Citing Buckley

As I noted here, the U.S. Court of Appeals recently unsealed its opinion In re: Grand Jury Subpoenas, a Speech or Debate Clause case involving former Rep. Tom Feeney.  Whenever such an important court releases an opinion, isn’t the first thing you do is search the opinion for cites to Buckley and other campaign finance-related cases?  And searching this opinion, we’re not disappointed.  Judge Ginsburg’s opinion (joined with Judges Kavanaugh and Williams) cites Buckley once.

As a jurisprudential matter, the Executive Branch suggests that this kind of analysis may place too much emphasis on the actual words of the Speech or Debate Clause; it would prefer to balance the protections of the Clause against the interest in preventing and punishing corruption and false statements. But especially in separation of powers cases — from Marbury v. Madison to the present — the Supreme Court has repeatedly stressed that the precise words of the Constitution control and that courts must not relax the enduring structural protections contained in the document’s text. See Clinton v. New York, 524 U.S. 417, 446 (1998) (“Congress cannot alter the procedures set out in Article I, § 7, without amending the Constitution.”); INS v. Chadha, 462 U.S. 919, 945 (1983) (“policy arguments supporting even useful ‘political inventions’ are subject to the demands of the Constitution which defines powers and . . . sets out just how those powers are to be exercised”); Buckley v. Valeo, 424 U.S. 1, 134 (1976) (practical “fears, however rational, do not by themselves warrant a distortion of the Framers’ work”); Powell v. McCormack, 395 U.S. 486, 550 (1969) (“in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-77 (1803) (carefully analyzing precise text of Article III of the Constitution in concluding that § 13 of Judiciary Act of 1789 is unconstitutional and stating that “all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation”).

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