>> Thursday, March 04, 2010
Shorter Jeffrey Rosen: I am beginning to have serious questions about the existence of Santa Claus.
While I can't resist making fun of Rosen's belated recognition of the obvious, he does go on to raise a serious issue. about the potential for interbranch conflict. Rosen argues that the Court may have overplayed its hand in Citizens United:
It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory...Roberts may feel just as confident that he knows the “right” answer in cases like Peek-a-Boo as he did in Citizens United. But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well intentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.
There are a couple elements present that could lead to conflict over campaign spending. First, whatever my other quibbles with Friedman and Litwick on this question, they were right about public opinion being unfavorable. And Obama's willingness to criticize the Court at the State of the Union is indeed potentially important. Does this mean that I think that Citizens United is going to cause a major political struggle over judicial power?
In a word, no, for one minor reason and one major one. On the minor reason, the direction of public opinion is only important if an issue is also salient, and I just don't think there's any evidence that a non-trivial number of people will vote on campaign finance. The important reason is the most important factor: do a majority of members of Congress really "care intensely" about campaign finance reform? Almost certainly not, I'd say, and indeed I'd go further and speculate that a substantial majority of Congress is perfectly happy with what the Court did. My friend George Lovell and I use the term "legislative default" to describe a case in which the Court gets the apparently final say on a question because a coalition of members of Congress either substantively supports the Court or doesn't really care how a question is resolve but see political benefits in letting someone else take responsibility. (More explanation here for people with institutional subscriptions or who want to email.) I think that this is the case with campaign finance. The Court has a lot of open congressional support here, at least enough for a minority veto of any attempt to curb the effects of Citizens United. But in addition to that, my guess is that they'll be joined by a lot of members of Congress who don't feel they can vote against campaign reform legislation but are happy to have the courts give them the excuse not to try again. (Cf. John McCain saying that the Court has spoken.)
I don't see any meaningful political action against the Court over campaign finance, not because there's nothing Congress can do but because a majority of Congress supports Citizens United for either substantive or political reasons.