Maybe it is my head cold that is clouding my judgment, but if Brad Smith is offering 80:20 odds on the Supreme Court upholding spending limits in candidate campaigns in the Vermont case I’d be willing to wager a substantial sum on the other side.
I agree with Marty Lederman’s read of the Court from his earlier post today. I count at most four votes to uphold spending limits even under a much more narrowly tailored (and less draconian) law than Vermont’s—-and I would be quite unsure as to whether to put Justice Souter in there as the fourth vote.
Is Brad suggesting that either Chief Justice Roberts or Justice O’Connor’s replacement would provide a fifth vote in this direction? I find this incredibly hard to believe, given the Chief’s recent answer to Judiciary Commitee questions that he joined the Reagan and Bush II administrations because he generally agreed with their policies. People who generally agree with those administration’s policies are not even likely to vote to uphold contribution limits, and are fairly likely (but for respect for existing precedent) to strike down longstanding spending limits in the corporate and union context. But to uphold candidate spending limits? I cannot see it happening with this change of the Court (even though, like Brad, I predicted a move in that direction if the current Court stayed the same, with the big question being whether Justice O’Connor would come along for the ride).
Why would the Court have granted cert if a majority liked the spending limits? Rather, if you are Gingburg, Breyer, or Stevens, you don’t want this case heard, and you want things to percolate in the states for a while, showing that spending limits can indeed work. My guess is that the votes to grant cert. came from Kennedy, Scalia, Thomas and O’Connor, with the first three gambling that the new Chief and O’Connor’s replacement are likely to vote with them, even if those two would not go even further (as Thomas and Scalia and possibly Kennedy would) in striking down contribution limits as well.
It is indeed an odd day when Brad wants to play Bonifaz, Eugene is offering NVRI advice, and I’m saying I’d like to be in Jim Bopp’s shoes.
UPDATE: Brad Smith clarifies that he is not making his 80:20 prediction based upon current court personnel. I apologize for misreading his original remark.