No, Buckley v. Valeo is in Real Trouble

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.

5 comments on this post.
  1. Incontinentia Buttocks:

    So, can all eventually look forward to the Hatch Act being tossed? And why not throw out the Pendleton Act and have a full-on return to the spoils system? What’s good for the first Gilded Age is good for the second!

  2. Russell Arben Fox:

    How I dearly, dearly wish I could believe the title of this post was unironically true. Buckley v. Valeo is the bad seed that has given us Citizens United and so much more. There are few Supreme Court decisions I loathe as much as that one.

  3. rea:

    Except that an opinion from this Court overruling Buckley v Vallejo would be a move in the opposite direction from which you want to go.

  4. Jon:

    I agree that Weigel misreads Brown. And while I’m, if you had to give me a name, a Neo-Realist, and I believe the Court is a political body, I don’t see how you make an intellectually solid distinction between expenditures and contributions, at least in terms of capping the amount. I suspect they will warn that some transparency is required and this doesn’t invalidate anti-corruption laws, but something like blah blah blah, corruption is corruption and until the state proves that’s what it is, it’s merely “speech.”

    Also, I think this is what the majority *wants* to do.

    Liberals will be pissed, Scalia will give us the finger, and then 90% of them will go back to fellating this unaccountable sewer of intellectual poison after they do something with gay marriage.

  5. Happy Hour Roundup:

    [...] 7. Buckley v. Valeo may be in big trouble at the Supreme Court: That’s what Scott Lemieux concludes. [...]

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