Working Paper No. 06-47:
Justice Breyer's Party
Date Posted: 2006
In the wake of recent decisions, we may be seeing an emerging desire on the part of key Justices on the Supreme Court to grant legislators greater discretion in the regulation of "outside" special interests than in the regulation of parties and candidates. While they may have tempting sentimental or idiosyncratic reasons for favoring one type of entity over another, such favoritism can have damaging unintended consequences. It also neglects the Court's duty to police regulatory overreaching by Congress.
After a review of the role parties and other groups play in politics, and some history, this essay then summarizes how federal law regulates parties, and the effect this has in particular on the important work done by state and local parties. It then looks at the regulation of so-called 527s, as well as some recent reform proposals for them. With this patchwork as background, it then takes a critical look at Justice Breyer's recent pronouncements, in his opinions, his questions at oral argument, and his scholarly writing. This essay contends that Breyer's approach to the regulation of groups — ultimately favoring parties over other forms of political organization -- inadequately protects political liberty overall, and extends deference to Congress in areas warranting closer judicial scrutiny.