Free speech and campaign finance.

Here is Linda Greenhouse's article on yesterday's cert grants in two campaign spending cases. She speculates that the Court might be ready to reconsider the key precedent, Buckley v. Valeo -- as it did not do a few years ago when it upheld the McCain-Feingold law, in a 5-4 case. Justice O'Connor contributed that fifth vote -- the others were Stevens, Souter, Ginsburg, and Breyer -- so expect to see the Senate Judiciary Committee to do some probing questions when Bush's next nominee shows up.

Greenhouse describes the key case, challeging state regulation:

The Vermont law was enacted in 1997 as a direct challenge to the Supreme Court's campaign finance precedents, or as Vermont's secretary of state, Deborah L. Markowitz, put it in an official memorandum, with the "express legislative goal of giving the Supreme Court an opportunity to re-evaluate its decision in Buckley v. Valeo."

While the law's strict contribution limits were notable, its main departure was in restricting campaign expenditures. Candidates for governor, for example, are limited to spending $300,000 in a two-year election cycle, regardless of whether the cycle includes a primary election.

In a 2-to-1 ruling last year, the United States Court of Appeals for the Second Circuit, which includes Vermont, endorsed the state's basic approach. It held that the state had correctly concluded that Buckley v. Valeo was not a complete prohibition on spending limits, but that such limits could be justified by rationales beyond the anticorruption rationale that the Supreme Court considered at the time.

These additional rationales included two that the appeals court panel's majority said were now "compelling": addressing the growing public cynicism about the impact of money on politics, and limiting the amount of time that candidates had to devote to raising money.

The appeals court then sent the case back to the federal district court in Vermont for a determination of whether in setting its spending limits, Vermont had chosen a sufficiently "narrowly tailored" means of achieving its valid objectives. In another portion of its ruling, the appeals court upheld the contribution limits.

The full appeals court then debated whether all 11 judges should rehear the case, and decided against rehearing by a vote of 6 to 5. The dissenters argued forcefully that no matter what state officials or lower court judges had to say, only the Supreme Court itself had the authority to cast Buckley v. Valeo in a new light.

This promises to be a very telling test of the new Court! It will be fun to see the defer-to-us routine the Judiciary Committee Democrats used against Roberts redone in the context where it entails minimizing Free Speech rights. That will be a little tricky, since the Democrats also like to project the image that they are the ones who really care about constitutional rights. Of course, Feingold himself will be on the Committee, and no one is better suited to articulating the tricky position than he is.