More on Yesterday’s Opinion in the Vermont Cases

By Kevin Russell
on Jun 27, 2006 at 4:54 pm

Brenda Wright of the National Voting Rights Institute, who argued on behalf of one respondent, has these thoughts on yesterday’s decision:

Professor Briffault’s comments yesterday summarize the ruling well. On the spending limits side, since Buckley saw only one Justice – Byron White – voting to uphold campaign spending limits, it’s worth noting some of the reasons the three dissenters gave for saying that Buckley should be reconsidered on that point (and besides, who else but the defenders of the Vermont reform law will highlight the dissents)? Not surprisingly, the themes of democratic accountability and structural integrity of the democratic process that many have found in the plurality opinion are even more prominent in the opinions supporting limits. Justice Stevens wrote, “Not only do [spending] limits serve as an important complement to corruption-reducing contribution limits . . . but they also protect equal access to the political arena, [and] free candidates and their staffs from the interminable burden of fundraising. . . . . When campaign costs are so high that only the rich have the reach to throw their hats into the ring, we fail to protect the political process from undue influence of large aggregations of capital and to promote individual responsibility for democratic government.” (p. 6, citations and internal quotations omitted). Justice Stevens further noted the substantial evidence that spending limits promote electoral competition, citing the example of the city of Albuquerque, where challengers had an unbroken record of defeating incumbent mayors while spending limits were in effect. (p. 7, n. 4).

He concluded, “I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities . . . . And they surely would not have expected judges to interfere with the enforcement of expenditure limits that merely require candidates to budget their activities without imposing any restrictions whatsoever on what they may say in their speeches, debates and interviews.” And here he invoked Art. I., sec. 4 as a basis of congressional authority to enact federal spending limits.

Justice Stevens is the only current Justice who was also serving at the time of Buckley, although he did not participate in the Buckley decision.

Justice Souter, while stopping short of saying Buckley should be overruled, wrote for himself and Justice Ginsburg that “the Buckley Court did not categorically foreclose the possibility that some spending limit might comport with the First Amendment.” (p. 2). In particular, “the Court did not squarely address a time-protection interest as support for the expenditure limits” (p. 3 n.*). Justice Souter wrote, “Vermont’s claim is serious. Three decades of experience since Buckley have taught us much, and the findings made by the Vermont Legislature on the pernicious effect of the nonstop pursuit of money are significant.” (p. 3). Justice Souter thus would have affirmed the Second Circuit’s judgment allowing the remand to go forward on the issue of narrow tailoring.

As has been noted, the plurality did not fully engage with the justifications for spending limits record, given its conclusion that stare decisis foreclosed a fresh consideration of spending limits. A fair question to pose is why Justice Breyer did not seize this opportunity to revisit Buckley on the spending limits question, given that he indicated his willingness to reconsider Buckley only a few years ago in Nixon v. Shrink MO Gov’t PAC, 528 U.S. 377, 405 (2000) (concurring opinion of Breyer, J., joined by Ginsburg, J.) (calling for approach that balances competing constitutional interests and stating “it might prove possible to reinterpret aspects of Buckley in light of the post-Buckley experience stressed by Justice Kennedy. . . making less absolute the contribution/expenditure line, particularly in respect to independently wealthy candidates. . . . But what if I am wrong about Buckley? Suppose Buckley denies the political branches sufficient leeway to enact comprehensive solutions to the problems posed by campaign finance. If so, like Justice KENNEDY, I believe the Constitution would require us to reconsider Buckley”).

As part of the answer, one cannot help but see Roe v. Wade hanging over these opinions. Given the recent changes on the Court, and in particularly Justice O’Connor’s retirement in June 2005, Roe is under siege, and the Court already has two abortion cases on its docket for next term. Justice Breyer’s endorsement of stare decisis comes against that backdrop, and Justice Alito’s refusal to join the plurality in endorsing stare decisis as a basis for rejecting the spending limits could be seen in the same light. Moreover, if this factor did play a role, then (as some have noted) it may be equally significant that Chief Justice Roberts, unlike Justice Alito, joined Justice Breyer’s opinion embracing the importance of stare decisis as a principle of judicial restraint.

For that matter, Justice Kennedy also expressed his willingness to reconsider Buckley’s holding not only on contribution limits, but on spending limits as well, in Shrink Mo. PAC, specifically citing the candidate time-protection interest: “For now, however, I would leave open the possibility that Congress, or a state legislature, might devise a system in which there are some limits on both expenditures and contributions, thus permitting officeholders to concentrate their time and efforts on official duties rather than on fundraising.” Id. at 409-410 (Kennedy, J., dissenting). Yet Justice Kennedy’s concurrence does not separately discuss the time-protection interest that he flagged in Shrink. A judicial equivalent of Gilda Radnor/Emily Litella saying “Never mind”? One wonders whether Justice Kennedy’s opinion started out as a longer exposition, especially given the somewhat abrupt writing within the brief opinion.