Supreme Court Muddies Campaign Finance Waters

Yesterday's Supreme Court "decision" in Randall v. Sorrell, the Vermont campaign finance case is one of those collections of concurrences, dissents and opinions that come along every year at the end of the term, the kind that must drive reporters who cover the Court up the wall.

There were six separate opinions in this case: Justice Breyer announced the Court's judgment with an opinion joined by Chief Justice Roberts and partly by Alito; Alito wrote his own opinion "concurring in part and concurring in the judgment"; Kennedy had his own simply concurring in the judgment, with Scalia and Thomas sharing another. Justice Stevens wrote a dissenting opinion, as did Souter, who was joined by Ginsburg and (only partly) by Stevens. Confused yet?

Breyer, Roberts and Alito (combined with Scalia, Thomas, and Kennedy) held that spending limits placed on candidates by Vermont law were unconstitutional infringements on free speech, sticking with the formula first laid out in 1976's Buckley v. Valeo. On the contribution limits side, the three-member plurality argued that the low limits enacted by Vermont are too low. As Linda Greenhouse writes in her excellent recap of the case today, "Justice Breyer's opinion was so nuanced, applying a two-part test to the decision of how low is too low, with five factors making up the second part of the inquiry, as to leave the court's next move uncertain."

Breyer and Roberts alone (Alito having left their opinion for this part) argued that the stare decisis principle controlled their thinking on the approach to Buckley. Breyer:

"Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional, and requires "special justification." This is especially true where, as here, the principle has become settled through iteration and reiteration over a long period of time. We can find here no such special justification that would require us to overrule Buckley. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles." Interesting, that (i.e. just substitute Roe for Buckley) ... and possibly quite telling that Roberts would sign on and Alito decline to do so.

Justice Kennedy's opinion concurring in the judgment makes clear his uneasiness with how for the Court has waded into the morass of campaign finance regulation: "The universe of campaign finance regulation is one this Court has in part created and in part permitted by its course of decisions. That new order may cause more problems than it solves. On a routine, operational level the present system requires us to explain why $200 is too restrictive a limit while $1,500 is not. Our own experience gives us little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance."

Justices Scalia and Thomas would overrule Buckley and throw out all restrictions on contributions and spending as unconstitutional: "I continue to believe that Buckley provides insufficient protection to political speech, the core of the First Amendment. The 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. As a result, stare decisis should pose no bar to overruling Buckley and replacing it with a standard faithful to the First Amendment."

On the other side, Justices Souter and Ginsburg (joined partly by Stevens) would have upheld the contribution limits as not being too low, and they would have remanded the question of expenditure limits for more examination (centering on the question of how much time candidates must spend fundraising). "... the constitutionality of the expenditure limits was not conclusively decided by the Second Circuit, and I believe the evidentiary work that remained to be done would have raised the prospect for a sound answer to that question, whatever the answer might have been. Instead, we are left with an unresolved question of narrow tailoring and with consequent doubt about the justifiability of the spending limits as necessary and appropriate correctives. This is not the record on which to foreclose the ability of a State to remedy the impact of the money chase on the democratic process."

And finally, Justice Stevens' dissent is the mirror opposite of that offered by Scalia and Thomas. He would overrule Buckley in order to allow expenditure limits as well as contribution limits. This draws on Stevens' long-held view that money happens to be property, and does not necessarily equal "speech" under the First Amendment. This is a view with which I am, in principle, inclined to agree - but of course it depends on the specifics. Stevens gets in the best jabs about the Court's decision in this case, which he calls "today's cacophony" (not at all off the mark, clearly). Most interestingly, it is Stevens, not Scalia/Thomas, who cites the Framers in his opinion, attempting that dangerous divination act of "what would they do?"

"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. I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress' authority. 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."

This is, for sure, only the first of many muddled campaign finance cases from this new Court. Without a sharp controlling authority, there will be countless cases coming down the pike in which the Court will be asked to determine "how low is too low?" when it comes to contribution limits, and you can be sure that they'll also be asked to revisit the question of just what it would take to justify limiting expenditures. "Today's cacophony", given the wide range of views on display here, seems unlikely to quiet anytime soon.