Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Thursday, December 11, 2003

THIS I LOVE. I was at the Supreme Court yesterday when they announced that
they'd ruled the Bipartisan Campaign Reform Act constitutional. It was very cool to be there for the announcement (and a total surprise: we thought we were just there to hear a Miranda case and a redistricting case). So that I love.

But I also love the decision that was handed down. Not because I'm a huge supporter of BiCRA, or anything. I'm generally ambivalent about this kind of legislation, though somewhat sympathetic to those who say its an unconstitutional abridgment of speech and very sympathetic to those who say that campaign finance regulations are ultimately not very effective at preventing the evils they're seeking to prevent.

What I love about the decision is the message it sends to members of Congress, especially Republicans, and the President. The Court is not going to do their public policy dirty work. When BiCRA was passed, many of its Republican supporters (including the President) seemed to basically be of the position that the bill had some problems, and that parts of it were probably unconstitutional, but that it was OK to pass it because the Supreme Court would hear a case involving the law and strike down all the unconstitutional parts. The situation, they thought, was win-win: they get the public relations victory of supporting the passage of a popular law, but would be insulated from many of the worst effects of that law because the Court would strike them down as unconstitutional.

Except the Court didn't. It refused to do Congress and the President's dirty work for them. This is the perfect example of precisely when to use so-called Thayerite review (heavy deference to the political branches). Part of Thayer's idea is that whenever courts start activistically striking down laws on constitutional grounds, it removes much of the incentive for the political branches and the public to debate issues of constitutional law, to ask about a proposed law not just "is this a good idea?" but "is this consistent with the constitution?". Whatever the proper role of each branch is in interpreting the constitution (and this is a subject of much debate) it seems to me that Congress and the President are at least obliged not to pass laws that they themselves believe to be unconstitutional.

Here, the Court may or may not be wrong on the substance of the Constitution, but their error, if there was one, is correctable by Congress simply amending the law to strike out provisions it believes are unconstitutional. And in the meantime, the Court's decision creates exactly the right incentives vis a vis the political branches and the constitution. So huzzah! for Sandra D.