A number of leading reform proponents have pronounced the Supreme Court’s decision in Randall v. Sorrell, invalidating Vermont’s contribution and expenditure limits, to be a victory of sorts:  a triumph of stare decisis.  This is a public stance.  Perhaps, privately, some reformers feel this:  maybe—and who, ever, would have thought it—some have long harbored a secret crush on Buckley v. Valeo.  "When you think about it," they might be musing, "money is speech."  One imagines the conditions for this epiphany, such as another round of approvals of grant money on which their own speech happily depends.  Or it could be that they may have lived for so long with the constitutional distinction between "contributions" and "expenditures" that that they are apprehensive about a world without it.  This is all good news for the Federal Election Commission:  reformers may claim to hold the agency in contempt, but all of us know from elementary school days that this may be quite the opposite, an inverted expression of affection.

      A more realistic possibility is that this is a tactic, conceived as useful in some way.  We have seen this before, when the reform community insisted that the three-judge court decision in McConnell, quite different from the Supreme Court’s later wholehearted embrace of the law, was, on balance, good news.  Senator Feingold expressed his gratitude that the "premise" of the law had been accepted.    Democracy 21 was also "pleased" with the decision, even if it also opened some new "loopholes" of concern.  The press was advised to relax: everything was under control.

      Today, in the wake of the Vermont decision, the reform message is similarly reassuring: the Court has "declined to overturn 30 years of precedents upholding limits on campaign contributions."  "Campaign Finance Reform Survives," New York Times (June 27, 2006).  Yes, but the Court, of course, relied on precedent to strike down limits on campaign contributions.  Democracy 21 agrees, however, with the Times:  what was important about the Court was the preservation of "the longstanding constitutional framework established in Buckley v. Valeo." Money, mercifully, is still speech, exactly as Buckley counseled:  even if hard-core zealots like the curmudgeonly Justice Stevens say otherwise.  And Gerry Hebert, writing for the Campaign Legal Center blog, warmly praises Chief Justice Roberts for showing due respect for this precedent.

      If it assumed that this is a public relations ploy (or gambit, or tactic, or play—whatever), what end is it meant to serve?  One objective may well be—probably is—to convince the press, quickly, that the reform enterprise is not in jeopardy.  Good press, editorial and other press, has contributed immeasurably to the success of the reform program, seeding favorably the soil in which cases are brought and decided.  Judges, we all know, read the papers.  So do legislators, and this matters, too, as Congress continues to tussle over the fate of "527s."  It is in the interest of reformers, as some of them understand it, to forestall any impression, quickly growing to a conviction, that a sort of counter-reformation has begun in the Roberts Court.  Randall v. Sorrell must be a victory of sorts, and perhaps just as important, Roberts’ vote must be read as an indication that he will protect, not lead an attack on, state prerogatives in limiting campaign and campaign-related activity.  This has required a tactical retreat to Buckley, portrayed as a strong stand for reform. 

      This maneuver should be savored while it lasts.  For it is now—and perhaps not for long—that the Campaign Legal Center, in the voice of Gerry Hebert, warns of the dangers of "an ideological mission to advance a particular agenda in the field of campaign finance law," putting itself on record as opposed to anything of the sort.  

Bob Bauer