June 26, 2006

Some Initial Thoughts on the Vermont Campaign Finance Decision

The decision in Randall v. Sorrell today is a monumental one, because it marks the first time that the two new Justices have considered a campaign finance case. Though the decision is a defeat for Vermont and for those who supported Vermont's campaign finance laws, this is about the best decision that (realistic) supporters of campaign finance regulation could have hoped for from the new Roberts Court. The language about the rights of political parties may also turn out to be very important, suggesting laws regulating campaign financing must give them a special role in fundraising. In sum, this is something of a split decision for those who support and oppose campaign finance regulation.

I would say these are the headlines of the opinion in a nutshell:

1.Chief Justice Roberts and Justice Alito agree that some campaign contribution limits are consistent with the First Amendment. This was a huge question for those of us in the field. Justice Breyer wrote a plurality decision joined by these two Justices, which, on the question of contribution limits, distinguishes rather than overrules recent cases such as McConnell and Shrink Missouri upholding campaign contribution limits. Now it might be that Chief Justice Roberts and Justice Alito will evolve toward the Scalia-Thomas-Kennedy position that all (or most, in the case of Kennedy) contribution limits violate the First Amendment. But for now, you have these three Justices, along with dissenting Justices Ginsburg, Souter, and Stevens, who believe that a great many of the country's campaign contribution laws are constitutional. This is a very big deal and good news for those of us who support such limits. Justice Kennedy would have struck the limits down as well, though one senses that if he wrote the majority opinion, it would have called into question many more state and local (not to mention federal) campaign contribution laws.

2. Battles will rage across the country over the constitutionality of particular contribution limit laws. Justice Breyer has set out a two part test to judge when a campaign contribution limit is too low, and in typical Supreme Court fashion, the second part of the test has five parts. This plurality opinion (because it is narrower than the position taken by the three dissenters) will set out the controlling test. Under the first part of the test, courts will look for "danger signs" that a contribution limit is so low as to stifle electoral competition. If the limit is too low, there are five factors that led the plurality to conclude the Vermont limits were too low:

    a. The contribution limits appear to significantly restrict the amount of money available to challengers to run competitive elections.

    b. The same low limits are imposed on political parties, harming the right to association.

    c. The law treats volunteer expenses too harshly, In the context of very low contribution limits, this imposes too high a First Amendment cost.

    d. The limits are not adjusted for inflation.

    e. The record does not show a particular danger of corruption to justify such stringent limits on constitutional rights.

The dissenters would have upheld the contribution limits, seeing them as not much different than the ones upheld in Shrink Missouri.
In lower courts, the question will be whether the contribution limits are too much like Vermont's to be constitutional.

3. Political parties may now start arguing for additional constitutional protections under the third factor listed above. Cases such as McConnell and Colorado Republican II rejected the argument that political parties should have special First Amendment rights because of how the facilitate association. This case may revive that line of authority, and that could turn out to be quite significant in the long run.

4. The nail in the coffin for expenditure limits. From the moment I heard that the supporters of the law (who won in the Second Circuit) were supporting the cert. petition, I knew it was a mistake (and said so many times on the blog). The Court was poised to move away from its deferential position in the campaign finance cases, and there was no need to hasten it. In any case, part of the mission of some of the plaintiffs' lawyers had been to get the Court to accept expenditure limits. What we got instead is a firm majority on the Court rejecting the idea that expenditure limits are constitutional, even under the "time preservation rationale," though there's enough room in the opinions for someone to raise the argument again one day, through a more frontal attack on Buckley and enough argumentation to satisfy Justice Alito (see his concurring opinion) that the issue was fairly raised.

Posted by Rick Hasen at June 26, 2006 09:05 AM