August 10, 2006

"The Per Curiam Precedent of Steel: Buckley v. Valeo as Superprecedent? Clues from Wisconsin and Vermont

Allison Hayward has posted this draft on SSRN (forthcoming Cato Supreme Court Review). I very much want to read this as I'm writing my own article on the Vermont case. Here is the abstract:

    Randall v. Sorrell and Wisconsin Right to Life v. FEC brought before the Supreme Court a variety of campaign finance regulations, from contribution limits and expenditure limits to restrictions on incorporated entities. Despite expressions of discomfort by many Justices with the way modern campaign finance is regulated, the Court declined to rework Buckley v. Valeo's landmark 1976 holding to relieve that discomfort. Nor did it sanction a more lenient constitutional test to satisfy those other Justices who would prefer to give legislatures and Congress leeway to regulate politics. The Court had the opportunity to revisit Buckley and did not. Has Buckley now become unassailable -- what some might call a superprecedent?

    This Essay argues that, even were one to grant the existence of a class of decisions that are "superprecedents," Buckley v. Valeo is a poor candidate for that classification. It first reviews the Randall and Wisconsin decisions from this Term, and how they use the Court's campaign finance precedents. It then discusses what might be meant by "superprecedent" and how a superprecedent might be identified. Then, looking at Buckley's history, analysis and application, it discusses whether Buckley should be classified as a superprecedent, and answers that question "no." Finally, it revisits what Buckley-type thinking has done to campaign finance regulation, and makes some preliminary suggestions for how, if the opportunity presents itself again, the Court might rework its analysis.

Posted by Rick Hasen at August 10, 2006 05:01 PM