Soglin's false activism sighting

Paul Soglin wonders when I am going to criticize Justices Scalia and Kennedy for "judicial activism" based on comments that they made at oral argument in Davis v. Federal Election Commission. Davis involves a challenge to a provision in the McCain-Feingold Act that raises the contribution limits for candidates who face a an opponent who self-finances above a specified amount.

He is nice enough to quote from one my white papers and point out that it was funded by the Federalist Society. Perhaps, someday, he will disclose the funding of all of his activities as well.

Kennedy and Scalia expressed concern about Congress setting the rules for speech in federal elections. Soglin says that this amounts to activism because he, like many others, makes the mistake of equating activism with overturning statutes.Ordinarily I would not criticize a justice for an opinion that hasn't been written but the challenge to the "Millionaires' Amendment" in McCain-Feingold is not based on mere disagreement with Congress' "balancing of the interests involved."

Rather, the question is whether a distinction based upon the type of speech that a candidate is engaged in (here self-financing an election) runs afoul of specific textual provisions in the Constitution, i.e., the First and Fifth Amendments. In my view, these provisions should be interpreted in a way that roots the judicial task - to a substantial degree - in something other than the views of the judge on what constitutes good policy. But the constitutional text does place limits on the legislature and, in a part of my paper that Soglin does not quote, I point out that it is just as activist to ignore a constitutional restraint on the legislature:

Such a working definition, while far from perfect,
avoids a number of common traps. For example, judicial
activism is not synonymous with striking down statutes.
If a statute violates a constitutional command, then it
is a form of activism i.e., of making the rules, to let
it stand notwithstanding its inconsistency with the
people’s foundational document.

Does the millionaire's provision violate the Constitution? I haven't formed an opinion. I can imagine a set of circumstances in which a Congressional response to private speech may do so. Imagine, for example, that Congress decides that fundraising compromises the judgment of sitting legislators and decides to publicly fund only the campaigns of incumbents and to match whatever the challenger or those acting on her behalf have spent. I am skeptical, as well, of public financing schemes that match private dollars spent on a candidate during an election. The purpose seems to be to dissuade protected speech.

The responsive argument - that Congress is trying to "even the playing field" is problematic in the First Amendment context where we distrust regulation (the Constitution facially prohibits it) and might see Congressional regulation of elections as a bit like a hitter calling his own balls and strikes. There are, in fact, some odd anomalies with the Millionaires' Amendment.

Having said that, I am not sure that merely raising the contribution limit operates as a substantial restraint upon or deterrence to protected speech.