The Supreme Court
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The Supreme Court's intervention in election law has been active, complex, and, in many material respects, indecipherable. The Supreme Court cannot decide what to do, if anything, about partisan gerrymandering, and its decisions on campaign finance—such as McConnell v. FEC—have also left a host of unanswered questions about the reach of Congressional regulation of political fundraising and spending. This space is concerned with the shape or absence of Court doctrine. With the vacancy created by the retirement of Justice O'Connor and still others very possible in the near future, major changes in the constitutional law affecting the conduct of politics may be expected.

Something To Be Said for Davis?

A Note on the Fate of the Millionaire’s Amendment and the Future of Public Financing

     The New York Times today surveyed the Court term with mixed feelings and worries about the future.  Campaign finance did not make the lists of the good or of the bad.  For this paper, a hardy editorial voice for conventional reform positions, the omission is something of an event.  The possibility of an oversight cannot be discounted, but neither can the chance that the Times did not really care all that much about the Millionaire’s Amendment.  Should it?

 

Justice Alito for the Court, in Davis

     What first strikes a reader of the Alito opinion for the Court in Davis v. FEC is that reasons are given but not deeply, and not within clear, discernible doctrinal lines.  The argument, moreover, seems caught between two directions—in one, the millionaire experiences a "penalty" or "burden" on her own speech, and in the other, the injury is less direct and flows from the distortion that government regulation introduces into the competitive struggle between two candidates.

 

Justice Stevens in Dissent, in Davis

    Justice Stevens’ dissent is a woefully unsatisfactory performance, and it is, in places, bizarre.  If this is the best possible defense of this provision, then the dissent as much as the majority opinion explains why the Millionaire’s Amendment was doomed.  And this dissent, like Souter’s in Wisconsin Right to Life or Breyer’s Active Liberty suggests that the Court’s progressive minority continues to flounder in applying or recasting constitutional doctrine in this field.

 

Davis v. FEC—First Thoughts on the Demise of the Millionaire’s Amendment

     The Supreme Court’s evisceration of the Millionaire’s Amendment comes as little surprise.  Not even the reasoning of the majority, previewed in oral argument, will catch many readers off-guard.  The Amendment risked, always, that the Congress had overreached, and behind this sentiment was the suspicion of motives: incumbents serving themselves, having the power to do with generous helpings.  Studies that suggested that the Amendment may not have pro-incumbent bias or effect in practice were never sufficient to erase the first impressions.

 

Determining Legacy and Influence in the Appraisal of Justice O’Connor

    There is a vast difference between influence and a legacy.  Justice Sandra Day O’Connor was unquestionably influential.  Joan Biskupic, an admirer, wishes for her to be further credited with a legacy.  One area for which the legacy is claimed is campaign finance regulation, and it is here that one can recognize the influence without straining to make the case for a legacy.

 

Also...

"Partisan Judicial Activism" and Its Sources  5/29/08

Justice Souter and the Legislature, in Crawford and Elsewhere  4/30/08

Plot Twists and Predictable Turns in the Crawford Decision  4/29/08

Considering Again the Impact of the Roberts Court on Campaign Finance Regulation  4/7/08

When There is No Heartbreak for the Victims…  3/31/08

Participation Meets Contradiction  3/28/08

Political Parties in the Soup, at the Supreme Court  3/19/08

Nonprofit Asks Supreme Court To Review "Support or Oppose" Standard  3/12/08

Scalia at Princeton: “Enough is Enough”  3/11/08

McCain-Feingold and the Roberts Court  1/15/08