Bauer: Justice Scalia and Campaign Finance: A Puzzle

by - February 23, 2016

In voting as a member of the Roberts majority on campaign finance, Justice Scalia could be a reliable member of the “conservative bloc”, but also have his own reasons—just as Justices Kagan and Ginsburg may vote with Justice Breyer on campaign finance without sharing his theory of “Active Liberty.”  Scalia accepted a role for regulation in “protecting” and “enhancing” the electoral process, as he wrote in McIntrye –-mostly disclosure, but also to address the “plain” risk of corruption—and he would allow that some of the time legislators, as practicing politicians, would have views on this subject that the Court should respect.  It was what happened next that the Justice seemed often most concerned about–the journey he saw the reformist impulse take toward what he believed to be a “loss of all sense of proportion” and serious unintended consequences.
It is difficult to see in this position, or in the methodology, the profile of a Justice staunchly opposed to campaign finance regulation. Here are all the component parts of a reform program: concern for the “protection” and “enhancement” of the electoral process, respect for the judgment of elected officials in legislating toward that goal, a disinclination to confuse the constitutional issues these laws might raise with decisive constitutional barriers to their enactment in the first instance. How then to account for the rest of his campaign finance jurisprudence that seemingly cuts, and uncompromisingly, in the other direction?   The answer may hold a key to the turn in the Court’s campaign finance jurisprudence in the Roberts era and the reason why the five votes that the Chief Justice could count on included Justice Scalia.

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