Bench Memos

Campaign Finance and Precedent

There seems to be a flurry of commentary on the Left arguing that Chief Justice Roberts would be betraying his supposed confirmation testimony on precedent if he were to vote to overrule the Court’s holdings on corporate speech in Austin v. Michigan State Chamber of Commerce and McConnell v. FEC.  (One example is E.J. Dionne’s recent column, which Hans von Spakovsky has already addressed.)  Ditto for Justice Alito.  Such commentary strikes me as a not-so-subtle effort to intimidate Roberts and Alito:  Rule the wrong way, the implicit threat goes, and we’ll accuse you of perjury.


But as this Daily Journal article puts it, “a close reading of the confirmation hearing transcripts shows that Roberts and Alito … left themselves plenty of wiggle room when it comes to re-appraising old cases they disagree with.”  (I made much the same point about Roberts’s testimony on Roe in this essay.)  The article quotes law professor, and election-law expert, Rick Hasen—who opposes the overruling of the Austin and McConnell holdings—as acknowledging that “there are no statements that either made [in their confirmation testimony] that boxes them in.”  (Oddly, the article at one point purports to paraphrase Roberts as having said that overruling precedent “should be avoided unless absolutely necessary.”  So far as I’m aware, that’s not an accurate paraphrase.)


If the holdings in Austin and McConnell were wrong, is there really any serious argument that they shouldn’t be overruled?  (I haven’t studied, and therefore am not taking a position here on, whether the holdings in Austin and McConnell were wrong; I’m limiting myself to the question of overruling them if they are wrong.)  Surely, a “plus” factor that would seem to weigh overwhelmingly in favor of overruling is that those precedents (again, on the arguendo assumption that they’re wrong) would, if left in place, operate to permit the ban in perpetuity of a category of political speech at the core of the First Amendment.