Bench Memos

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Davis v. FEC: Stevens’s Dissent


Justice Stevens’s dissent in today’s campaign-finance case (Davis v. FEC) is in two parts, Part I for himself alone, and Part II joined by Justices Souter, Ginsburg and Breyer.


In his Part I, Stevens rejects the Court’s ruling in Buckley v. Valeo (1976) that, as he puts it, “regulation of the quantity of money spent on campaigns for office ought to be viewed as a direct regulation of speech itself.”  In his view, lots of purposes may justify limits on expenditures.  Showing, once again, that there is no argument too foolish for him to embrace, Stevens offers a strange analogy to the division of oral-argument time at the Court:  “Quantity limitations are commonplace in any number of other contexts in which high-value speech occurs” and “would likely have the salutary effect of improving the quality of the exposition of ideas.”  In a non sequitur masquerading as an “a fortiori” argument, Stevens contends that his premise (contrary to Buckley) that Congress could impose reasonable limits on all candidates’ expenditures somehow compels the conclusion that the asymmetric scheme (treating one candidate differently from his competitor) resulting from the Millionaire’s Amendment is permissible.


In his Part II, Stevens, working within the Buckley framework argues, first, that the Millionaire’s Amendment causes no First Amendment injury: 


“The Millionaire’s Amendment quiets no speech at all.  On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard….  Enhancing the speech of the millionaire’s opponent, far from contravening the First Amendment, actually advances its core principles.  If only one candidate can make himself heard, the voter’s ability to make an informed choice is impaired.”


Stevens argues, second, that even if the self-funder’s First Amendment rights are burdened, that burden is justified by the purposes of “reducing both the influence of wealth on the outcome of elections, and the appearance that wealth alone dictates those results.” 


Stevens regards the Millionaire’s Amendment as a “good-faith attempt by Congress to regulate … one particularly pernicious feature of many contemporary political campaigns.”  (Emphasis added.)  Gee, might the real purpose have been to protect incumbents from wealthy challengers?


On first read, Stevens’s dissent strikes me as a serious candidate for the weakest dissent of the year.  In saying this, I don’t mean to dismiss the possibility that there might be strong bases for dissenting from Justice Alito’s majority opinion.  But I don’t see how Stevens provides them.

Tags: Whelan


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