With news breaking that Justice David Souter plans to retire from the Supreme Court when its term end in June, attention has quickly turned to who President Barack Obama might nominate to fill the seat.
Of course, with both sides of Pennsylvania Avenue now being controlled by the Democrats, the next person to get chambers at One First Street isn’t going someone “in the mold of Justices Scalia and Thomas.” But that doesn’t mean the next High Court appointee necessarily has to be hostile to the First Amendment rights of political speech and association. After all, many would say the American Civil Liberties Union (ACLU) is as far Left as liberal can get, and yet that organization has a long history of supporting broad First Amendment freedoms, even in the area of campaign finance.
Keeping that in mind, there are potential nominees President Obama could pick to fill the upcoming High Court vacancy who could add to what already appears to be a five justice majority that is skeptical of the constitutionality of campaign finance law
.
Indeed, one potential nominee has shown consistently that she has serious doubts about the constitutionality of campaign finance regimes that not only chill but also limit free speech in favor of government-controlled elections. To be fair, her name hasn’t been mentioned as often or as prominently of late, but among the actually possible nominees to the highest court in the land, former Stanford Law School Dean and current Law Professor Kathleen Sullivan would be about as good a nominee as can be expected from this administration when it comes to campaign finance.
Both through her scholarly work and litigation, Dean Sullivan has shown she is a friend of political speech and association. In one of her law review articles — entitled “Political Money and Freedom of Speech” published by the University of California-Davis Law Review — Dean Sullivan explained that, although “the view that political money should be limited has become mainstream orthodoxy[, a]gainst this formidable array of thoughtful opinion, I offer here a contrary view.” Dean Sullivan went on to state that the article “offers a critical guide to the reformers’ arguments by examining the political theories that more or less explicitly underlie them, … conclud[ing] that the much belittled constitutional case against campaign finance limits is surprisingly strong, and that the better way to resolve the anomalies created by Buckley v. Valeo may well be not to impose new expenditure limits on political campaigns, but rather to eliminate contribution limits.”
You go, girl.
Dean Sullivan has advanced her pro-free speech and anti-regulatory views consistently before the Supreme Court in the most important campaign finance cases of the recent past. Along with former U.S. Solicitor General Kenneth Starr and noted media counsel Floyd Abrams, she was one of the attorneys for Senator Mitch McConnell in his landmark constitutional challenge to the Bipartisan Campaign Reform Act (a.k.a. McCain-Feingold). And, more recently she has filed amicus briefs opposing the Federal Election Commission, and supporting campaign finance challengers, in the Wisconsin Right to Life and Davis cases.
In short, Dean Sullivan is about as good as it gets among the liberal legal elite on campaign finance, and for that reason she would make a terrific Supreme Court nominee, at least with respect to the issues the Center for Competitive Politics cares about.
As for those potential nominees who have more frequently or more prominently been mentioned, their legal records on campaign finance issues range from hopeful to virtually blank slate to disappointing.
The three names that have been, and continue to be, getting the most attention are U.S. Solicitor General Elena Kagan, Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit, and Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit.
None has really taken an obvious and strong position on campaign finance issues. But, based on the few previous writings immediately available, the following can be said…
General Kagan — formerly the Dean, and on leave from being a professor, at Harvard Law School — appears to be open-minded (and maybe even moderately pro-speech and anti-regulation). In one of her seminal law review articles entitled “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” General Kagan engages in an extended discussion about why the Supreme Court has cast a skeptical eye on “[l]aws ‘equalizing the speech market.” Using Buckley‘s holding that that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment” as an example, General Kagan goes on to explain:
“The ease with which improper purpose can taint a law directed at equalizing expression together with the difficulty a reviewing court will have in detecting this taint account for the Court’s approach in cases like Buckley. The reason for the approach is not that the goal of equalization itself conflicts with the First Amendment (though the Court often speaks in this manner); [t]he reason for the approach is instead that the goal of equalization often and well conceals what does conflict with the First Amendment: the passage of laws tainted with ideological, and especially with self- interested, motivations. … [I]n Justice Scalia’s words: ‘The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition.’ The harsh treatment of laws directed at correcting distortion, even when these laws are framed in content-neutral language, arises from the fear that if the usual standards of review applied, legislators would use these laws as a vehicle for improper motive, and courts would bless what the First Amendment proscribes.”
That is quite a mouthful, and I am not at all sure that I agree the goal of leveling the speech playing field does not, in and of itself, conflict with First Amendment principles. But the fact remains that General Kagan’s discussion shows that, hopefully, she may be open to persuasion, or even already somewhat persuaded, that the government should stay out of the game of regulating political speech as much as it can.
Of course, all of this comes with the caveat General Kagan wrote at the outset that her article “is primarily a descriptive theory; although I discuss its normative underpinnings, I make no claim that a sensible system of free speech should be concerned exclusively with governmental motivation.” In other words, we cannot read too far into the article that its discussion would represent General Kagan’s view of what the law should be as a judge, as opposed to what is appears to be as an academic observer.
Next, Judge Wood has essentially no campaign finance record at all, but is well-respected as an intellectual and careful jurist. The only serious campaign finance case she appears to have participated in was an earlier challenge brought by Wisconsin Right to Life based on the group’s fear that it would be subject to regulation as a political committee under the State of Wisconsin’s laws. However, the case was never decided on the merits because Judge Wood, joining an opinion by Judge Frank Easterbrook, decided the organization did not have standing to sue, and so there are no tea leaves to read concerning how Judge Wood would address the legality and constitutionality of campaign finance restrictions.
Finally, there is Judge Sotomayor, who, while also having a relatively sparse campaign finance judicial record, did cast a significant en banc vote against reconsidering a decision upholding both extremely low contribution, as well as expenditure, limits in Vermont — a decision that was overturned by the Supreme Court 6-3 in Randall v. Sorrell. In other words, Judge Sotomayor has signaled that she is willing to undo an absolute First Amendment rule, dating back to Buckley, that it is impermissible for the government to limit expenditures. And, she was willing to do it while upholding ridiculously low contribution limits, too.
Based on that vote alone, friends of the First Amendment have a lot to worry about if the nominee is Judge Sotomayor.
Other potential nominees like Michigan Governor Jennifer Granholm and Massachusetts Governor Deval Patrick are all but impossible to pin down since their claims to fame have come in the political sphere, meaning they have neither an academic nor a judicial record on which a prediction can be made concerning their jurisprudential views on issues like campaign finance.
In the end, we will just have to wait and see who President Obama nominates but, given her well-respected and clear-thinking First Amendment track record through scholarship and litigation, Dean Sullivan deserves a good hard look.
