There were five Supreme Court opinions handed down today as well as an important grant respecting the responsibility of the Bush Administration to carry out greenhouse gases regulations. Given the so-called Chevron doctrine and general flexibility given to executing even possibly open to debate laws, this is not too promising. On the subject: Digby links up to a review piece by Dr. James Hansen, reminding how Bushie political appointees tried to silence his science based fears re global warming. Elsewhere, we learn about another aspect of this "antiscientific administration" respecting Iraq intel. Uncomfortable (inconvenient?) "objective truth" is rejected in both cases.
Two rulings stand out. Kansas v. Marsh (5-4) held: "Kansas' capital sentencing statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, is constitutional." [Findlaw summary, Scotusblog has further discussion of these cases as well.] Justice Scalia concurred to parry with Justice Stevens (a common judicial fencing partner) and to a lesser degree Souter. Justice Souter wrote the main dissent, adding a lot of verbiage to explain that in death penalty cases ties should generally go to the defendant. He also references a broader point:
While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences, when the circumstances of the crime are aggravating factors and bear on predictions of future dangerousness.
Randall v. Sorrell: "A decision by a court of appeals holding that a Vermont campaign finance statute's contribution limits were constitutional and that its expenditure limits may be constitutional is reversed and the matter remanded for further proceedings." This is far from surprising, especially given the low limits involved, but the breakdown was pretty interesting. Justice Breyer (with Roberts and Alito, the latter not completely joining in) wrote the plurality ... Breyer? Yes ... it is an example (e.g., school drug testing and funding of religious schools) where he has some a centrist position, doing his pragmatic thing. Those who label him as some knee-jerk liberal should check their own reflexes. Sometimes, the other side is guilty of too easy applying labels, but the sin works both ways.*
Justice Kennedy concurred separately, generally dubious about current campaign finance jurisprudence, believing that it is both hard to apply and probably too restrictive of speech/association interests. I am with him on that ... Thomas/Scalia bluntly dissented from current doctrine, arguing Buckley v. Valeo is too sympathetic to regulation. As to the dissents ... Justice Stevens goes the other way -- he would allow expenditure limits, which current doctrine holds are not allowed. Such a limit on how much one can spend was now partly defended by the "new" (the plurality did not agree it was a novel claim) concern about candidates spending so much time raising money. Stevens:
But, of course, while a car cannot run without fuel, a candidate can speak without spending money. And while a car can only travel so many miles per gallon, there is no limit on the number of speeches or interviews a candidate may give on a limited budget. Moreover, provided that this budget is above a certain threshold, a candidate can exercise due care to ensure that her message reaches all voters. Just as a driver need not use a Hummer to reach her destination, so a candidate need not flood the airways with ceaseless sound-bites of trivial information in order to provide voters with reasons to support her.
Indeed, the examples of effective speech in the political arena that did not depend on any significant expenditure by the campaigner are legion. It was the content of William Jennings Bryan's comments on the "Cross of Gold"--and William McKinley's responses delivered from his front porch in Canton, Ohio--rather than any expenditure of money that appealed to their cost-free audiences. Neither Abraham Lincoln nor John F. Kennedy paid for the opportunity to engage in the debates with Stephen Douglas and Richard Nixon that may well have determined the outcomes of Presidential elections.
The plurality rested on precedent respecting the expenditure matter, only noting that the "new claim" was addressed before, so was not a compelling reason to overturn precedent. Souter (who wrote the primary dissent with Stevens/Ginsburg joining) disagreed that precedent necessarily required no expenditure limits at all. Stevens thought reasonable minds could disagree on the point, so firmly spoke for reversal. The current rule is surely not cost-free, though there are alternatives to expenditure limits (e.g., free air time). But, his reasoning is question begging. I also note he cites a previous cases to show Buckley reversed previous allowances for expenditure limits, but one such case involved union expenditures ... surely a different matter.
How exactly is there "no limit" on the number of speeches a candidate may give on a limited budget -- those things time and money, even if we are talking about a meeting at some local club. How do we determine if "trivial information" is involved? "Ceaseless?" A handful of political ads can be quite expensive ... again, free air time might help a lot more than expenditure limits as would quid pro quo public funding. McKinley's campaign is a particularly poor example, since his campaigns might be deemed the first modern campaign, one the spent sizable funds to promote their message to countless groups. [Such spending in part led to early 20th Century limits on corporate spending.] And, how about those candidates actually kept out of the debates (sometimes, incumbents even refuse to agree to have one) -- obviously not close enough to be elected anyway.
I lean toward the more absolutist preferences of Scalia/Thomas though would probably vote with the somewhat less laissez faire approach of Justice Kennedy. But, on one matter, Justice Scalia's earlier remark in the campaign cases of a few years ago seems very appropriate: opposition in part seems to come from distaste with the message ... so-called ceaseless sound-bites of trivial information ... which simply cannot be grounds to limit a core means to promote speech and associational interests that hit to the core of the First Amendment. The plurality's approach might very well lead to confusion (not a novel thing these days), but the basic flavor seems right, and should not be seen as too much of a loss for those who support "campaign finance reform" since it accepts donation limits and is focused on balancing.
Thus, regulation is allowed ... progressives generally should hope Justice Breyer writes opinions that lean the way they might not like. Yes, expenditure limits are still a no no, but you knew that -- Alito/Roberts were not likely to both be more open to regulation than their predecessors, and if anything, Alito would be less so than O'Connor. And, I think progressive energy should be focused on other ways to deal with the difficulties involved in campaign finance than the Sisyphusian attempt to limit how much a candidate spends – limits on how much they receive is a hard enough task, putting aside thirty years of judicial precedent on the matter.
Arbitrary line drawing is the least of their problems, though it is enough. The problem, per some of the concurrences, arises on the contribution end as well, but at least fears of unjust influence and so forth are stronger there. Buckley split the baby a bit, and unlike in Solomon’s time (where the proposal was much more literal), it is a workable path … thus, the Court’s predominant pragmatist took it on here.
[The other opinions are of note. One had Justice Scalia write the 5-4 opinion joined by the libs, Alito the dissent, involving a clear statement respecting a right to a lawyer of one's choice. Sometimes, Scalia's approach has liberal effects. Another underlines the importance of clarity in legislation and how the courts can deal with open to debate laws. And, the third puts a questionable limit on a recent trend that in part honored the role of juries. OTOH, see here for further discussion.]
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* The opinion opens with a succinct summary underlining the pragmatic approach which in part respects precedent on the expenditure issue:
We here consider the constitutionality of a Vermont campaign finance statute that limits both (1) the amounts that candidates for state office may spend on their campaigns (expenditure limitations) and (2) the amounts that individuals, organizations, and political parties may contribute to those campaigns (contribution limitations). Vt. Stat. Ann., Tit. 17, §2801 et seq. (2002). We hold that both sets of limitations are inconsistent with the First Amendment. Well-established precedent makes clear that the expenditure limits violate the First Amendment. Buckley v. Valeo, 424 U. S. 1, 54-58 (1976) (per curiam). The contribution limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisfy the First Amendment's requirement of careful tailoring. Id., at 25-30. That is to say, they impose burdens upon First Amendment interests that (when viewed in light of the statute's legitimate objectives) are disproportionately severe.