We have to admit, it has been more than a little entertaining over the past few months to watch the so-called “reform community” tie itself in knots trying to defend adherence to precedent and “judicial modesty” as the Supreme Court considers whether it should overrule Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission. (Question: how could the Court not, when the government has admitted, and still holds, that these precedents in fact would allow for the government to ban books?) First, most members of the reform community have a liberal view of the role of the courts, and understand judicial notions of precedent and judicial restraint only in characature, so their efforts to scold and shame conservatives into upholding an unconstitutional law doesn’t much wash.
Second, and more importantly, until very recently many of these same reform advocates were big fans of an active judiciary that would ignore precedent in the realm of campaign finance law.
Perhaps the most obvious candidate is the Brennan Center for Justice, the New York based outfit whose funders over the last decade have included a progressive rogue’s gallery of modern American corporations, such as Bear Stearns, Enron, and Philip Morris. Brennan argues that the Supreme Court should not overturn the Austin and McConnell precedents, yet it was barely a decade ago that Brennan, in conjunction with the Brookings Institute, whose experts are also no fans of overruling Austin, was publishing books calling on the Courts to overrule the more seminal, more entrenched campaign finance precedent of Buckley v. Valeo.
But why single out the Brennan Center? Just three years ago, virtually the entire “reform community” was urging the Supreme Court to openly or effectively overrule Buckley and permit legislatures to enact spending limits. The National Voting Rights Institute has helpfully collected excerpts from the many amicus briefs filed in the 2006 case of Randall v Sorrell calling for Buckley to be overruled or ignored. (Many briefs argued that it would not be necessary to overrule Buckley in order to uphold spending limits in Randall, but it was well known that in fact the entire Vermont law was developed and passed with the idea of launching a direcct challenge to Buckley.)
Professor Richard Hasen has been pounding away at his blog for the Court to exercise “restraint.” But in considering Randall three years ago, Hasen then hoped that the Court would refrain from ruling on Vermont’s spending limits. The Campaign Legal Center, writing on behalf of John McCain and others, took the same position. One might construe this as a form of judicial restraint, but the practical effect would have been to overrule Buckley’s holding that expenditure limits violate the Constitution. From the conservative/libertarian standpoint, this is not judicial modesty or restraint, but judicial slight of hand and gamesmanship, particularly as it was clear that all of these advocates would then urge the lower court to allow the limits to take effect. It is nothing short of disingenuous to suggest that upholding Vermont’s spending limits would have been anything less than a sea change in the law, a new and vastly different interpretation of Buckley than had existed for more than two decades, and, therefore, a practical overruling of Buckley. Indeed, proponents of Vermont’s law had passed it, as noted by Judge Ralph Winter in his dissent at the Court of Appeals level, specifically as “a vehicle for litigation to overturn Buckley,” and even designed specific features of the law to make sure that the case could not be decided on other grounds. As the National Voting Rights Institute wrote in its summary of the case after the Supreme Court’s decision, ” a narrow majority declined to overrule the Court’s 1976 decision in Buckley.”
The Court may or may not use Citizens United as a vehicle to overrule Austin and/or McConnell. Perhaps the reform community has written off its chances of winning this case on the merits, and so sees the “restraint” argument as their “hail Mary” play. But if the Court majority has decided to correct the errors of Austin and McConnell, we doubt that it is going to be fooled by this line of attack from those who, until recently, were urging the Court to overrule precedents.
