Justice Stevens’ dissent is a woefully unsatisfactory performance, and it is, in places, bizarre.  If this is the best possible defense of this provision, then the dissent as much as the majority opinion explains why the Millionaire’s Amendment was doomed.  And this dissent, like Souter’s in Wisconsin Right to Life or Breyer’s Active Liberty suggests that the Court’s progressive minority continues to flounder in applying or recasting constitutional doctrine in this field.

     First, Justice Stevens, writing at the highest level of generalization, seems to have lacked the energy to argue his case.  He writes that he agrees "completely" with the District Court.  Davis, Stevens, J. dissenting, at 1.   Why this is so is omitted from his opinion:  he does not bother to say more.  Quickly he turns to his own reform weltanschauung, which may be neatly summed up as his rejection of the course of Buckley reform jurisprudence.  The direction he charts is strangely originalist:  Buckley, he concludes, represents "a probable departure from the views of the Framers."  Id. at 3.   

     Second, Stevens falls back on oversimplification.  The Millionaire's Amendment is "plainly constitutional," id. at 2:  there is nothing here in the way of a constitutional brain-teaser, he tells us, that should detain us too long.  Everywhere he looks he sees what is "plain":  he states that "the notion that rules limiting the quantity of speech are just as offensive to the First Amendment as rules limiting the content of speech is plainly incorrect."  Id. at 4.  On the question of whether Millionaire’s suffer any injury from the application of a discriminatory scheme of limits, the answer he offers is no, none, not at all, and no way.  No First Amendment injury "whatsoever" (id. at 1); the self-funded candidate is "in no way undermined" (id. at 6); this candidate’s "engagement in the political process [not] in any sense impeded."  Id. at 6, n.6. 

     Third, he takes barely a pass at explaining why the citizenry should not fret about government restrictions on the "quantity" of speech.  It is a disastrous outing.  Less is more, he decides:  less quantity can produce better quality, in the form of superior "exposition of ideas."  This is, for Stevens, partly a gain in presentation:  arguments limited in length, by command of the government, will be less "repetitious" (id. at 3).  Further benefits will come with the reduction in bad argument—in "slogans" and "sound-bites."  Id. at 4.  He envisions a government as cultivating a higher form of political speech purged of its excesses and vulgarities.  And he supports this astonishing packet of assertions with an analogy to the Court’s limits on oral argument.

     Settings have become seriously confused here.  At the Court, spectators assembling prior to argument are admonished to keep their voices down; counsel and the audience rises in solemn silence as Justices file into the room; counsel are regularly cut off in mid-presentation and mid-answer (and should have their middle coat buttons fastened); and limits are indeed placed on arguments and page-lengths.  It is hard to imagine that the imposition of this order is a plausible, healthy objective for the wider world of political argument, and the suggestion that the Government would prescribe rules on this pattern, adapting the rules and practice of oral argument at the Supreme Court, is positively terrifying.

     Fourth, the Justice’s logic does not test well.  He takes a wide turn in arguing that "if, as I have come to believe" (id. at 4), Buckley v. Valeo was mistakenly decided and expenditures can be directly limited, it "follows a fortiori that the eminently reasonable scheme before us today survives constitutional scrutiny."  Id.  His "what if" answers itself.  Since Buckley remains good law, then to other Justices—the ones in the majority—it follows that the Millionaire’s Amendment cannot stand.  And Stevens has gotten into the odd position of arguing a "what if" position when, at the same time, he would have the reader accept that the Millionaire’s Amendment is "plainly" constitutional.  How "plain" can his constitutional position be, if it depends on wishing away the foundational case that even two members of the dissent, along with the majority, believe to be the controlling authority?

     Finally, Stevens would defend Congress’ power to limit the power of wealthy—in this instance, wealthy individuals—by reference to its cases on corporate and union spending.  The difference, of course, is that these cases deal with corporations and unions, and Stevens tries to bridge the distinctions by appeal to an underlying "logic," described as "concerns about the corrosive and distorting effects of wealth on our political process."  Id. at 8. 

     The "concerns" of these cases are not the same as their "logic" and they do not help with the application of that logic to forms of wealth other than those of corporations and unions.  The very point made in those cases is that there are constitutional differences in sources of wealth and their uses for political purposes.  Commitment to logical argument would ask of Stevens that he show how these differences should no longer matter in defining Congressional power to regulate campaign finance.  Instead he isolates a "concern"—the concern with "wealth"—and assumes that its self-evident power, its moral power, renders further logical, constitutional argument unnecessary.

     In all fairness, it must also be said that Justice Alito’s opinion for the Court is no masterpiece.  Its analysis never achieves much depth nor even interest.  And yet it possesses the virtue of deciding the case narrowly:  it does not bear within it, as Rick Hasen seems to think, the seeds of destruction of the balance of campaign finance regulation.  Some will make much of the rejection of the "equality" rationale, but the Court had already rejected it, and this was not likely the case, nor the time, in which it would be reconsidered and brought back from the dead.

     The Alito opinion delivers what is minimally necessary, and no more, to support the majority’s conclusion.  Justice Stevens had at least this same burden in making case for the dissenters.  He did not meet it.  This could taken to be a deficiency in execution or in conception.  It seems that it is more a problem of conception, that the doctrinal well has dried up and that the next generation of progressive reform will require fresh sources.

Bob Bauer