The Fix explores.
Dan Tokaji has posted this draft on SSRN. Here is the abstract:
- This article discusses the U.S. Supreme Court’s rejection of equality as a democratic value that may sometimes justify limits on campaign spending. Although the U.S. Supreme Court has long voiced skepticism of egalitarian rationales for campaign finance regulation, it has sometimes allowed equality to come in through the back door, disguised as an anticorruption rationale. Citizens United v. Federal Election Commission obliterates equality as a rationale for regulation in any form. Its prohibition on egalitarian justifications applies to both the inputs and the outputs of the democratic process. In other words, spending limits may not be used to equalize citizens’ ability to elect candidates to office (“electoral equality”) or to equalize citizens’ influence on decisions made by those in office (“policymaking equality”). The consequence of equality’s banishment is an impoverished political dialogue about campaign finance regulation in the United States. Those in the public sphere are unable to talk honestly about the most important value that regulation might serve.
The article traces the roots of equality’s banishment from campaign finance discourse, explains how Citizens United makes things worse, and suggests a path toward a more constructive U.S. jurisprudence. In so doing, it uses Canadian campaign finance law as a counterpoint, one that highlights flaws in the American approach. The two countries stand at opposite ends of the spectrum when it comes to equality. Canada’s Parliament and Supreme Court have embraced an egalitarian vision of democracy with the same gusto that the U.S. Supreme Court has disowned it. This difference has major consequences on the public discourse surrounding campaign finance regulation and the very structure of democracy.
The article starts with a discussion of Buckley v. Valeo and its progeny, including cases that subtly depart from that decision’s anti-egalitarian refrain. It distills from this line of precedent four democratic values: (1) liberty, (2) equality, (3) anti-corruption, and (4) competitiveness. Historically, the battles over campaign finance in the U.S. have mostly focused on the values of liberty and anti-corruption. But the really important question is how to promote equality without diminishing fair competition. After assessing the Court’s renewed anti-egalitarian turn in Citizens United, the article contrasts Canadian constitutional law, showing how it does a better job of affirming the sometimes competing values at stake in the regulation of campaign finance. It closes by assessing the prospects for a rebirth of equality as a rationale for regulation, should the composition of the U.S Supreme Court change.
Ideological Cartography offers this post with an interesting accompanying graphic.
David Gans has written this post for Text & History.
I have posted this new draft on SSRN. Here is the abstract:
- This is a short Essay prepared for a panel on the Roberts Court as an Overruling Court for an Emory Law Journal conference.
Without doubt, the Supreme Court’s most prominent decision so far under the leadership of Chief Justice John Roberts has been Citizens United v. FEC. The Court has been subject to heavy criticism for this case. A Barry Friedman has pointed out in a recent Georgetown Law Journal article, the Supreme Court does not always move the law in such a prominent fashion. It also engages in “stealth overruling.” when it “fail[s] to extend a precedent to the conclusion mandated by its rationale” or it “reduc[es] a precedent to nothing”
I leave to others the question whether the Roberts Court empirically engages in more (stealth) overruling than earlier groups of Supreme Court justices did, and even if the Roberts Court does so, whether a higher overruling rate is grounds for condemnation. Instead, the more modest aim of this brief Essay is to catalog additional tools that Supreme Court Justices can use beyond express and stealth overruling to move the law. I also explain why Justices might choose to use one, rather than another, of these tools to move the law.
In particular, I analyze four additional tools. Anticipatory overruling occurs when the Court does not overrule precedent but indicates its intention to do so in a future case. Invitations exist when one or more Justices (1) invite litigants to argue for the overruling of precedent in future cases or (2) invite Congress to overrule Supreme Court statutory precedent. Time bombs exist when Justices include within a case subtle dicta or analysis not necessary to decide it with an eye toward influencing how the Court will decide a future case. Inadvertence occurs when the Court changes the law without consciously attempting to do so, through attempts to restate existing law in line with the writing Justice’s values.
These tools demonstrate how Justices with a long time horizon and patience sometimes can move the law both subtly (sometimes even unconsciously) and forcefully. Part I describes these four tools, using illustrations from Roberts Court cases primarily in the election law and remedies arenas. Part II briefly compares the costs and benefits of these tools to each other and to express and stealth overruling, and notes that the tools function to send signals to different audiences: lower courts, Congress, the public, and other members of the Court.
This is a very early draft, and so comments are especially welcome.
The Hill offers this report.
Jonathan Adler has written this post for the Volokh Conspiracy.
Robert Natelson has the lead article (not yet at the journal’s home page) in the University of Pennsylvania Journal of Constitutional Law.
The Washington Post offers this report.
The NY Times offers this report.
A candidate who acts as his own treasurer has a fool for a client?
See this Moritz comment.