More on Today’s Opinion in the Vermont Cases

Richard Briffault, Professor at Columbia Law School, has these thoughts on today’s decision:

In Randall v. Sorrell, the Supreme Court, by a vote of 6-to-3 struck down a Vermont law, Act 64, that had sought to impose both expenditure limits on races for state office and very tight limits on contributions by individuals and political parties to state candidates. The case is significant in several respects. Coming less than three years after McConnell v FEC upheld the main provisions of the Bipartisan Campaign Reform Act, Randall marks a sharp shift away from the pro-campaign finance regulation approach the Court had taken in recent years. It is the first time since 1996 that the Court struck down a campaign finance law, and it is the first time the Court has ever invalidated a limitation on individual or party donation. It is also the first time that Chief Justice Roberts and Justice Alito – who were both in the majority – participated in a Supreme Court campaign finance decision.

Yet, unsurprisingly for a case that generated six opinions and no majority opinion, Randall is more complicated than a simple tilt against campaign finance reform. Although the plurality opinion relies heavily on the foundational 1976 campaign finance decision, Buckley v. Valeo, a majority of the Justices rejected one or another of the basic elements of Buckley. Moreover, in its discussion of contribution limits, Justice Breyer’s plurality opinion gave little attention to the First Amendment rights of campaign donors – the traditional focus of campaign finance doctrine – and instead grounded its analysis on the impact of contribution limits on the ability of challengers to mount competitive campaigns.

Expenditure limits: Modern campaign finance law begins with Buckley, which held that campaign money involves speech and association rights protected by the First Amendment but then determined that limits on contributions to candidates raise different concerns than limits on spending by candidates and independent groups aimed at influencing the voters. Buckley found that contribution limits place only a modest burden on donor speech and association which can be justified by the governmental interest in preventing corruption, but that spending limits “impose direct and substantial restraints on speech” which cannot be justified either by the interest in preventing corruption or the goal of promoting equality.

In passing Act 64, the Vermont legislature sought to force the Court to reconsider Buckley’s rejection of spending limits. A Second Circuit panel held the Vermont limits might be sustainable on a combination of two theories not considered by Buckley. First, the appeals court found that a rule of limited contributions but unlimited expenditures meant that candidates are dependent on “bundlers” – individuals and interest groups who could “bundle” and deliver to candidates large numbers of contributions – thus creating a kind of corruption danger not foreseen by Buckley. Second, the appeals court found the combination of unlimited spending and limited donations forces candidates and officeholders to devote excessive time to fundraising. The appeals court said this argument had not been considered in Buckley, either.

Randall emphatically rejected Vermont’s effort to reopen the spending limits question. Justice Breyer’s plurality opinion (joined by Chief Justice Roberts and joined in part by Justice Alito), Justice Kennedy’s concurrence, and Justice Thomas’s concurrence (joined by Justice Scalia) collectively closed the door to spending limit. Justice Breyer treated this as a matter of stare decisis. Rather than addressing on the merits the First Amendment issues raised by spending, Justice Breyer penned a paean to stare deceases. The plurality opinion struck some odd notes here.

First, Justice Breyer asserted that Vermont sought a straightforward repudiation of Buckley. Justice Alito, who broke with the plurality on this point, had the better of the argument in noting that this was no more than a backup argument – “an afterthought almost” – in respondents’ brief; the thrust of Vermont’s argument, as reflected in the Second Circuit opinion, was that anti-bundling and time-protection provided the Court with arguments for spending limits that had not been addressed in Buckley.

Second, in stressing that reliance is a part of the argument for stare deceases, the plurality observed that “Congress and state legislatures have used Buckley in drafting campaign finance laws.” Of course, as Justice Stevens’ dissent indicated, that “reliance” mostly involved legislative observance of a court-imposed restriction on legislative powers rather than any affirmative use of Buckley in crafting laws.

Third, although Buckley never discussed the time-protection argument in the context of spending limits, the plurality concluded that stare deceases required the rejection of that argument, too. Buckley’s validation of the presidential public funding program had noted that public funding reduces the time burdens of fundraising. According to the plurality, the Buckley Court was, thus, aware of the time-burden problem and had implicitly rejected it as a possible justification for spending limits. So stare decisis precluded any further analysis

Contribution limits: Although Act 64’s innovation was its spending limits, by the time Randall reached oral argument it was clear the spending limits were likely to go down and the real attention of the Court and campaign finance watchers turned to the Acts’ tight contribution limits. Although these, too, were invalidated 6-3, the majority was fragmented into three opinions – Justice Breyer’s plurality and Justice Kennedy’s and Justice Thomas’s concurrence. As they had previously, Justice Thomas (joined by Justice Scalia) called for overruling this part of Buckley and applying strict scrutiny to contribution limits; they easily rejected the Vermont limits. So, too, as he had previously, Justice Kennedy complained about the “legal universe” created by Buckley and the Court’s more deferential approach to contribution limits, and without providing much analysis agreed that the Vermont limits had to go.

Justice Breyer’s opinion, joined by Chief Justice Roberts and Justice Alito, however, broke significant new conceptual ground. Reiterating both Buckley’s acceptance of contribution limits and the Courts’ general posture of deference to legislative judgments on contribution limits, the plurality noted that there is still some constitutionally mandated “lower bound” for contribution limits. Although such limits can prevent corruption, “limits that are too low can also harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders.” In Justice Breyer’s opinion, the Vermont limits created just that harm. As Justice Thomas critical concurrence complained, the plurality did not provide a precise test for determining when contribution limits are unconstitutionally low, it gave great emphasis, and detailed attention, to a number of factors.

As the plurality noted, the dollar value of the limits were low relative to limits in elections for comparable offices in other states. Vermont provided a single limit for an election cycle – which includes both a primary and a general election – which tends to advantage incumbents who generally don’t face primaries over challengers who do. The Vermont limit is not indexed, so it will effectively decline over time. And Vermont applied the same tight limit to party donations as it did to individuals. As the plurality noted, parties often play a key role in electoral competition by targeting their contributions to competitive races. Although the plurality did not find that the constitution requires a higher limit for parties, it concluded that the low limits on parties would prevent parties from aiding competition and exacerbate the potentially anti-competitive effects of the low individual limits. Vermont also treated expenses incurred by volunteers as contributions subject to limits, thus, again burdening competition. Taken together these many restrictive elements of the Vermont law imposed “substantial restrictions on the ability of candidates to run a competitive election.”

Implications: The Court’s approach to campaign finance regulation continues to be highly fragmented. Justices Thomas and Scalia clearly, and Justice Kennedy a little more obliquely, are hostile to campaign finance regulations – both expenditure limits and contribution caps. Justices Stevens, Souter, and Ginsburg – who all dissented – are pro-regulation, willing to support both kinds of restrictions. Justice Breyer, Chief Justice Roberts, and Justice Alito appear to be in the middle – opposed to spending limits, supportive of contribution limits, but willing to strike down even some contributive limits as too low. For Justice Breyer, who in a concurring opinion in Nixon v. Shrink Missouri Government PAC in 2000, had indicated a willingness to support some spending limits, Randall’s stare deceases based rejected of spending limits appears to be a shift against spending limits. On the other hand, his validation of contribution limits is consistent with earlier opinions combining a pro-regulatory approach with the belief that some contribution limits are too low.

Randall’s contribution limits may inject new instability into this area. Although previous opinions had held that contribution limits are subject to judicial review, this is the first time the Court has invalidated limits on donations to candidates. That is likely to invite new challenges to some old limits and create new hurdles for new ones. The Court’s totality-of-the-circumstances approach will surely create uncertainty. Lawmakers would be well-advised to adopt separate limits for primaries and general elections; to index any limits they adopt; to let volunteers incur expenses; and to set higher limits for party donations.

On the other hand, a substantial majority of the Court – including the two newest Justices — demonstrated a willingness to accept contribution limits. And the plurality opinion’s focus on the impact of campaign finance laws on electoral competition has the potential to change the nature of the campaign finance debate. Certainly, one positive effect of the plurality’s analysis is to remind reformers that campaign money is not itself an evil. As Justice Breyer notes, campaign money is necessary for competitive challenges and effective elections. The goal of reform should be to reduce the dependency on large donors, and to assure enough money for challengers rather than to drive money out of elections.