The Supreme Court's End-of-Term Campaign Finance Decision: Following the Key Buckley Precedent, But Exposing Some Justices' Critiques of It, Too

By JULIE HILDEN


julhil@aol.com
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Tuesday, Jul. 25, 2006

On June 26, the Supreme Court issued a decision on the law of campaign finance, Randall v. Sorrell. There, the Court struck down a Vermont law that had limited both candidates' own spending on campaigns, and contributions to campaigns by individuals, organizations, and political parties.

The majority included Justice Breyer, who wrote the decision, Chief Justice Roberts, and Justices Alito, Kennedy, Scalia, and Thomas. Though these Justices all agreed that the law was unconstitutional, they disagreed on the underlying analysis as to why. Justices Ginsburg, Souter and Stevens dissented.

The opinions, taken together, were notable primarily in that they held a line: They neither broadened the Court's key campaign finance decision, Buckley v. Valeo, nor did they curtail it.

But the particular reasons why the Court held the line, in this case - and the views of the Justices who would have happily crossed that very line - deserve attention.

Striking Down Expenditure Limits: A No-Brainer for the Court

In one respect, the application of Buckley in this case was a no-brainer: Buckley said that the government can't tell candidates how much they can spend, and the Court reaffirmed that principle.

Buckley also gave strong reasons why the government can't tell candidates how much they can spend - because such restrictions tend to "restrict[] the number of issues discussed, the depth of their exploration, and the size of the audience reached." Imagine, by comparison, if the government tried to put a maximum on newspapers' budgets - a clearer First Amendment violation could hardly be imagined. Like newspapers, candidates play a role in calling attention to problems facing the public and in advocating their platform. Candidates do this by speaking, and they need to spend to speak.

Attorneys defending the Vermont law's spending limits argue that the Buckley Court hadn't considered that these limits mean candidates will spend less time raising money, and more time campaigning among ordinary voters. But Justice Breyer was skeptical that his predecessors could have missed this "perfectly obvious" point.

The attorneys might have done better to cite a development - such as Internet campaigning - that, in 1976, the Buckley Court would not have anticipated. After all, Vermont's own Howard Dean, in his 2004 presidential campaign, showed that money, reach, and political influence are not always inexorably connected, by making wise, cheap use of the Internet, as well as of young, tech-savvy volunteers.

Striking Down Contribution Limits: A Harder Question

The Buckley Court found contribution limits far more acceptable than expenditure limits - though it conceded both "implicate fundamental First Amendment issues." ("Contribution" limits involve limiting the amount of money a person or entity can donate to a particular candidate. In contrast, "expenditure" limits address how much a candidate can spend on his or her campaign.)

The Buckley Court criticized expenditure limits harshly, on the ground that the freedom "to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline."

Contribution limits, in contrast, didn't prevent contributors from contributing elsewhere, or from speaking out themselves, rather than funding candidates to speak for them; so despite contribution limits, contributors could still use an unlimited number of tanks of "gas" by speaking freely, and funding their own speech.

(The Buckley Court may also have thought, quite reasonably, that contribution limits would be better than expenditure limits in serving the asserted government interest of preventing corruption and the appearance thereof; after all, quid-pro-quo contributions are the height of corruption. But in the years since Buckley was decided, in 1976, "hard money"/"soft money" games allowed evasion of contribution limits and undermined any anticorruption effect. In 2003, in McConnell v. FEC, the Court upheld McCain-Feingold's federal ban on soft-money donations to political parties - and it's possible this ban may bolster Buckley.)

But Vermont's contribution limits were especially austere: During each "two-year general election cycle" individuals, political committees, and political parties were each maxed out at $400 for governor, lieutenant governor, and other statewide offices, $300 for state senator, and $200 for state representative. Meanwhile individuals were maxed out at $2000 for contributions to a given political party. (Volunteer activities, however, did not count as in-kind contributions under the Vermont law.)

Significantly, parties were defined broadly so that, as Justice Breyer explained, "for example, the statute treats the local, state, and national affiliates of the Democratic Party as if they were a single entity and limits their total contribution to a single candidate's campaign for governor (during the primary and the general election together) to $400."

Previously, the Court had upheld limits of $1000 and higher - not limits in the low hundreds. Based on Vermont's low limits - the lowest in the nation, he noted - and the factual evidence in the record regarding their effect, Justice Breyer saw "danger signs" in the form of potentially heavy encroachment on the First Amendment, putting free speech in jeopardy.

Recognizing the need, as Breyer put it, to set "some lower bound" in this area, the Court struck down Vermont's limits. The Court also declined to, in effect, rewrite the statute to include higher limits - rightly leaving this to the Vermont legislature.

The Justices' Views on Buckley: A Variety of Perspectives

Though the vote in this case left Buckley alone, a number of Justices suggested that they were not too happy about that. Only Justice Breyer and Chief Justice Roberts, who joined Breyer's opinion, seem like they may be happy simply to let Buckley stay put.

Justice Alito specifically left himself open to revisiting Buckley - arguing that the parties' advocacy had not sufficiently raised the question for the Court to need to confront it in this case.

Justice Kennedy provocatively commented that "The universe of campaign finance regulation is one this Court has in part created and in part permitted by its course of decisions. That new order may cause more problems than it solves." He particularly noted the prevalence of Political Action Committees (PACs). But he left it ambiguous whether he would simply favor a weakening (or overruling) of Buckley, on the ground that it does more harm than good, or whether he might be open to an updated, savvier - and possibly broader -- replacement for Buckley that effectively addresses PACs.

Justice Thomas definitely favors overruling Buckley; so does Justice Scalia, who joined Thomas's opinion. Thomas expressed the view that Buckley "provides insufficient protection to political speech, the core of the First Amendment" - and decried Buckley's illegitimacy. Apparently, Scalia agrees.

Taking a directly contrary position, Justice Stevens wants not a weakening, but an expansion, of Buckley - one that would leave legislatures free to limit expenditures, as well as contributions. Justice Stevens wrote, "I am convinced that Buckley's holding on expenditure limits is wrong, and that the time has come to overrule it," and he commented specifically that "I have not reached this conclusion lightly."

Justice Stevens took specific issue with both the equation of money and speech, and the Buckley Court's crucial car/gasoline metaphor. He wrote, "[W]hile a car cannot run without fuel, a candidate can speak without spending money. And while a car can only travel so many miles per gallon, there is no limit on the number of speeches or interviews a candidate may give on a limited budget." And he wittily noted that it doesn't necessarily take a Hummer to get to where one is going. In the end, Justice Stevens argued, it behooves courts to pay attention to the legislative judgment that "Enough is enough."

While Justice Stevens didn't stress the Internet in suggesting the money/speech equation is a fallacy, perhaps he should have: Virtually free distribution of speech has to be significant in disrupting the tendency to equate money and speech. Of course, the "digital divide" means many voters still lack Internet access. But many do have it, at least at work or at the public library.

Justices Souter and Ginsburg, though less adamant and a bit more cryptic than Justice Stevens, also seem to indicate a willingness to revisit Buckley, to move its line in the direction of allowing more regulation, not less, and exhibiting greater deference to state legislators. They also both found Vermont's contribution limits acceptable - that is, not too low, and felt that, properly construed, the limitation on political party contributions would not be as drastic as Justice Breyer portrayed it to be.

The Upshot: Dissatisfaction with Buckley From Both Liberals and Conservatives

In sum, if the Court does agree to reconsider Buckley, it's very likely we'll see Stevens, Souter and Ginsburg in favor of broadening it substantially, to let legislatures regulate political expenditures and contributions as they choose; and Thomas and Scalia in favor of junking Buckley entirely.

The other Justices' views, as noted above, are less clear. Perhaps Justice Kennedy will be the swing vote once again here: His worries about the problem of PACs, as I noted above, could cut either way.

I think the Court should indeed decide to accept full briefing and a new factual record, in light of thirty years of experience, technological innovation, and cutthroat politics. What it should do when it hears this crucial argument, is a much more difficult question.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden has written frequently for this site on defamation and the First Amendment - including in this column about Britney Spears, and this one about Tom Cruise. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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