What Roberts Might Overturn First

Matt Welch | September 28, 2005

Good news for those of us who think McCain-Feingold's restrictions on political speech violate the letter and spirit of the First Amendment -- the Supreme Court has decided to take on two campaign finance cases in its next term. Election-law specialist Rick Hasen comments:

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.

Comments

|9.28.05 @ 11:57AM|#

Swing pendulum, swing.

|9.28.05 @ 12:10PM|#

I'll believe it when I see it.

KipEsquire|9.28.05 @ 12:22PM|#

It makes no sense that Michael Bloomberg can spend $70 million to get elected, but I can't spend $70,000 opposing him, unless I run myself.

Supreme Court to Revisit Campaign Contribution Limits

|9.28.05 @ 12:31PM|#

Bah. Let's talk about the really important Supreme Court case:

Anna Nicole Smith.

http://tinyurl.com/e2k9y

(It's like the best of both worlds: mindless celebrity 'news' and the Supreme Court! You got your peanut butter in my chocolate!)

drf|9.28.05 @ 1:00PM|#

oooh, the Dread Pirate Roberts!

|9.28.05 @ 1:17PM|#

The court decided to hear that Anna Nicole Smith case as a way of paving out inconsistancies in regards to jurisdiction rules. I think its safe to say that Ms. Smith will not actually be in the courtroom during the proceedings, given that (a) there are no cameras allowed, and (b) she might do a striptease and induce John Paul Stevens to have a heart attack. Of course, the Bush administration may hope that she will do (b), so that W can replace a hard lefty with a hard righty.

Anyway, I think its safe to say that Roberts will not want his first majority opinion to be about this case.

|9.28.05 @ 1:32PM|#

W/o respect Constitutional interpretation, the plain logic of having few to no restriction on campaign finance spending is so crystal clear to me that I don't understand what McCain et al ever thought they were going to accomplish.

R C Dean|9.28.05 @ 1:53PM|#

panurge, did you really mean to juxtapose "she might do a striptease" and "so that W can replace a hard lefty with a hard righty"?

Just asking, is all.

Rich Ard|9.28.05 @ 2:14PM|#

Everyone knows Stevens dresses left.

|9.28.05 @ 2:38PM|#

And, according to that article, Anna Nicole Smith's attorney is named Howard K. Stern. Maybe they can toss in a ruling on indecency laws while they're all in the same room.

|9.28.05 @ 2:39PM|#

Actually, Roberts will *by himself* make no difference, since he officially replaces Rehnquist. It's who is appointed to fill the other (O'Connor) vacancy that makes the difference--and already some Democrats (and even a few Republicans like Chaffee) are saying that just becuase they are voting for Roberts doesn't necessarily mean they would vote to confirm a Roberts clone for the O'Connor vacancy.

I hope the next justice-designate is asked more pointed questions than Roberts. E.g., "Judge X, without asking you how you would decide any particular case, what do you think of gold-digging Playmates of the Year who marry elderly billionaries in the hope of soon inheriting their money?"

|9.28.05 @ 3:09PM|#

"Now I ain't sayin' she a gold-digga, but she ain't messin' with no broke nigga."

Larry A|9.28.05 @ 3:16PM|#

W/o respect Constitutional interpretation, the plain logic of having few to no restriction on campaign finance spending is so crystal clear to me that I don't understand what McCain et al ever thought they were going to accomplish.

Obviously anyone who uses "logic" and "McCain" in the same sentence is not literate enough to decide who his campaign contributions should go to. ;-)

The members of Congress voted for M/F to limit independent public debate and help insure their own reelection.

|9.28.05 @ 3:32PM|#

"Now I ain't sayin' she a gold-digga, but she ain't messin' with no broke nigga."

|9.28.05 @ 5:24PM|#

B.P.: "And, according to that article, Anna Nicole Smith's attorney is named Howard K. Stern. Maybe they can toss in a ruling on indecency laws while they're all in the same room."

Two different Howard Sterns. For their historic meeting, see http://www.lardbiscuit.com/annanicoleshow/ep110.html

|9.28.05 @ 6:06PM|#

I've always had a hard time with this one, but would be happy to be convinced otherwise--when did money become speech? If the first amendment protects campaign contributions, does that mean that some people (millionaires, for instance, or corporations) have more free speech than others? Given the importance of advertising in politics, more money means better chances at success. If you buy the proposition that only a great candidate can raise great amounts of money, I guess this is ok. But the evidence suggests otherwise. Why not try to increase equality of political opportunity, so that everyone has roughly the same amount of free speech to exercse? I would love a completely publicly funded campaign, with no comtributions at all, and the feds forcing the broadcast nets who make their living off the public's spectrum to provide free advertising.

R C Dean|9.28.05 @ 6:18PM|#

I've always had a hard time with this one, but would be happy to be convinced otherwise--when did money become speech?

Oh, way back in the day, andy.

If you believe that your right to free speech encompasses more than your right to say unamplified words to whoever is within range of your voice, then you are well on your way to equating money with speech.

After all, it is money that buys your pen and paper, your bullhorn, your stage, your microphone, your computer, every single thing that you might use to communicate your message to an audience larger than those within range of your voice.

If you think the right to free speech should be a little larger than the right to talk to whoever is standing next to you, then you must concede that the right to free speech protects your right to expend your resources (that is, money) communicating your message to a larger audience.

|9.28.05 @ 8:13PM|#

RC Dean and Andy-

Good arguments for campaign finance reform don't rely on denying that money enables speech, and hence that the first amendment should protect it. If the first amendment protections were the only relevant political values here, then RC's case would be sufficient to bar, say, mandatory public financing. But this is not how constitutional rights do or should work. Rights conflict- here, the right to political equality justifies some carefully delineated infringements of the right to free speech. Why is political equality important enough to do this? Well, because the very legitimacy of the law requires that it be produced in a certain way- why, after all, should I be obligated to follow laws that were produced by a process in which Bill Gates has umpteen-times more influence than I.

|9.28.05 @ 9:11PM|#

"I would love a completely publicly funded campaign, with no comtributions at all, and the feds forcing the broadcast nets who make their living off the public's spectrum to provide free advertising."-andy

Broadcast time is a finite resource, you do understand that the potential list of candidates will soon overwhelm the supply unless there is some way of weeding out the pretender's? Under your dream system who gets to do the weeding out, if not the government? Since some agency of the government will decide who gets to excercise their speech rights, how is this not the government restricting speech?

|9.28.05 @ 9:19PM|#

andy,

BTW, that the rich have more resources to utilize their freedoms is kind of the definition of being rich. If you view this as a problem, then there are only three ways to solve it: abolish being rich, abolish being free, or both. You're most likely to get both.

|9.28.05 @ 9:54PM|#

when did money become speech?

Here's a simpler response. If Congress shall make no law abridging freedom of the press, then it can't make a law saying that no one is allowed to spend more than one dollar per month on newsprint and ink.

|9.28.05 @ 11:41PM|#

Sean,

I think you've confused 'enfranchisement' with 'influence'. There is no fundamental right to influence; your 'political equality right' muddles voting with speaking.

No amount of money will purchase Bill Gates a second vote in any election. But he's certainly able to purchase advertisements to ask others to vote as he intends to.

Whenever anyone says 'to protect right X, we must infringe upon right Y', I become immediately suspicious. There are very, very few occasions where that is the case, and most deal with threats to life and limb. In this instance, it's a false dichotomy. If Bill Gates wants to spend 50 million dollars on a pro-Bush ad campaign, it does not purchase a single vote; it purchases only the ad campaign. I'm perfectly able to resist the lure of beer ads, and choice of beer is certainly something I give less thought to than choice of candidate. There's no need whatsoever to infringe on his right to speak, and pay to broadcast that speech, to protect my right to my single vote.

If your claim somehow boils down to the word 'sheeple' or some variant of that, it rests wholly on the notion that people are drones to be led by the most clever advertisements. That's a fundamental view I do not share -- and thus it would be hard for us to come to any agreement on campaign donations as speech.

|9.29.05 @ 10:48AM|#

Isildur:

Briefly, the issue is not, I think, Bill Gates 'purchasing votes.' I have no qualms with people freely choosing to respond positively to political advertisements. If this were the only way influence could be 'bought', then I'd have no complaints. But our democratic system is a representative system, and succeeds in being democratic (and, I think, thereby succeeds in making legitimate law) only insofar as representatives treat their constituents equally. The worry, then, is not that citizens will vote for bad reasons (though this is a worry as well, but not one that we should address by use of the coercive apparatus of government), but rather that legislators will do so.

The issue that CFR is meant to address is not the influence money has on voters, but the influence that it clearly has on their representatives. This violates political equality in an unacceptable way by undermining the basis of representative democracy- by 'detaching', so to speak, the 'representatives' from the 'democracy.' Because we cannot expect politicians to be saints (quite the opposite), CFR is, I think, the only way (or at least by far the most effective way) to combat this problem.