Antonin Scalia on Government Reform

Supreme Court Justice (nominated by Pres. Reagan 1986)

Key to 2000 Bush v. Gore: don't count new discoveries

Gore's counsel in Bush v. Gore, David Boies, had admitted the Florida legislature could not do what the Florida Supreme Court had done. Didn't that means the Florida court created new law? Justice Sandra Day O'Connor, for her part, sounded reproachful. She said, "I did not find really a response by the Florida Supreme Court to this court's remand" of Dec. 4. In other words, the Florida Supreme Court had simply ignored her bench's not-so-subtle directive to provide a cogent rationale for its Nov. 21 decision. The Florida Supreme Court had deliberately told the US Supreme Court to take a hike. Boies had no good answer. Scalia came in behind O'Connor, castigating the Florida court for counting 383 newly discovered Palm Beach County and Broward County ballots after being told not to do so by the US Supreme Court.
Source: Courage and Consequence, by Karl Rove, p.214 , Nov 2, 2010

Candidates' political speech is at core of First Amendment

In 2000, in Nixon v. Shrink Missouri PAC, [Zev Fredman, a marginal candidate for statewide office, assailed Missouri's contribution limits]. For their parts, Justices Thomas & Scalia would restore the law to its libertarian, pre-Buckley condition. [In 1976 in Buckley v. Valeo the Court rules that contributions could be limited, but expenditures could not.] Political speech, they said, is at the core of 1st Amendment concern. The Buckley incursion into the most important arena of free speech had created a "most curious anomaly." Turning to Fredman's candidacy, the dissenters noted his compelling need for large donations. Fredman lacked the advantages of incumbency, name recognition, or personal wealth. He had "managed to attract the support of a relatively small number of dedicated supporters," but their potential support would be a crime under Missouri law. The upshot: The state prevented Fredman's message from reaching the voters. This was emphatically wrong under the First Amendment.
Source: First Among Equals, by Kenneth Starr, p. 87 , Oct 10, 2002

For states’ rights; limit court role

The nine court members can be divided into three general alliances, but all of the justices have crossed ideological lines. The three conservative justices, including Scalia, and two of the swing justices usually support states’ rights.

Scalia interprets the Constitution literally and is a strong states’ rights advocate. Favors limited role for courts in the three-branch system of government.

Source: Reuters article in Boston Globe, p. A45 , Dec 1, 2000

Corporate political spending is free speech.

Justice Scalia wrote the concurrence on Citizens United v. Federal Election Commission on Jan 21, 2010:

Prior to the 2008 primary elections, Citizens United, a nonprofit corporation dedicated to educating the American public about their rights and the government, produced a politically conservative 90-minute documentary entitled Hillary: The Movie. This documentary covers Hillary Clinton's record while in the Senate & the White House. However, The Movie falls within the definition of "electioneering communications" under the Bipartisan Campaign Reform Act of 2002 ("BCRA")--a federal enactment designed to prevent "big money" from unfairly influencing federal elections--which, among other things, prohibits corporate financing of electioneering communications. The FEC [enforced the provision] of BCRA prohibiting corporations from broadcasting electioneering communications within 60 days of a general election. [The Supreme Court rules that this] violates the free speech clause of the First Amendment.

Justice Kennedy , Opinion of the Court (Roberts, Scalia, Alito, and Thomas concurring):

Some members of the public might consider "Hillary: The Movie" to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation's course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make.

Justice Stevens (dissent joined by Ginsburg , Breyer, and Sotomayor)

Neither Citizens United's nor any other corporation's speech has been "banned." All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment [allows that] is, in my judgment, profoundly misguided. Although I concur in the Court's decision to sustain BCRA's disclosure provisions, I emphatically dissent from its principal holding.

Source: Supreme Court case 08_CU_FEC argued on Mar 24, 2009

Public campaign finance can't be based on opponent spending.

Justice Scalia joined the Court's decision on AZ FREEDOM CLUB PAC v. BENNETT on Jun 27, 2011:

An Arizona public campaign financing law allowed a person who agreed to the restrictions of a publicly financed campaign to receive an initial allotment from the state. That initial allotment was increased when the spending of a privately financed opponent together with the spending of any independent group exceeded that initial allotment. The public funds to match opponent expenditures topped out at two times the initial allotment.

HELD: Delivered by Roberts; joined by Scalia, Kennedy, Thomas & Alito

Arizona's public financing law places a burden on privately financed candidates. If privately financed candidates spend money above a certain level, they necessarily entitle their publicly financed opponents to greater funding. Their First Amendment right to free speech in a political matter--which includes spending money on their campaigns--is inhibited. Independent groups do not qualify for public financing at all, but their spending still may lead to a funding increase for the candidates the independent groups oppose. Leveling the playing is not a compelling state interest justifying a burden on a First Amendment right, nor is combating corruption. Arizona would be free to give the maximum amount to all public candidates, but that does not justify inhibiting the free speech of candidates and independent groups.

DISSENT: Kagan dissents; joined by Ginsburg, Breyer, and Sotomayor

The First Amendment's core purpose is to foster a political system full of robust discussion and debate. Arizona's public campaign finance did not restrict speech, it increased speech through public subsidy with the goal of decreasing the corruption of both quid pro quo campaign payments made in exchange for official acts or an office seeker feeling beholden to his great financial supporters. Any burden on free speech, the burden could hardly be more substantial than what the Court announces would be legal: a larger, up-front allotment to a public candida
Source: Supreme Court case 11-AZ-PAC argued on Mar 28, 2011

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Other Justices on Government Reform: Antonin Scalia on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

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Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Jul 13, 2015