Rick Pildes has these (now slightly revised) thoughts on today’s decision:
The most significant fact about today’s decision is the set of reasons the Court gives for holding unconstitutional Vermont’s contribution limits. Before today, the Court had never held any such limit on contributions to campaigns to be unconstitutional. Today, the Court concludes that limits which are too low cause a constitutional injury to an appropriately competitive, accountable, and fair democratic electoral process. In the Court’s judgment, contribution limits that are too low threaten to give incumbents a structural advantage over challengers. These limits “implicate the integrity of the electoral process;” they “harm the electoral process by preventing challengers from mounting effective campaigns;” they reduce “democratic accountability: they are obstacles to “electoral fairness;” and, in conclusion, “the constitutional risks to the democratic electoral process become too great.” These are broad principles, which potential implications not just for campaign finance regulation, but other areas in which constitutional law and the structure of democratic elections come together.
Here is the key point: the Court in this decision makes as clear as it has in any constitutional decision involving democratic institutions that the Court views itself as having an essential role to play in preserving the structural integrity of the democratic process. None of the harms noted above involve individual First Amendment rights in any conventional sense. That is, the reason Vermont’s contribution limits are too low is not because an individual has a First Amendment personal right to contribute more than $200 to a candidate for state representative (the Vermont cap) but no First Amendment right to contribute a higher amount that the Court would find constitutional, such as $500 to the same candidate. This is precisely the point at which Justice Thomas’ dissent, joined by Justice Scalia, press at the foundation of the Court’s decision: the central principle of Justice Thomas’ dissent is that, either individuals do have First Amendment rights to contribute, in which case no limits on contributions should be constitutional, or they do not, in which case the Court’s opinion cannot be justified. Justice Thomas endorses the former view.
Instead, today’s decision rejects the view that individuals have a general First Amendment right to make unlimited campaign contributions, just as the Court has rejected that view in the past. But at the same time, the decision holds that, at some point, limits that are too low threaten the election process itself. That is, the decision rests on the principle that there is a risk that those who currently hold office — current legislators — can regulate elections in a way that insulates themselves improperly form competition and that undermines the integrity and accountability that should be central to democracy and democratic elections. Most importantly, constitutional law and the Supreme Court must play a role in responding to that risk, according to the principles of the Vermont decision.
Justice Breyer has long been drawn to exactly such a view, as I have noted in earlier articles. The principles on which this decision rests could have implications for many other issues concerning the Court’s oversight, through constitutional law, of democratic politics. Consider gerrymandering, most obviously: gerrymandering can be viewed as creating many of the same kinds of harms — involving incumbent protection, threats to democratic accountability and to the integrity of elections — and might similarly not be thought to involve harms to conventional individual rights. The principles of today’s Vermont case might well imply that courts have an essential role, nonetheless, in protecting the democratic system against various structural harms insiders are capable of causing to it. For that reason, the Vermont case is an intriguing and surprisingly important decision, with potentially broad implications throughout the law of democracy.
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