Reid Cox emails:

In the Kennedy concurrence (in Randall v. Sorrell) I cannot seem to get by the fact that there may be a significant error. Kennedy’s third graf seems to be about campaign contribution limitations, but strangely, the second sentence of that graf switches back into discussing “expenditure limitations.” To make it matters worse, the second sentence, as it currently appears, accurately describes the law with respect to “expenditure limitations” — namely, that under Buckley they are subject to “exacting scrutiny.” But, at the same time, if “expenditure limitations” was changed to read “contribution limitations” to agree with the rest of the graf (and the flow of the opinion), the sentence would, I believe, accurately reflect Kennedy’s belief and prior suggestions that the “exacting scrutiny the plurality applies to [contribution] limitations … is appropriate.” So which is it? As I said, I believe both the rest of the graf and the flow of the opinion (note the previous graf discussed expenditures and now, in this graf, Kennedy suggests he is moving on to another issue by stating “The parties neither ask the Court to overrule Buckley … [as] that decision applied to campaign contributions””) suggest the second sentence of the third graf erroneously refers to “expenditure limitations” rather than “contribution limitations.”

I think this is indeed a typo and that Justice Kennedy meant to refer to “contribution limitations.” On the exacting scrutiny point, it is easy to forget, given the extremely deferential standard of review of contribution limits in recent cases (such as Shrink Missouri) that the Court in Buckley used the term “exacting scrutiny” to refer to both contribution and expenditure limits:

We cannot share the view that the present Act’s contribution and expenditure limitations are comparable to the restrictions on conduct upheld in ”Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card. Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two. Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a non speech element or to reduce the exacting scrutiny required by the First Amendment. See Bigelow v. Virginia, 421 U.S. 809 , [424 U.S. 1, 17] 820 (1975); New York Times Co. v. Sullivan, supra…

(my emphases). As Ned Foley has noted, Justice Breyer’s opinion emphasizes Buckley over Shrink Missouri.