Alito to have 1 shot at influencing First Amendment this term

Monday, February 13, 2006

Editor's note: The Supreme Court announced Feb. 17 that it would again hear arguments in the free-speech case of a whistleblower, apparently so that Justice Samuel Alito can break a tie. That case is Garcetti v. Ceballos.

WASHINGTON — New Supreme Court Justice Samuel Alito Jr. was sworn in Jan. 31, giving him five months to serve during the Court’s current term. But during that period, Alito will likely have only one chance to show his First Amendment stripes.

That chance will be in an important one, and it begins Feb. 28, when the Court hears a trio of First Amendment challenges to Vermont’s severe restrictions on campaign contributions and expenditures. The cases are Randall v. Sorrell,
Sorrell v. Randall and Vermont Republican State Committee v. Sorrell. Alito’s vote on the consolidated cases could be crucial.

Another First Amendment case, Beard v. Banks, will be argued a month later, but Alito is likely to stand up and walk out when the case is called. The reason? Alito wrote a dissent in the case, which involves restrictions on inmates’ ability to receive newspapers and magazines in prison, when he served on the 3rd U.S. Circuit Court of Appeals. By Court tradition, justices sit out cases in which they ruled at earlier stages. They also generally do not take part in cases that were argued before they joined the high court.

But in the Vermont cases, Alito’s participation could make all the difference, because he replaced Sandra Day O’Connor, a swing vote who generally upheld campaign-finance restrictions. In the landmark ruling McConnell v. Federal Election Commission in 2003, O’Connor cast the key vote in favor of limits on soft money and issue advertising contained in the McCain-Feingold campaign-finance law.

“We do not know anything specific about Justice Alito's views in this area,” says Rick Hasen, professor at Loyola Law School in Los Angeles. “But if he tends to vote on First Amendment issues with Justices (Antonin) Scalia and (Clarence) Thomas on this issue, a shift in the Court's jurisprudence in this area would be dramatic.” Scalia and Thomas tend to view restrictions on campaign finance as violative of the First Amendment free-speech rights of candidates, political parties and donors. The late Chief Justice William Rehnquist also objected to several parts of the McCain-Feingold law, and his successor John Roberts may follow his lead.

During his 15 years on the 3rd Circuit, it appears Alito did not rule in any major campaign cases. In a 1994 ruling Rappa v. New Castle County, he joined the majority in striking down parts of a Delaware law that had the effect of outlawing political signs near roadways. But neither Alito’s concurrence nor the majority opinion contained language on the importance of campaign speech.

The Vermont cases ask the high court to revisit the main tenets of Buckley v. Valeo, the 1976 decision that struck down spending limits for candidates but upheld limits on campaign donations.

Vermont’s law, supported by then-Gov. Howard Dean, imposed sharp limits on both expenditures and contributions. Candidates for state representative can spend up to $2,000 under the law, while candidates for governor can spend up to $300,000. Incumbents are limited even more. The law was challenged by the state Republican Party as well as by the American Civil Liberties Union.

Vermont Attorney General William Sorrell argues that the years since Buckley have proven that “contribution limitations alone are insufficient to curb corruption and its appearance.” The state is asking the high court to uphold the spending limits in spite of Buckley.

The 2nd Circuit upheld both the contribution and expenditure limits, but then amended its ruling to send the case back to lower courts to determine whether the expenditure limits were “narrowly tailored” enough to survive First Amendment scrutiny. The appeals court found that the state was justified in imposing expenditure limits as a way to prevent corruption and to save candidates from having to spend too much time fundraising.

James Bopp, lawyer for the state Republicans, says the law effectively muzzles candidates once they have reached their expenditure limit. “Candidates are even prohibited from driving their family car to a town square to speak once the limit has been met,” Bopp says in a brief. “Vermont has relegated candidates to bit players in their own elections.” That argument could appeal to Alito if he views the importance of political speech in the same way as Scalia and Thomas.

One sign that campaign-reform advocates are worried about the outcome in the Vermont case is that their main brief urges the Court not to rule at all on the expenditure-limit issue. Instead, the brief for Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., asks the Court to wait for the determination of the lower court on the question of whether the spending limits are narrowly tailored.

“Those further proceedings may [terminate] the need for this Court to engage in constitutional adjudication, which should not be embarked upon unnecessarily or prematurely,” wrote former solicitor general Seth Waxman in a brief for the senators. “If the issue ultimately returns to this Court, the Court will have the considerable benefit of further lower court findings and analysis to inform its decision.”

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