US Supreme Court Review : Randall v. Sorrell
Ellis & Winters
This article previously appeared in The Constitutionalist (Sept. 2006). It is reprinted with permission.
By Sarah K. Chasnovitz
The makeup of the Court has changed significantly since its last foray into the disputed coexistence of campaign finance laws and the First Amendment. In 2003, Justice O’Connor cast the deciding vote upholding the Bipartisan Campaign Reform Act, while Chief Justice Rehnquist wrote the dissent. By the time the Court heard oral arguments in Randall v. Sorrell, 126 S. Ct. 2479 (2006), Chief Justice Roberts and Justice Alito had become their successors. This change created much speculation that the Court would overturn or drastically revise Buckley v. Valeo, 424 U.S. 1 (1976), the Court’s seminal case on legislative attempts to regulate the financing of political campaigns.
Despite the fractured decision in Randall, the Court cobbled a plurality to strike down two major provisions in Vermont’s campaign finance statute, known as Act 64. For the first time, the Court invalidated contribution limits as unconstitutional infringements on the freedoms of speech and association. The Court also held that the Act’s spending limits violated the First Amendment’s protections for free speech.
Even though the Court did not overturn Buckley, six Justices (over the course of five opinions) signaled they would revise part or all of its holdings. Justices Thomas, Scalia, and Kennedy wrote that Buckley, instead of applying a lesser standard of review to contribution limits, should have invalidated both contribution and spending limits as direct restraints on speech. Justices Stevens, Souter, and Ginsberg would uphold Buckley in theory but would accept the state’s reasons for imposing spending limits as justifying direct restraints on speech. Interestingly, the two newest members of the Court both upheld Buckley on the grounds of stare decisis.
If the Court could have created the facts of the case in which it would invalidate contribution limits, it would have written Vermont’s Act 64. In almost all public offices–from statewide offices such as governor to local elections for state legislators– Act 64’s contribution limits were the lowest in the nation, both for individuals and political parties. The Act made no distinction between campaigns involving primaries or hotly contested races in the general election. Furthermore, it counted in the contribution limits expenses incurred by volunteers, such as mileage, coffee, and doughnuts. None of the limits allowed for adjustments due to inflation.
The plurality opinion, written by Justice Breyer and joined by Chief Justice Roberts and Justice Alito, along with concurrences from Justices Thomas, Scalia, and Kennedy, struck down Act 64’s contribution limits as incompatible with the First Amendment. The plurality followed Buckley’s reasoning, which upheld contribution limits that were “closely drawn” to address a “sufficiently important interest.” However, it did not reach the same result. The plurality did not dispute that Act 64’s impetus, to prevent corruption, was a sufficiently important interest. It did, however, find that the provisions were low enough and strict enough to generate suspicion that they were not closely drawn.
The plurality enumerated five factors to analyze whether a contribution limit is closely drawn.
First, the plurality examined whether “contribution limits are so low that they may pose a significant obstacle to candidates in competitive elections.”
Second, it scrutinized whether political parties are subject to the same limits as individuals, thereby reducing “the voice of political parties . . . to a whisper.” Third, it looked to whether the statute includes volunteer services in its definition of “contribution.” Fourth, it noted whether contribution limits are adjusted for inflation. Finally, the plurality looked to the record to determine if it showed a particularly egregious history of corruption to warrant lower contribution limits. In Randall, all the factors weighed against the constitutionality of Act 64’s contribution limits.
Justices Thomas and Scalia concurred, as did Justice Kennedy separately, because they would have gone further than the plurality and overruled Buckley as providing insufficient protection for the First Amendment. Justice Kennedy, like Justices Thomas and Scalia, expressed concern that the Court, as an unelected and non-expert body lacking an established body of law from which “to explain why $200 is too restrictive a limit while $1,500 is not,” is not competent to make this judgment. Referencing political action committees, Justice Kennedy wrote that the Court’s attempts to adjudicate these cases “may cause more problems than it solves.” Justice Thomas detailed the inconsistencies he found in the plurality’s reasoning, writing “[t]he illegitimacy of Buckley is further underscored by the continuing inability of the Court (and the plurality here) to apply Buckley in a coherent and principled fashion.”
Justice Souter dissented, joined by Justices Ginsberg and Stevens, writing that “[t]o place Vermont’s contribution limits beyond the constitutional pale is to forget . . . our own self-admonition against second-guessing legislative judgments about the risk of corruption to which contribution limits have to be fitted.” The dissenting Justices rejected the view that elections serve as a sufficient check against the corrupting influence of campaign fundraising, writing that “[t]hree 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.”
The plurality opinion and those of the dissenters analyzed spending limits separately from the contribution limits. The Act’s mandatory spending limits were not significant as much for their size as they were purely for their existence.
Buckley had struck down spending limits almost thirty years before, reasoning that a “restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” When the Vermont legislature passed Act 64 in 1997, it understood that its spending limits would serve as a direct challenge to the Court’s holding in Buckley. Buckley applied a stricter form of review to spending limits because they directly limit a candidate’s right to express her views, as opposed to contribution limits that still allow “symbolic” expression and other forms of speech. Buckley found that preventing corruption, or the appearance of it, was not significant enough to justify a direct restraint on speech.
Vermont’s Attorney General argued, successfully in the Second Circuit, that Buckley’s holding on spending limits had failed to consider as a substantial interest the time candidates are forced to spend fundraising in the inevitable arms race of modern-day campaigns. The Vermont Attorney General also argued that Buckley did not reject spending limits based on actual proof of any corrupting influence of large campaign contributions; it only rejected limits based on the assumption that money corrupts politics.
Even though the Vermont legislature held 65 hearings with 145 witnesses amassing proof of a link between campaign contributions and corruption, the Court did not accept either of the Vermont Attorney General’s arguments supporting its spending limits. The Justices used dueling automobile metaphors to illustrate their respective positions on Act 64’s spending limits. The plurality opinion (quoting Buckley) likened spending limits in political campaigns to “being free to drive an automobile as far and as often as one desires on a single tank of gasoline.” Justice Stevens dissented, reasoning that “[j]ust as a driver need not use a Hummer to reach her destination, so a candidate need not flood the airways with ceaseless sound-bites of trivial information in order to provide voters with reasons to support her.”
Justice Stevens stood alone in his opinion to uphold the spending limits based on the record before the court; the remaining dissenters (Justices Souter and Ginsberg) would have asked the District Court to determine whether the limits were the least restrictive means for limiting the corruption the hearings uncovered. Justices Thomas, Scalia, and Kennedy concurred with the plurality’s decision to invalidate the spending limits.
In the end, the post-Randall world looks much like the post-Buckley world. However, the lower courts now have one datum point marking where campaign contribution limits go too low.