Randall Thoughts
I've been plowing through Randall v Sorrell tonight and have a few initial thoughts. It is important to note the views of Chief Justice Roberts and Justice Alito. This is the first time that either of them have taken on the issue of campaign finance law on the Court. Neither one of them signed on to the Thomas concurrence, which stated his (and Scalia's) opinion that all contribution limits violate the First Amendment. As they stand, they feel that some limits are acceptable. I'm skeptical that they will be pulled to Thomas' view, but they may be persuaded to Kennedy's less extreme view.
Justice Breyer's plurality opinion settles nothing but this case. These cases will continue to come before the Court, where the all-knowing Nine will decide if the limits "go too far". Breyer is a huge believer in cost-benefit analysis, and you can see this balancing and weighing in full effect here. It drives me nuts because it seems so freaking ad hoc. Eh, that's Breyer. I think he sees his role on the Court as Captain Oversight... over everything.
Justice Alito's concurrence is short but incredibly important. He uses it to address the issue of stare decisis and the possibility of overruling Buckley v Valeo. Alito makes it clear that if you want him to overturn something, you better devote a decent chunk of your brief explaining why he should do it. I think this shows that Alito is serious about stare decisis. He wants a compelling reason to overturn precedent. Take note, all of you petitioners for next term.
Justice Stevens dusted off his favorite "money isn't speech" argument in his dissent. Eugene Volokh has a post explaining why that nifty catchphrase (that I heard way too many times in my Legislation class last semester) is pretty hollow...
My overall feeling after reading the case is best described as lukewarm. I'm glad that the Vermont laws were struck down. I wish that there was a more coherent opinion, maybe even a majority opinion instead of a plurality. I would prefer some bright line rules in this area, but I know that's asking for the moon. I'm interested to see where Roberts and Alito will draw their "too low" lines for contribution limits. The story of campaign finance law ends the same way again, to be continued...
Justice Breyer's plurality opinion settles nothing but this case. These cases will continue to come before the Court, where the all-knowing Nine will decide if the limits "go too far". Breyer is a huge believer in cost-benefit analysis, and you can see this balancing and weighing in full effect here. It drives me nuts because it seems so freaking ad hoc. Eh, that's Breyer. I think he sees his role on the Court as Captain Oversight... over everything.
Justice Alito's concurrence is short but incredibly important. He uses it to address the issue of stare decisis and the possibility of overruling Buckley v Valeo. Alito makes it clear that if you want him to overturn something, you better devote a decent chunk of your brief explaining why he should do it. I think this shows that Alito is serious about stare decisis. He wants a compelling reason to overturn precedent. Take note, all of you petitioners for next term.
Justice Stevens dusted off his favorite "money isn't speech" argument in his dissent. Eugene Volokh has a post explaining why that nifty catchphrase (that I heard way too many times in my Legislation class last semester) is pretty hollow...
Just consider some analogies. Would we say "money is abortion"? I doubt it, but a law that banned the spending of money would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.Everyone, including 86 year old Supreme Court Justices, should stop using this slogan.
Likewise, we wouldn't say "money is education," or "money is lawyering." Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one's child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 - or even $200,000 - for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that "it is quite wrong to equate money and [education / lawyering]" would be an unsound response.
My overall feeling after reading the case is best described as lukewarm. I'm glad that the Vermont laws were struck down. I wish that there was a more coherent opinion, maybe even a majority opinion instead of a plurality. I would prefer some bright line rules in this area, but I know that's asking for the moon. I'm interested to see where Roberts and Alito will draw their "too low" lines for contribution limits. The story of campaign finance law ends the same way again, to be continued...
