Law.com/The Recorder has posted my commentary on the Supreme Court’s decision in WRTL this week. It begins:
Earlier this week the Supreme Court took a major step toward the deregulation of American campaign financing with its decision in Wisconsin Right to Life v. FEC. Though the opinion is important for its actual holding — corporations and unions are going to have a much easier time paying for election-related ads out of their general treasury funds rather than from harder-to-use political action committees (or PACs) –i its real significance is what it says about the court’s new attitude towards money and politics in general, and Chief Justice John Roberts’ views about how to best dismantle remaining liberal precedents on the court.
Beyond campaign finance, the court’s decision in WRTL shows precisely how Roberts intends to undo the remaining liberal precedents of the past. Rather than expressly overrule precedents with which he disagrees, he is more content to give the appearance of “tweaking” the law — all the while doing radical surgery. It is similar to the way the court treated the abortion question earlier this term in Carhart, redefining (without expressly overruling) the “undue burden” standard to make it much easier for states to impose limits on abortion.
No one is fooled, however. Scalia acidly noted in a footnote to his concurring opinion in WRTL that besides Roberts and Alito, the seven remaining justices on the court — who agree about little else in the campaign finance arena — agree that the chief’s opinion essentially overrules McConnell: “This faux judicial restraint is judicial obfuscation.”
At his confirmation hearing, Roberts talked of judicial modesty and the building of judicial consensus. By those measures, his performance thus far has been disappointing, with a whole slew of 5-4 decisions coming down this term. But for those who want to see a radical sea change in constitutional law in the direction of conservatism and deregulation, the Roberts Court so far appears to be quite successful.
Bob Bauer responds, I think unfairly characterizing me as a knee-jerk supporter of reform. Two recent law review articles I’ve written on campaign finance (this one in Penn and this one in Ohio State) are quite critical of the New Deference Cases that characterized the end of the O’Connor Court. I’ve been no fan of the New Deference.
I am writing a much more extensive piece on WRTL, and it will respond to Bob’s criticisms (as well as offer other analysis) in great detail.
Emily Bazelon has this fascinating piece at Slate going back to liberals and moderates who supported the Roberts nomination and asking them what they think now about their choice. My favorite quote here is Cass Sunstein’s: “I’m surprised that Roberts has shown no unpredictability at all; in the big cases, he’s been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!”
Not all liberals and moderates took this view. In August 2005, I published Roberts’ Iffy Support for Voting Rights in the LA Times. See also this Findlaw column on Justice Alito’s nomination, noting: “In the last four decades, the Court has set out rules on everything from campaign finance to gerrymandering to minority voting rights — even intervening in the 2000 presidential election fight in Florida in Bush v. Gore. And, in recent years, Justice O’Connor, whom Judge Alito might replace, has held the swing vote in the most important of these cases. For all these reasons, the Senate must press Judge Alito to clarify his views in this area. Judge Alito’s views on these cases could be decisive on the Supreme Court, and the consequences for our political system could be enormous.”
And in an academic piece written as Justice Alito joined Justice Roberts on the Court, No Exit? The Roberts Court and the Future of Election Law, I concluded:
Making predictions is always dangerous, and the conclusions I reach should be taken in the tentative spirit in which they are made. My best guess is that a decade from now, we may well face a set of election law rules that differ a great deal from today’s rules. It may be that in 2016, individuals, corporations, and unions will be free to give as much money as they want to any candidate or group, subject to the filing of disclosure reports. The federal government’s ability to protect the voting rights of minority groups that historically have been the victims of state discrimination may be curtailed by the inability of Congress to require any jurisdictions to submit their voting changes for preclearance and by an emasculated reading of Section 2 of the Voting Rights Act. The ability of states to manipulate election rules for partisan gain may present the greatest danger as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.
Time will tell how close my remaining predictions come to political reality.
Today’s order list provides:
06-589 CHRISTIAN CIVIC LEAGUE OF MAINE V. FEC, ET AL.
The judgment is vacated and the case is remanded to the United States District Court for the District of Columbia for
further consideration in light of Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. ___ (2007).
More background about the case, and links to documents here.
Fran Hill has this post on the CLC Blog.
Tova Wang has written this report for the Century Foundation.
Cynthia Tucker offers this Atlanta Journal Constitution column, which begins: “Former metro Atlantan Hans von Spakovsky is among the GOP hacks who perverted the U.S. Department of Justice– trashing constitutional principles, rewarding partisanship over competence and converting the entire machinery into an arm of the Republican Party. His specialty was suppressing voting by Americans of color, who are more likely to support Democrats; he played a starring role in a nationwide effort to disenfranchise poor blacks, Latinos and Native Americans.”
McClatchy offers this report.
The Olympian (Washington State) offers this report.
The Fort Worth Star-Telegram offers this report.
The Sacramento Bee offers this report.
Michael Slater and Teresa James have this commentary at Tom Paine.
Roll Call offers this very important report ($) on the options the FEC faces in light of WRTL. It’s not very pretty.
CQ offers this report, which begins: “Senate Minority Leader Mitch McConnell, R-Ky., has blocked appointment of Senate conferees on the stalled lobbying bill, casting doubt on the future of the biggest overhaul of ethics and lobbying legislation in a dozen years.”
How Big a Setback for McCain-Feingold appears at the Time Magazine blog.
Ruling Could Spur More Ad; Decision on Campaign Finance May Mean Influx of ‘Soft Money’ is in the Washington Post.
Brad Smith has written The Speech Police, an oped for the Wall Street Journal.
Bob Bauer blogs about Justice Scalia’s WRTL concurrence.
Frank Pasquale blogs “Game over for Campaign Finance Reform?” at Concurring Opinions.
WRTL gets prominent play in the Breakfast Table conversations between Dahlia Lithwick and Walter Dellinger at Slate.