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Electronic Roundtable '06

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Electronic Roundtable '06

Modest or Bold?: The Roberts Court's Choice in Election Cases

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February 21, 2006

There's no way to know how momentous the Supreme Court's decisions in the Vermont campaign finance and Texas redistricting cases will be. After all, many of us thought that the Court's earlier campaign finance case this term, Wisconsin Right to Life v. FEC, was going to be a pretty important case on the constitutional limits on corporate-funded speech during the election season. But the Court essentially punted, unanimously reversing the lower court and essentially remanding the case for further factfinding. So, too, with redistricting: the last time the Court got involved, in the 2004 Pennsylvania redistricting case, the Court divided 4-1-4, with Justice Kennedy, the swing voter in the case, essentially putting off for another day the question when a redistricting is so partisan as to be an unconstitutional gerrymander.

So the Court could potentially delay for later consideration big questions in the Vermont case about the constitutionality of spending limits (as the authors of the McCain-Feingold campaign finance law have urged) and possibly craft a narrow ruling in the Texas case applicable only to mid-decade redistricting. This might be an especially convenient thing for the Court to do, so as not to put the Roberts Court in a position to change doctrine too quickly and too radically.

But within the next decade, the Court is going to have to confront some major questions about its role in regulating politics. Since 2000, the Court's decisions in the campaign finance area have signaled an unprecedented deference toward states (and Congress) that pass laws limiting the role of money in politics. And a different constellation of justices in the earlier partisan gerrymandering case took the position that the Court should keep its hands off districting decisions made by self-interested legislators. The pressure is now on the Court to move away from deference in both areas.

Opponents of the Vermont spending limits want more than a reaffirmation of the holding in Buckley v. Valeo striking down such limits as a violation of the First Amendment. They ultimately want a deregulationist approach to campaign finance, where any amount of money can be spent by anyone (including corporations and unions) or contributed directly to candidates for political purposes. Some deregulationists even contend the First Amendment gives them a right to engage in this spending anonymously.

Some of those asking the Court to strike down the Texas redistricting plan want the Court to go further than simply holding that the Texas redistricting is unconstitutional because it was enacted solely to benefit Republicans at the expense of Democrats. Rather, they want courts to take politics completely out of the districting process by reading the Constitution to bar states from drawing districts that are not sufficiently competitive.

The choices facing the Court, and particularly facing the new Justices on the Court, are stark. Should the Court act as group of mighty Platonic guardians who increasingly regulate the details of political competition for every state and local government in the U.S.? Or should the Court act more modestly, deferring to value judgments of states yet carefully balancing state interests against the rights of citizens to organize effectively for political action?

We may see some hints of the Court's direction as these two cases are argued and decided. While I do not expect the Court to exit from the political thicket any time soon, the nature of the Court's intrusion is likely to change, especially with the replacement of perennial swing Justice O'Connor with Justice Alito.