The Dangers, and Promise, of Shrink Missouri
Rosenkranz, E. Joshua, Harvard Journal of Law & Public Policy
Whenever someone makes the kind of biographical introduction Judge Kozinski just offered, a member of the audience inevitably bounds up afterwards and asks, "So, you clerked for both Scalia and Brennan? Which one made the mistake?" I always find myself replying, self-consciously, "They both did." Mistake or not, the truth is that then-Judge Scalia pretty much knew what he was getting when he hired me. He made it a point of telling me that I was his token liberal. Why would he hire a liberal? To his credit, I'm sure it was largely because he wanted to be sure he always heard the arguments against the positions he was taking. On top of that, Justice Scalia has always enjoyed a good debate. Plus, I always suspected he got a kick out of watching my fellow clerks tear me to shreds.
The truth is it was a great deal of fun for me, too. When Justice Scalia said "black," I said "white." When he said "good," I said "bad." When he said "right," I said "left." But for most of my clerkship, I wondered whether my contrariness was adding any real value to the Chambers.
It was only toward the end of my clerkship that I discovered the answer was "yes." By then Judge Scalia had become Justice Scalia, but I continued working for him at the D.C. Circuit, helping him complete some of the cases that were still pending when he was elevated. Justice Scalia was eager to clean his plate once and for all, but there was one case that proved to be problematic. Although he had circulated the majority opinion a while earlier, one of his more liberal colleagues continued to agonize over whether to join it or dissent. Eventually Justice Scalia lost patience waiting. He returned to his old stomping grounds and paid the dallying judge a visit to apply his formidable powers of persuasion. After a bit of unsuccessful advocacy, Justice Scalia threw up his arms in exasperation and exclaimed, "For God's sake, even my rad-lib-Comm-symp law clerk thinks I am right, so I must be right!"
I kept thinking of this story throughout Eugene Volokh's eloquent presentation. I am familiar with Professor Volokh's large and impressive body of work, though I disagree with most of it. So when I was invited to debate Professor Volokh about the Constitution and campaign finance reform, I was prepared for the worst. I was expecting to have to rebut the kinds of arguments that I hear from so many other Federalist Society aficionados. Arguments like the ostrich-headed position that contributions, even very high ones, don't actually corrupt politicians. Or that every dollar spent putting money into the pocket of a politician is as protected as the spoken word itself. Or that, because of these two propositions, limits on contributions are unconstitutional. (By the way, that is what Nixon v. Shrink Missouri Government PAC(1) was about. It was not, as Professor Volokh's introductory comments seem to suggest, about limits on the amounts an individual can spend on campaign-related speech.)
In short, I came here loaded for bear. Imagine my pleasure when I realized that I actually agree with most of what Professor Volokh has said. He agrees with me that contributions can corrupt. He agrees that it is permissible to limit contributions. He does not even take issue--at least not explicitly--with my position that it should be permissible to limit the amounts that candidates spend on their campaigns.
So the next time I face an argument against any of these principles, all I have to do is say, "For God's sake, Eugene Volokh, the poster child of the Federalist Society, agrees with me, so I must be right!"
The major point of disagreement between Professor Volokh and myself revolves around identifying the most dangerous element of the opinions that came out of the Shrink Missouri case. For Professor Volokh, the prize goes to an aspect of Justice Breyer's majority opinion. I disagree. I do not find Justice Breyer's analysis particularly troubling--a point I will return to later--but, more importantly, there are far more dangerous elements in the case. …