Dahlia and Walter,
Of today's opinions, I am guessing most of the attention will be focused on the video games opinion and the fact that despite Justice Clarence Thomas' view in dissent, James Madison was apparently untroubled by teenagers gunning down zombies. A particularly violent version of Call of Duty set in the Revolutionary War context now seems inevitable. I will have more to say later on that and the lineup of justices—Stephen Breyer and Thomas flanking Samuel Alito. But for now I wanted to share a few thoughts about today's other First Amendment ruling, the court's latest word on campaign finance.
To no one's great surprise, the court invalidated Arizona's public financing system by a 5-4 vote, with Chief Justice John Roberts writing for the majority. Some oral arguments are difficult to call, with the justices holding their cards close to the vest. In others, like this one, the outcome seems pretty clear based on past votes and statements at oral argument. The recent precedent that loomed largest here was a case I argued as solicitor general, Davis v. FEC, involving the so-called "millionaire's amendment." If ever there were a campaign finance law that even the court's campaign-finance skeptics should have loved, it was the millionaire's amendment. It actually raised the contribution limits for candidates facing a self-financed opponent spending lavishly on his or her own campaign. You would think a court skeptical of campaign-finance restrictions would applaud the lifting of the limits. Not so. Instead, the court focused on the perspective of the self-financed candidate and viewed the relaxation of the opponent's contribution limits as a penalty on the self-financed candidate's spending above the triggering amount. Because the majority views such spending as speech, the law was viewed as a penalty on speech and struck down.
As long as the court viewed Arizona's public-financing scheme from the same perspective—that of the nonparticipating candidate—the defenders of Arizona's law never had much of a chance. If raising an opponent's contribution limits was too much of a penalty, surely giving the opponent additional public financing would be even worse. A candidate given a choice between giving an opponent the possibility of raising additional funds through increased contribution limits or the guarantee of additional funds without any additional fundraising efforts would obviously prefer the former. The challenge in defending the law was to get the court to shift its perspective and consider the ex-ante perspective of candidates deciding initially whether to participate in a public financing system (since there is no obvious analog in the millionaire's context).
The majority was not inclined to change its perspective. The same five justices who struck down the millionaire's amendment, not to mention forming the majority in Citizens United, stuck together and invalidated Arizona's public financing scheme.
Today's decision reaffirms the now-undeniable reality that there are five very solid votes to examine any campaign finance law—with the possible exception of disclosure laws—with great skepticism. There are many areas of the law where Justice Anthony Kennedy is viewed as a swing justice. This is not one of them. As the video-game decision also confirms, when Kennedy views a case as a pure First Amendment case, he is as strong a proponent of the First Amendment as you will find. And he clearly views the campaign finance cases as pure First Amendment cases about the government regulating core political speech.
Because the majority opinion did not come as a great surprise, the real story may be the dissent, written by Justice Elena Kagan. While the newest justice argued ably in defense of campaign finance laws in Citizens United, this was her first chance to cast a vote in a campaign-finance case, and she not only cast a vote but wrote the dissent. And this is not a mere technical dissent taking issue with the majority's reasoning at the margins. The dissent covers 32 pages, traces the origins of public financing to Theodore Roosevelt, and reflects a very different understanding of the First Amendment's role in campaign finance relative to the majority. Where the court sees a grave First Amendment problem, the dissent sees a suit that "may merit less attention than any challenge to a speech subsidy ever seen in this Court." The majority views a nonparticipating candidate's complaint that his or her additional spending triggers new public money for opponents as meritorious, for example. The dissent labels this complaint "chutzpah."
It seems then, that 5-4 divisions over campaign finance laws are here to stay. The two newest justices—Kagan and Sonia Sotomayor—are passionate defenders of such laws. The majority, on the other hand, seems undeterred by criticism directed at Citizens United. The court's majority opinion closes by noting that the wisdom of campaign-finance reforms is not its business, but determining whether those laws comply with the First Amendment "is very much our business." Roberts brushed aside the dissent's concern about the will of the Arizona voters by embracing the First Amendment as a great counter-majoritarian guarantee. In enforcing such a provision, he seems to expect criticism from the majority.
In sum, the majority seems undeterred, maybe even energized, by criticism of its First Amendment holdings in the campaign-finance realm. The dissenters seem equally resolute. Whatever shifting alliances we may see on video games or restrictions on data mining, the 5-4 split on campaign finance seems here to stay. Do either of you have a different take, or are you out celebrating your constitutional right to sell violent video games to minors?