Monday, September 24, 2007

The Legal Butterfly Effect

Michael Dorf takes us into the world of alternative history and looks at the Butterfly effect and how some landmark cases, had they gone differently (and plausibly differently), might have affected the path of history. Here is one near and dear to my heart, Buckley v. Valeo:
Consider, in this context, the Supreme Court's 1976 decision in Buckley v. Valeo. That case invalidated a number of post-Watergate campaign finance restrictions, including a provision that prohibited a Presidential candidate from spending more than $50,000 of his own money to get elected. The ruling was hardly a slam-dunk, for as numerous critics of Buckley have noted, restrictions on spending money are not identical to restrictions on speech, even though money can be spent on speech. Regardless of who has the better of this argument, it is certainly conceivable that, in 1976, the Court might have upheld, rather than struck down, the $50,000 limit.

Suppose it had done just that. Such a ruling might well have altered the outcome of the 1992 Presidential election. In the general election campaign that year, third-party candidate Ross Perot spent over $60 million of his own money--more than the total amount of money spent by either of the two major party candidates--and won 19 percent of the popular vote. Then-Governor Bill Clinton garnered 43 percent to President George H.W. Bush's 38 percent, and the fiscally conservative Perot probably drew more support from potential Bush voters than potential Clinton voters.

Moreover, even if one thinks Perot drew support more or less equally from the Bush and Clinton camps, many observers at the time thought that Perot's candidacy helped Clinton by, in the words of a 1992 Baltimore Sun article, "distracting the public enough . . . to give the Arkansas governor a chance to get back on his feet after a brutal primary season, and stirring up a call for change." It is thus at least plausible that a different result in Buckley--one that would have had the effect of drastically limiting how much of Perot's own money he could spend, and thus preventing his independent candidacy --would have led to a second term for George H.W. Bush, and a host of resulting dramatic differences in the years since then.
Dorf talks about two cases on the Court's docket for this term, Parker v. District of Columbia (a gun rights case) and Boumedien v. Bush, a case invovling the military tribunals for terrorism suspects. While it is impossible to determine which cases will have the "butterfly" effect in the long term, these cases could affect the short term events of 2008's presidential elections.

Of course, the Court cannot decide cases based upon its view of the Butterfly effect, but it is an interesting line of thought.

No comments: