Memorandum for Chief Justice Roberts and Justice Alito
Mr. Chief Justice Roberts and Mr. Justice Alito, I hope you will forgive the rather irregular method I am employing to file my amici curiae in the above-referenced case. My guess is that you and your clerks are pretty overwhelmed with friends of the court filing briefs on every conceivable angle in this matter, so I thought, “Why not use the web to get a word in edgewise?” Someone on the court in some capacity must read the blogs, and this way seems about as likely as the formal procedures to bring a point of view before you.
I taught my ConLaw students the campaign finance cases this week, and, as is always the case, the dazed looks on their faces were even more puzzled than usual. I am of course aware that the blame for this could rest completely at my feet, but I think we all know that beginning with Buckley v. Valeo, your predecessors haven’t exactly been kind to the idea of “Congress shall make no law…abridging the freedom of speech.” Oh, I explained the decision of course, and the distinction between an incumbent-imposed limit on contribution and one on expenditure, but the wreckage of reason and principle that have been left in the wake of Buckley and its progeny, well, let’s just say my students and all law students (and increasingly the public) know that these decisions have Plessy, Lochner, and Korematsu written all over them The politically ambitious among the students are sighing over the prospect of campaigns conducted under the watchful eyes of the FEC legions, and weary already at the prospect of tens of thousands of fund-raising calls mounted over the course of an even moderately successful political career. Those that are simply civic-minded are asking "When did the protection of entrenched power become a 1776/1789 value?"
I wonder: How many fundraising calls do you think now retired Senator Jim Talent had to make in his three races in six years in Missouri? Or Senator John Thune in his two races in four years? Or any elected official with a big state race and a big budget to meet if they are to be competitive? Or even the small district guy or gal who gets up a head of steam to run only to find the rich dilettante declared and fully-funded and standing –empty-headed—across the path to office? Doesn't every incumbent get a built-in advantage? Did the Framers intend the equivalent of the Members of Parliament to have a home field advantage equal to millions of dollars?