Justice Stephen Breyer is retiring as a Supreme Court Justice. In an article published in Electionlawblog, Election law expert, Rick Hasen, revisits the Supreme Court Justice’s legacy in election law. Here is an excerpt:
With Justice Stephen Breyer’s upcoming retirement from the Supreme Court, it seems appropriate to offer some words about his legacy in the area of election law. Here is an initial post, and I suspect other ELB contributors will weigh in. I want to focus today on what I consider to be Justice Breyer’s most significant opinion.
Justice Breyer’s most significant election law opinion is his concurring opinion in the 2000 case, Nixon v. Shrink Missouri Government PAC. The case concerned the question whether Missouri’s campaign finance limits for some state offices were so low as to violate the First Amendment’s rights of free speech and association. The Court, in an opinion by Justice Souter, upheld the limits (under a test that was effectively overruled a few years later in a plurality opinion by Justice Breyer in Randall v. Sorrell).
What made Justice Breyer’s opinion in Shrink Missouri so significant was his discussion of how to conceive of First Amendment challenges when it comes to laws limiting the role of money in politics. On the one hand, Justice Breyer saw the problem of great disparities in economic power translating into great political power to be threatening to American democracy and interfering with free and fair elections. On the other hand, Justice Breyer saw that overregulation in this area could stifle competition and robust political debate. He wrote that “this is a case where constitutionally protected interests lie on both sides of the legal equation.”
Read the full story here.