Bench Memos

Campaign-Finance Reform & the Court, Before Tweeting

Campaign-finance lawyers, activists, fanatics, and the journalists who talk to them remain with knickers a-twist with yesterday’s non-appearance  of a ruling in Citizens United v. FEC (a/k/a the Hillary Movie case).  But then, the Court announced a special sitting for today — no  arguments are scheduled, so one can infer that the Court will release at least one opinion.  Surely the long-awaited CU opinion is a candidate, and there’s much speculation about whether the Court is divided, unhappy, fighting, or worse.

Funny, but about 34 years before, the Supreme Court was scrambling behind closed doors to get its reasoning together on another campaign-finance decision — Buckley v. Valeo.  The justices wanted to release  the opinion by the end of January to deal with the new campaign-finance laws quickly and give  guidance in the 1976 election cycle.

Were press and pundits obsessing about the time the case was taking, or what the Court might do to overturn long-standing precedents in campaign finance?  No.  There was NO obsessing in the bar or in papers  that I can find in the ProQuest  historic papers collection. There was NOTHING in the Washington Post,  which, given their triumph in Watergate, would be watching what was  going on, if anybody was.

Nobody stressed about the Buckley release, I suspect because nobody expected it to reconfigure Constitutional doctrine, bifurcating the scrutiny applied to expenditures as opposed to contributions.  Even if some Bar members saw potential there, it would have been impossible for them to foresee how the resulting fragments moved against one another, and the consequences.  Now, everybody knows the Court can  (and has, more than once) reconfigured the constitutional doctrine in this area, so even a relatively narrow factual case like that presented in CU has immense importance.  So we wait and watch.

 – Allison Hayward teaches election law at George Mason University.

Allison R. Hayward — Nina Owcharenko is a senior policy analyst for health care at the Heritage Foundation's Center for Health Policy Studies.