In its order issued this morning, the Supreme Court agreed to hear two campaign finance cases, one involving spending limits in Vermont legislative races (Sorrell), and the other involving corporate expenditures on “genuine issue ads” during the election season (WRTL). You can find my descriptions of the cases and links to appellate documents and commentary here.
My predictions were half right. I thought the Court would take Sorrell (and I expect to see a reversal). I did not expect to see the Court take the WRTL case. One question is which Justices voted to hear that case, something that is not noted on the order. Justice O’Connor’s vote, for example, would be very interesting to know.
These are very interesting developments. In recent years, the Court has divided 5-4 in some major campaign finance decisions. With the replacement of Chief Justice Rehnquist and (presumably) Justice O’Connor, we could well be looking at a new majority on the Court that will start voting to strike down campaign finance laws as inconsistent with the First Amendment. (Indeed, this might be an area where we will see quickly to a Chief Justice Roberts how much respect for recent constitutional precedent matters.) Since the 1976 Buckley case, the Court’s cases have swung back and forth like a pendulum, in recent years in favor of upholding campaign finance regulations. We could well be entering the period where the pendulum swings back.