United States: Supreme Court Strikes Down Vermont Campaign Finance Law In Randall v. Sorrell, Leaves Buckley v. Valeo Intact

(Part Three of a Four-Part Series on Government Ethics and Campaign Finance Matters)

In a split decision involving six different opinions, the U.S. Supreme Court recently struck down Vermont’s campaign finance statute while leaving the constitutional framework for campaign finance intact. A three-vote plurality, joined by three other justices in two concurring opinions, ruled that Vermont’s limits on both campaign expenditures and campaign contributions violated speech and association protections of the First Amendment. Only two of the six justices, however—Justices Thomas and Scalia—explicitly called for overturning the landmark 1976 case Buckley v. Valeo, which ruled campaign-expenditure limits to be unconstitutional but permitted campaign-contribution limits. Neither of President Bush’s recent appointments to the Court, Chief Justice Roberts nor Associate Justice Alito, engaged in a reexamination of Buckley, which is often criticized in conservative legal circles for its permissiveness toward campaign-contribution limits.

The Randall v. Sorrell opinion provides three insights about how the new Supreme Court is likely to approach campaign finance reform laws that are challenged on First Amendment grounds. First, with only three votes willing to reexamine an application of Buckley’s restriction on campaign-expenditure limits, the Court will not likely permit campaign-spending limits in the near future. Second, a statute that would cap political contribution limits to $400 or less, especially when political parties are held to the same standard as individuals, is likely to be found unconstitutional. Third, Buckley, and its general allowances for campaign-contribution limits, is not likely to be overturned in the near future, leaving the campaign-finance landscape relatively unchanged despite President Bush’s recent appointments to the Supreme Court.

Ultimately, the fundamental constitutional framework that prohibits campaign-expenditure limits but allows for campaign-contribution limits is likely to survive President Bush’s recent appointments to the Supreme Court.

At the heart of Randall v. Sorrell was Vermont’s 1997 Public Act No. 64, ("Act 64") which set staggered limits on what candidates for Vermont public office could spend on their campaigns and on what supporters could contribute to those campaigns. For example, under Act 64, candidates newly running for governor could not spend more than $300,000, biennially adjusted for inflation, over the course of primary and general election cycles for a gubernatorial election. Incumbent candidates were limited to spending 85 percent of that figure. Contributors, including political parties, were limited to giving no more than $400 to gubernatorial candidates, $300 to state senate candidates, and $200 to state representative candidates. Costs associated with volunteer activities counted toward these contribution limits. Unlike expenditure limits, the contribution limits did not have an inflation-adjustment mechanism.

Justice Breyer, joined entirely by Chief Justice Roberts and partly by Justice Alito, found that the Buckley precedent prohibited both Vermont’s expenditure limits and contribution limits.

In overturning Act 64’s expenditure limits, Justice Breyer ruled that Buckley touched on the connection between expenditure limits and a reduction in fundraising time. Therefore, a constitutional justification for limiting expenditures for the purpose of reducing the amount of time state officials must spend on fundraising, as argued by Vermont, was an issue that did not require further action.

With regard to contribution limits, Justice Breyer ruled that the limits were too low to be closely drawn to focusing on corruption or the appearance of corruption. Justice Breyer laid out five reasons why Vermont’s contribution limits violated the First Amendment:

Essentially, Act 64’s contribution limits were struck down as a matter of degree rather than because of a fundamental shift away from the law laid out in Buckley. According to Justice Breyer, "[M]any, though not all, campaign finance regulations impose certain of these burdens to some degree… [however, Act 64] disproportionately burdens numerous First Amendment interests, and consequently, in our view violates the First Amendment."

Although agreeing with most of Justice Breyer’s opinion, Justice Alito found no reason to discuss the continued validity of Buckley, one way or another. He stated that the proponents of Act 64 failed to make an argument for why the principles of precedent should not maintain Buckley’s holding on expenditure limits. Therefore, the proposition to overturn Buckley’s restrictions on campaign expenditures should have been ignored rather than denied.

Justice Kennedy concurred with the plurality in finding that Act 64’s contribution and expenditure limits both violated the First Amendment. However, he expressed frustration with the judiciary’s required parsing between permissible contribution limits and unconstitutional contribution limits. According to Justice Kennedy, the Court’s "own experience gives little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance."

Joined by Justice Scalia and continuing to hold that Buckley erred in allowing for campaign-contribution restrictions, Justice Thomas restated from his previous opinions in similar cases that contribution limits unjustly deny the right to political expression and association in the same way as expenditure limits. He concluded, "Buckley provides no consistent protection to the core of the First Amendment and must be overruled."

Justice Stevens agreed with Justice Thomas that Buckley should be overruled. However, the two agreed on virtually nothing else. According to Justice Stevens, Buckley’s prohibitions on campaign expenditure limits were incorrectly decided, and both campaign-contribution limits as well as campaign-expenditure limits should be permitted under the First Amendment. According to Justice Stevens, the plurality failed to discuss whether the "pernicious effects of endless fundraising" can be a compelling state interest justifying expenditure limits.

Justice Souter’s dissent, in which Justice Ginsburg joined, charged that Act 64 could be allowed under Buckley and did not call for changes to Buckley. He stated that the case should have been remanded to trial for further inquiry as to the propriety of the expenditure limits, and that the Buckley precedent should have been read to allow Act 64’s contribution limits.

Campaign finance reform measures, such as Act 64, often draw the ire of both left- and right-wing commentators. In 2003, the American Civil Liberties Union and the Christian Coalition—two groups that do not often see eye-to-eye—were united in their opposition to the McCain-Feingold-Shays-Meehan Bipartisan Campaign Reform Act (often referred to simply as "McCain-Feingold") because of its restrictions on "soft money" and "issue ads." However, in legal circles, criticism of campaign finance reform tends to be louder from the right than it is from the left. After the Randall v. Sorrell opinion was issued, conservative commentator George Will called for "overturning Buckley, allowing people to give, and candidates to spend, what they like, and allowing voters to sort things out." On the other hand, Joan Claybrook, director of the Ralph Nader-founded Public Citizen group, responded to the decision by stating, "There is far too much money being spent on campaigns. Citizens should be able to set reasonable limits for politicians…. Though the decision is not what we hoped, it does no harm to existing principles [found in Buckley]."

During their Senate Judiciary Committee confirmation hearings in 2005, then-Judges Roberts and Alito emphasized to Democratic senators their respect for judicial precedent. Of course, the big-ticket item that inspired these comments was a desire by the senators to know how the judges would rule on possibly overturning Roe v. Wade and its protections for abortion rights. However, with regard to campaign finance reform and its restrictions on political speech, Justices Roberts and Alito held true to their word in respecting precedent by declining a reexamination of Buckley. At best, Justice Alito made it clear that he would only overturn a precedent like Buckley if one of the parties made a good argument as to why precedent should not prevail—he would not simply do it himself. Therefore, it is unlikely that the new Supreme Court will dramatically change the basic constitutional framework for campaign finance in the coming years.

The Supreme Court concluded that Vermont’s contribution limits were unconstitutionally strict, but other contribution limits—those in federal law upheld in Buckley, for example—remain permissible. For the 2006 federal election cycle, individuals are limited to making contributions of no more than $2,100 to individual candidates for federal office and no more than $26,700 to national political-party committees. Political action committees that have at least 50 donors and contribute to at least five candidates for federal office are limited to making contributions of no more than $5,000 to individual candidates for federal office, and no more than $15,000 to national political-party committees.

This article is presented for informational purposes only and is not intended to constitute legal advice.