Rehnquist and the BCRA case
The Washington Post article, Rehnquist May Be Key for Campaign Finance, points out three aspects of the McConnell v FEC case on which Chief Justice Rehnquist may be key:
Normally a reliable member of a three-justice voting bloc on the right with Justices Antonin Scalia and Clarence Thomas, Rehnquist, 78, is much less predictable on campaign finance regulation. And McCain-Feingold supporters believe that, based on his record, the chief justice -- appointed to the bench by President Richard M. Nixon, whose Watergate excesses triggered campaign finance legislation -- could be their best friend in court.
Scalia, Thomas and a more moderate conservative justice, Anthony M. Kennedy, have written opinions suggesting that most of the current campaign finance law is unconstitutional. But Rehnquist was a member of the court majority in 1976 that permitted regulation of campaign fundraising, and since then, he has consistently supported the power of Congress to rein in corporate and union political spending.
At the same time, other parts of Rehnquist's record suggest that he may balk at those parts of the new law that arguably hobble political parties, including aspects of the soft-money ban.
In 2001, Rehnquist joined Scalia, Thomas and Kennedy in dissenting from a 5 to 4 ruling that upheld federal limitations on the amounts political parties may spend in coordination with the campaigns of their House and Senate candidates.
Seeing no possibility of parties corrupting their own candidates, Rehnquist reasoned that "parties are linked to candidates and . . . breaking this link would impose significant costs on speech."
"The fact that he might be going to sustain corporate and union limits doesn't mean he is going to sustain the rest of the statute," said Roy Schotland, who teaches campaign finance law at the Georgetown University Law Center.
Meanwhile, on campaign finance, O'Connor is "even more inscrutable than usual," Schotland said. Though she has participated in several key cases -- voting to uphold the party limits in the 2001 case, but to strike down the corporate limits in the 1990 Michigan case -- she has written relatively little about the issue.
Schotland suggested that both Rehnquist and O'Connor may be interested in arguments based on states' rights that have been advanced by Sen. Mitch McConnell (R-Ky.), the Republican National Committee and other opponents of the soft-money ban.
The opponents argue that the law's provisions, which prevent donations to state parties from being used in support of federal candidates, touch on areas traditionally regulated by state authorities, thus exceeding Congress's authority to supervise federal elections.
Rehnquist and O'Connor, along with Scalia, Kennedy and Thomas, have been part of a solid five-vote majority on the court that has sought to shore up state power in relation to Washington.