Dave Weigel speculates that the threat posed to statutory limits on campaign contributions by the Supreme Court’s decision to hear a constitutional challenge to aggregate contribution limits is overblown, given that one of the wingnuttiest members of the federal judiciary wrote an opinion upholding them:
So, could the court rule for the plaintiff and destroy campaign finance limits? Anything’s possible, but the recent experience hasn’t been good for the let-money-flow crowd. When we last saw McCutcheon, it was being dismissed by the D.C. Circuit. The opinion that smacked down McCutcheon and ruled for the FEC was written by Janice Rogers Brown, a libertarian-minded judge who was only confirmed after the brinkmanship of the 2005 “nuclear option” fight. Even she decided (PDF) that “that the aggregate limits are justified,” and that the argument that “the limits are unconstitutionally low and unconstitutionally overbroad” was flimsy. Brown’s only sop to libertarians was that “contributing a large amount of money does not ipso facto implicate the government’s anticorruption interest.” But she wasn’t willing to bring the courts in and have them set the limits. That was Congress’ job.
In a rare disagreement with Weigel, I don’t think this is right. As a Circuit Court judge, Brown is bound by clear Supreme Court precedent, and in this case it’s pretty clear. (Sam Alito, after all, voted to strike down a ban on D&X abortions as a circuit court judge, but provided the 5th vote for upholding virtually identical legislation once ascending to the Supreme Court.) Also, the language Brown used (“we decline plaintiffs’ invitation to anticipate the Supreme Court’s agenda”) is a pretty clear signal that Brown disagrees with the precedent she’s applying. The Court could reject the challenge in this case — although I’d bet on a minimalist opinion that strikes down the aggregate limits while leaving the rest of the limits that are constitutional under Buckley open — but I don’t think Brown’s vote really tells us much about what Roberts will do.