Campaign Finance

First Opinion by James Ho (a Recently Appointed Fifth Circuit Judge)

It's a dissent from denial of rehearing en banc, joined by Judge Edith Jones, in a case that upheld a $350 cap for contributions to Austin City Council races.

|The Volokh Conspiracy |

Very interesting—I've long known Jim and admired his work, and this opinion (Zimmerman v. City of Austin) shows his qualities well. I myself am more open to campaign contribution limits than he (or his former boss, Justice Thomas) is; I explain my thinking briefly in this article, which shows me to be one of the few people who thinks Buckley v. Valeo's upholding of sufficiently high contribution limits but striking down of independent expenditure limits is basically right as a constitutional matter. But the dissent makes a strong case that $350 limits are unconstitutionally low, given Randall v. Sorrell and notwithstanding Nixon v. Shrink Missouri PAC.

A funny coincidence: The panel opinion, which Judges Ho and Jones would have had the court reconsider en banc, was joined by Jim's other former judicial boss, Judge Jerry Smith.

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  1. No, I can’t think of anything clever to say about this.

    1. Oh, come on…there’s a ‘Judge Ho’ in here.

    2. Ho backs ho?

  2. My favorite paragraph from the whole opinion:

    “To be sure, many Americans of good faith bemoan the amount of money spent on campaign contributions and political speech. But if you don’t like big money in politics, then you should oppose big government in our lives. Because the former is a necessary consequence of the latter. When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen’s prerogative?it becomes a human necessity. This is the inevitable result of a government that would be unrecognizable to our Founders. See, e.g., NFIB v. Sebelius, 567 U.S. 519 (2012).”

    1. I don’t know that I’d love a legal opinion that broke off to do an op ed about the virtues of liberalism generally…

      But then I’m not one of those conservatives who thinks the judiciary is too political!

    2. I did not think that was appropriate for a judicial opinion. Sounds like an op-ed, not judicial reasoning.

      1. Glad it wasn’t just me. Agree or disagree with the sentiment, but I don’t see who anyone who bemoans judicial activism could interpret that statement as other than a call for judicial activism.

        Might get a little leeway because it’s not a controlling opinion but a dissent, but still…

        1. Please elaborate: How was that a call for “judicial activism.”

      2. He included a two-paragraph policy point at the conclusion of his opinion. If you think there’s something wrong with that, you’re quite dumb.

        1. If you don’t like Judges advocating for policy in their opinions you’re quite dumb?

          1. Policy considerations are commonplace in judicial decisionmaking, whether you ‘like’ it or not.

            But you know that, Retardm0. You’ve been playing dumb on this blog for over a decade, loser.

            1. Considerations do not mean sweeping advocacy.

              You do seem nice, though!

              1. Log off, you quibbling twat.

                1. Don’t worry, I’m heading out in a couple of hours.

                  In the meantime, I sure am enjoying our elucidating debate.

  3. There has been some strong pushback, including by Orin Kerr, about the dissent here.

    I don’t know how far to take that — dissents repeatedly are quite personal, including stating a certain ideological perspective and think there is more validity in that respect. It being his first opinion makes it stand out but probably can find a range of dissents (including of Justice Scalia — one involving Ten Commandments and 9/11 come to mind) as or more notable in this respect.

    1. Orin is a NeverTrumper who has lost his mind. His attempt to blame the law clerks for this paragraph in the opinion was even more bizarre and pathetic.

      1. Or charitable.

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