It is difficult to follow Linda Greenhouse’s reasoning that the Court has been “broken” because it has been made into an electoral “prize.” Presidential candidates campaign on promises to support the nomination and confirmation of Justices who will move the Court’s jurisprudence in a desired direction. Why should they not? The Court does not decide only abstruse legal issues of interest primarily to learned commentators. If electoral competition necessarily features arguments about--to name a few-- reproductive rights, or voting rights, or the role of money in politics, then it will require candidates to take a stand on the Court. And in some elections, the issue will be right in the thick of the fight.

Donald Trump made as much as he could of the critical importance to Republicans of a Court molded in the image of the late Justice Scalia. Secretary Clinton told the Democratic Convention that: “We need to appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them. And we’ll pass a constitutional amendment to overturn Citizens United.” No one doubted that the election would be consequential for the Court. Voters were entitled to know how much of a priority each party attached to the issue and what the candidates would look for in their nominees. The parties and their candidates obliged--as they should have.

None of this excuses the Republican refusal to provide a hearing for and allow a vote on the Garland nomination. But it is mistake to confuse this escalation in the struggle over the Court with the larger point about the central importance in national political conflicts of the Court’s composition. The Senate has an obligation to attend to the procedures and norms consistent with institutional interests and its governing responsibility in the long run. One aspect of this obligation is managing and translating political pressures, not giving entirely into them, in order to preserve the capacity of the body to function as a creditable legislature. If Senator McConnell were to announce that the Senate majority will closely coordinate legislative priorities with the RNC and that the RNC Chair will attend, to this end, the weekly Senate Republican Caucus lunches, there would be an outcry.

The Garland maneuver is an abuse close to this in kind. The Republican Senate majority decided to shape a process---in effect, to invent one--to enable the party’s Presidential candidate to campaign on a pledge to nominate the appropriate successor to Scalia, and to turn the nomination into electoral prize. The Senate subordinated its “advice and consent” function to Republican electoral objectives. Never before had the Senate taken the position that a duly elected President in an election year had no call on the Senate to advise and consent on a Court nomination. As Robin Bradley Kar and Jason Mazzone have shown, the Senate has “transferred” to the next administration the power to nominate to fill a vacancy only when the president had assumed office on the death of a predecessor, or a nomination was made by one president after another had been elected but not yet taken the oath.

How did Justice Scalia come to write a dissent as he did in McIntrye, insisting on the role of disclosure and relying for the power of his point on the need to follow the judgment of legislators in protecting or enhancing the electoral process?  The question this raises is not whether Scalia was or was not a conservative on this issue, but what kind of conservative he was. As it happens, the explanation also sheds light on the recent history of campaign finance reform and the Court’s response.  The emphasis here is on “response”, for the Court—and Justice Scalia—responded to developments in the law, and in political practice, from Buckley onward, and his position may be fully understandable only within this context.

One day there may be personal papers and other accounts not available today that will fill out our understanding of Justice’s Scalia’s thinking, but in the meantime, the best sources are what he wrote and said, and most of all, what he chose to write, as Justice, in opinions, concurrences and dissents.  It has to be granted at the outset that he addressed the issue outside these opinions, and perhaps inevitably on these occasions, in interview or casual comment, he himself oversimplified.  He would say “the more speech, the better,” provided that the audience could know who was paying for it.  This would give observers reason to imagine that he was a “free speech” absolutist.

As Robert Mutch reminds us in his comprehensive history of campaign finance reform, there were such absolutists on the attack against the Watergate reforms from the very beginning. Buying the Vote: A History of Campaign Finance Reform 140-143 (2014). They gave disclosure some room, but they were otherwise firmly against the other elements of the law in place today, which means contribution as well as expenditure limits.  Mutch argues that they needed a fresh hand to play in this game, and it was constructed out of what he takes to be novel claims of “free speech”—to restrict the use of money in politics was tantamount to restricting speech.  They disdained any rationale for these restrictions, the corruption rationale as well as (and perhaps especially) another grounded in considerations of “equality.” They brought the case known as Buckley on this ground, and, the Court having split the difference—money was speech in some but not in all ways-- they were not happy with the outcome.

Early in his tenure on the Court, however, Justice Scalia declared that “Buckley should not be overruled, because it was entirely correct.” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 683 (1990) (Scalia, J., dissenting).  He was primarily concerned to defend the “express advocacy” line that Buckley had drawn around independent expenditures, but he was satisfied that the Court had properly upheld contribution limits as measures targeted at the “plain” risk of corruption:

Certain uses of "massive wealth" in the electoral process – – whether or not the wealth is the result of "special advantages" conferred by the State – – pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control.

Id. at 682.  The Justice also did not then question, nor at any time later, the value of disclosure, which the Buckley also sustained on the strength of the anti-corruption interest.  So overall, Scalia thought Buckley had gotten it right, establishing the express advocacy line which it had “set in concrete on a calm day”, Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449, 499 (2007)(Scalia, J., concurring), while allowing for limits-- but only to address the risks of corruption, not on the basis of an “equality” rationale.

In the tributes to Justice Scalia and the immediate appraisals of his life’s work, his campaign finance jurisprudence will come up and the late Justice is described as a formidable foe of regulation.  And he certainly could be a hard-charging skeptic, a member of the majority in Citizens United and other cases that blunted the reform movement toward more regulation or undid rules already in place.  But it is not the whole story and it misses a question at the center of his jurisprudence that has yet to be clearly answered.

It is well known that Scalia at least relaxed his hostility to regulation within the distinctive domain of disclosure. He endorsed legislative discretion to impose disclosure requirements “where the idea uttered [is] in the electoral context.”  McIntyre v. Ohio Elections Commission, 514 U.S. 344, 378 (1995) (Scalia, J., dissenting).  He went still further.

To the late Justice, campaign related disclosure was a positive good, important to the protection of electoral process.  To demand public accountability of speakers was to discourage lying and to promote a “civil and dignified level of campaign debate.” Id at 387.  Disclosure requirements would temper the temptation to “mudslinging” and “character assassination,” Id. at 382, and reduce the incidence of “dirty tricks.” Id at 383. Scalia scorned the suggestion that the American experience with anonymous pamphleteering had anything to say about anonymity as a constitutional right.  The case for protecting anonymous speech could not overcome the imperative of measures “protecting and enhancing democratic elections.” Id. at 381.

Scalia made this case for mandatory disclosure on originalist grounds, but in light of his reasons for opposing other forms of regulation, the argument is intriguingly constructed. It presents a puzzle.