I'm Predicting a Cert Grant in Second Circuit Campaign Finance Case

A press release issued by the James Madison Center today says the following:

The Vermont Republican Party asked the United States Supreme Court today to review Vermont’s campaign finance law which imposes severe limits on contributions to and expenditures by candidates for state office in Vermont. The Vermont Republican Party, and several other Plaintiffs, asked the Supreme Court to reverse the Second Circuit’s decision upholding Vermont’s mandatory candidate expenditure limits and Vermont’s contribution limits to candidates, which are the lowest in the Nation.

For the first time, a federal appeals court has suggested that mandatory candidate expenditure limits are constitutional, despite the 1976 U.S. Supreme Court decision in Buckley v. Valeo, 424 U.S. 1 (1976), which struck down a similar federal law. The Second Circuit decision conflicts with the recent decisions of the Sixth and Tenth Circuits, both of which struck down mandatory candidate expenditure limits. Homans v. City of Albuquerque, 366 F.3d 900 (10th Cir. 2004); Kruse v. City of Cincinnati, 142 F.3d 907 (6th Cir. 1998).

The Vermont Republican Party also asked the Supreme Court to review Vermont’s extremely low $200-$400 contribution limits. The Supreme Court has warned that contribution limits that are too low are unconstitutional. Justices Breyer and Ginsburg, as well as three other Justices, expressed the concern in a 2000 case that Missouri’s contribution limit of $1,075 for statewide candidates might be too low. Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 404 (2000) (Breyer, J., concurring)

James Bopp, Jr., lead counsel for the Vermont Republican Party, said that “The Second Circuit has challenged the Supreme Court’s authority by directly contradicting its thirty year record of holding expenditure limits unconstitutional.” Furthermore, he said that “lower courts, since Shrink, have given the state legislatures carte blanche in setting contribution limits. The courts have misread Supreme Court precedent as saying ‘anything goes.’ However, contribution limits as low as Vermont’s have nothing to do with preventing quid pro quo corruption, which is possible only with large contributions. This is likely the last opportunity the Court will have to say that some contribution limits are just too low to be constitutional.”

“On the whole, the Vermont law is a direct assault on the freedom of speech of candidates for public office,” said Bopp. “It threatens to make bit players of candidates in their own race by depriving them of the money needed to run an effective campaign. The Supreme Court should take this case to call a halt to such anti-democratic measures.“

The opinion of the Second Circuit, Landell v. Sorrell, is reported at 382 F.3d 91 (2d Cir. 2004) and the appeal pleading in the Supreme Court are available from the James Madison Center for Free Speech at jamesmadisoncenter.org.

Like Jonathan Gass, I can't find the cert. petition on line. I have already explained why I think a cert grant in this case is extremely likely. My view is only strengthened by the very heated concurring and dissenting opinions on the en banc rehearing denial coming out of the Second Circuit (see here and here on opinions that continue to debate the issue).
I would expect the Court to grant cert only on the expenditure limit question, and not the contribution limit question. That could change, however, if the Court does not rule on this petition until next term, and in the interim the Chief Justice is replaced by a Justice whose views on campaign finance are closer to Justice Scalia or Thomas. UPDATE: Lyle Dennison has posted the questions presented in the cert petition.

Posted by Rick Hasen at May 12, 2005 02:18 PM