« Aside: Sen. Paul Simon dies | Main | Here we go! »

Unconstitutional On Grounds of Incomprehensibility?

Tomorrow is my first Torts exam, and I can't sleep. I keep waking up. So I thought, "What the hell, the Supremes just released their newest bestseller, McConnell v. Federal Election Commission. That must be good for a snoozeathon."

It almost made me cry. After this semester, I have Constitutional Law, and this Supreme Court is not helping. Others have commented on the fact that the Supremes have adopted the J. K. Rowling school of plot development (the summary is 19 pages long). Few have mentioned the sheer Lovecraftian complexity of the decision itself--merely glancing over it may drive sane readers, particularly non-lawyers mad.

STEVENS and O'CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'CONNOR,SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA 305, and in which THOMAS, J., joined with respect to BCRA 304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in
part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA 311 and 318, concurring in the result with respect to BCRA 318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and 311, in which opinion SCALIA, J., joined as to Parts I, IIA, and IIB. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in
part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA 323(e) and BCRA 202, and in which THOMAS, J., joined with respect to BCRA 213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA 305, in which GINSBURG and BREYER, JJ., joined.

Can we just sum up what got us this far, in 2AM generalization terms?
(1) The Supreme Court, in decisions before and after Buckley, managed to studiously avoid making bright-line decisions regarding where one could, and couldn't, violate freedom of speech. This led to further laws with sometimes smaller, but often more numerous, loopholes.
(2) Congress passed a campaign finance law that various members of the Senate knew full well had unconstitutional provisions. The bill became larded with provisions good for naked partisan advantage on both sides, and especially useful for the one political party (incumbents) that does particularly well out of revised laws. The bill itself bloomed into a monstrosity.
(3) It went back through the court system, metastasizing into a beast that only a by-the-hour litigator, a con-law professor, or a paper manufacturer could love. (I seem to recall that the District Court decision leading to this was longer than the Lord of the Rings, but might actually have had too little content for a Hollywood script.) Finally, it landed on the Supremes, who rather than shipping the whole thing back to Capitol Hill in a box with a message saying, "Call us when you stop speaking Delphic," decided to blur further whatever lines they'd drawn before this. They managed this so well that it seems O'Connor and Rehnquist may have switched sides. It's an open bet if this was intentional, or if they just got confused.
(4) Having managed to stretch the relatively terse 1st Amendment ("Congress shall make no law") into Harry Potter and the Legislation of Sisyphus, we may now look forward to several hundred lawyers on every campaign in the country searching for ways to narrow or expand fundraising and advertising methodologies to get around the new set of rules. These methods will be tested in the courts, in law reviews, and most importantly, on us every time we turn on the TV.

Oh joy.

UPDATE: Good Scalia dissent, though. If you don't feel like paging through the huge PDF, check out Crescat's excerpt:

The federal election campaign laws, which are already (as today's opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come-- and always, always, with the objective of reducing the excessive amount of speech.


TrackBack URL for this entry:

Post a comment

NOTICE TO SPAMMERS, COMMENT ROBOTS, TRACKBACK SPAMMERS AND OTHER NON-HUMAN VISITORS: No comment or trackback left via a robot is ever welcome at Three Years of Hell. Your interference imposes significant costs upon me and my legitimate users. The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey (hereinafter, the "Host") for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover Host's costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Giving The Devil His Due

Choose Stylesheet

What I'm Reading

D.C. Noir

My city. But darker.
A Clockwork Orange

About time I read this...


Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

De Novo
Theory and Practice
Liberal Federalism?
Good News, No Foolin'

Nancy Pelosi covers her head and visits the head of John the Baptist.
Vlogging in from Austin.
Omikase/"American Idol"

Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
Google Books

Stay of Execution
What I've Learned From This Blog, or My Yellow Underpants
The End
Mid Thirties

Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
Book Announement: Political Foundations of Judicial Supremacy by Whittington
Entry Level Hiring Report

The Volokh Conspiracy
Making the Daily Show:
Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:

Crescat Sententia
Hillary II
Politics and Principal/Agents

Law Dork
Election Approaches
Following Lewis
New Jersey High Court: 'Same Rights and Benefits'

Surveying the revival
Birds of paradise

Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...

For lovers of garden gnomes...and any China-freaks out there
We Interrupt Your Regularly Scheduled Programming

Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
What did the market learn from internal controls reporting?

The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?

Letters of Marque
And there we are

Signing Off

Dark Bilious Vapors
Jim (The Waco Kid): Where you headed, cowboy?
Bart: Nowhere special.
Jim: Nowhere special. I always wanted to go there.
Bart: Come on.
--"Blazing Saddles"

Technical Difficulties... please stand by....
The Onion should have gotten a patent first....

Legal Ethics Forum
Interesting new Expert DQ case
Decency, Due Care, and The Yoo-Delahunty Memorandum
Thinking About the Fired U.S. Attorneys

Ex Post
Student Symposium- Chicago!
More Hmong - Now at Law School
Good Samaritan Laws: Good For America?

Appellate Law & Practice
Those turned over documents
CA1: courts can’t help people acquitted of crimes purge the taint of acquitted conduct
CA1: restrictions on chain liquor stores in Rhode Island are STILL okay

the imbroglio
High schoolers turn in plagiarism screeners for copyright infringement
Paris to offer 20,600 bikes at 1,450 stations to rent by the end of the year

The Republic of T.
The Secret of the Snack Attack
links for 2007-04-04
Where You Link is What You Get

Distractions for stressed law students

The Other Side: Twisted AnimationsSomething Positive, a truly good webcomic

Syndicate This Site



Stop Spam Harvesters, Join Project Honey Pot