More on Justice Alito, Campaign Finance and Kittens

I have received a number of comments on my recent Slate commentary, Crush Democracy but Save the Kittens.
I think I’d have to go back to Bush v. Gore or the California recall to find as much negative reaction (in emails, on the listserv and otherwise) to an oped/commentary of mine. I just received an email accusing me of supporting the torturing of animals. (Really.) I’ve also received some positive comments, too, but many more negative ones than usual.
Rick Pildes posted the following comment on the election law listserv (reprinted with permission):

    With all due respect to my friend Rick Hasen, anyone who thinks Justice Alito is hypocritical or inconsistent in voting “for” the kittens and “against” campaign-finance regulation has to think Justice Stevens, Breyer, Ginsburg, and Sotomayor are just as hypocritical and inconsistent in voting “against” the kittens and “for” campaign-finance regulation.

But when someone like Rick, whom I hold in the highest esteem, criticizes a column, it makes me think twice, and I think in this case part of the criticism stems from the fact that I inartfully stated my point. The message about Justice Alito I was trying to get across was not one of hypocrisy (though in retrospect I think that is a fair reading of what I wrote). It was that when it comes to campaign finance regulation, Justice Alito does not appear to be willing to engage in serious balancing—or even a recognition of the serious constitutional issues on both sides of the equation (as Justice Breyer more artfully put it in his Shrink Missouri concurrence). I’d like Justice Alito to take the state interests more seriously in the campaign finance cases, in the same way that he was willing to do so in the kitten case. If the First Amendment need not be read in an absolutist way in one set of cases, it need not be read in an absolutist way in the other set of cases either.

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