Eminent Domain

Con law and legal ethics expert Professor Ronald Rotunda has an article trying to explain the recent history and current state of campaign finance law according to the Supreme Court. He summarizes the holding of Buckley v Valeo, which is where the mess started. Then he mentions McConnell v FEC...

McConnell v. Federal Election Commission (2003) upheld almost all of the Bipartisan Campaign Reform Act of 2002, in opinions that totaled nearly 300 pages. The case was a loss for groups like the ACLU, the AFL-CIO, and the Chamber of Commerce, which filed briefs opposing the restrictions on grounds of free speech. (Newspapers routinely report that only "“conservatives"” oppose these restrictions; they must not read who signs the briefs.) And it was a tremendous victory for those who support government regulation.

If you read the entire McConnell opinion, your eyes will bleed. Mine did.

But seriously... Rotunda moves on to the most recent opinion, Randall v Sorrell. He looks at Stevens' dissent, which I did not cover in my post...

Stevens, dissenting, also argued that Buckley should go, because he believed it protected free speech too much. He yearned for the cost-free campaigns represented by the Lincoln-Douglas debates, but neglected to mention that in that long-ago time, they campaigned for the Senate before there was a Seventeenth Amendment, when there was no popular election for U.S. Senators.

With all due respect to Justice Stevens, this was a pretty Grampa Simpson moment in his opinion. I was waiting for him to start talk about the time he caught the ferry to Shelbyville and tied an onion to his belt (which was the style at the time).

After describing the tome-like opinions that the Court has given us in the past, Rotunda sees a glimmer of hope...

What will the future bring? Longer opinions, if the Court tries to keep the complex distinctions of the prior cases.

There are hints, however, that the Court may not do that. Breyer'’s plurality (joined by Roberts and Alito) advised that the appellate courts should review the record "“independently,"” and not defer to the lower courts to make sure that the restrictions on campaign financing are "narrowly tailored."

So perhaps hope is warranted for a shorter decision in the future, one that remedies the confusion created by the Court's past decisions on campaign finance.

As nice as that would be, I don't know if it's going to happen. I think that we are stuck with the long campaign finance opinions, at least with these Justices (a situation that may change soon).