Ron Collins has posted the transcript of Justice Stevens’s testimony. I’d like to focus on his analysis of Buckley v. Valeo being in error, and his proposal to amend the Constitution:
Fifth, the central error in the Court’s campaign finance jurisprudence is the holding in the 1976 case of Buckley v. Valeo [442 U.S. 1 (1976)] that denies Congress the power to impose limitations on campaign expenditures. My friend Justice Byron White was the only member of the Court to dissent from that holding. As an athlete and as a participant in Jack Kennedy’s campaign for the presidency, he was familiar with the importance of rules requiring a level playing field. I did not arrive at the Court in time to participate in the decision of the Buckley case, but I have always thought that Byron got it right. After the decision was announced, Judge Skelly Wright, who was one of the federal judiciary’s most ardent supporters of a broad interpretation of the First Amendment, characterized its ruling on campaign expenditures as “tragically misguided.”[J. Skelly Wright, “Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?,” 82 Col. L. Rev. 609, 609 (1982).]Because that erroneous holding has been consistently followed ever since 1976, we need an amendment to the Constitution to correct that fundamental error. I favor the adoption of this simple amendment:
Neither the First Amendment nor any provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
I think it wise to include the word “reasonable” to insure that legislatures do not prescribe limits that are so low that incumbents have an unfair advantage or that interfere with the freedom of the press. I have confidence that my former colleagues would not use that word to justify a continuation of the practice of treating any limitation as unreasonable.
I frankly don’t know what to make of the last sentence, emphasis added. He is assuring the Senate, and the American people, that if his Amendment is adopted, that his colleagues–the other Justices–will interpret it in a certain way consistent with his preferences. Most simply, the word “reasonable” is one of the most hotly contested terms of art we have in the law. Think of the “unreasonable” clause in the Fourth Amendment. How straightforward is that?
On another level, how brazen is he to prejudge how his colleagues will judge anything. Recall, he was in the dissent in Citizens United. More importantly, I suspect his colleagues–especially those inclined to disagree–don’t give a damn what he has to say. He has been criticizing them with impunity for the past three years.
But, on a deeper level, a sitting Justice is offering a construction of how his Amendment will be interpreted by the Justices. This is an advisory opinion. Granted, there is a 0% chance this amendment will go anywhere, and there is a 0% chance Stevens would ever hear a case involving it because he doesn’t ride circuit. Which makes it all the more feasible for him to simply step down.
Justice Stevens should retire, for real. If he wants to make comments like this, do so as a private citizen. He will keep his guaranteed salary for life, even if he hears no cases.
There’s no reason to even flirt with the line between proper and improper judicial ethics like this.