The Supreme Court released its opinion in Caperton v. Massey today and there is already a lot of analysis. What does the opinion mean for the future of campaign finance jurisprudence? Rick Hasen writes:
One of the most interesting subtexts of the decisions in this case is the role of campaign finance. Justice Kennedy, of course, has been one of the Justices most opposed to the constitutionality of much campaign finance regulation on First Amendment grounds. Here, however, Justice Kennedy acknowledges the important role that campaign spending plays in potentially influencing outcomes: if such outcomes can influence judges—creating the possibility of subconscious bias on the part of judges who benefit from independent expenditure campaigns—isn’t the same true of candidates for other office, and doesn’t that present a reason why even independent expenditures can be regulated? I would expect some of Justice Kennedy’s words to be thrown back at him in a future case involving campaign finance laws outside the judicial elections context.
The opinion hardly gives proponents of the First Amendment a warm and fuzzy feeling about the certainty of Justice Kennedy’s potential position in Citizens United. The Center for Competitive Politics calls it downright ominous. But given Justice Kennedy’s strong views on campaign finance law and the opinion’s limiting language, is the concern warranted?