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Despite splintered decision, Buckley tree still stands

By Tony Mauro
First Amendment Center legal correspondent
06.27.06

WASHINGTON— The 30-year-old landmark Supreme Court decision in Buckley v. Valeo has been described as “the tree in the middle of the ball field” that everyone in the campaign-reform ballgame must deal with or work around.

Its bottom-line approval for limits on campaign contributions and prohibition of limits on campaign spending have been obstacles for those on both sides of the debate who want either more regulation of campaign money, or a lot less.

In recent years, the biggest threat to the Buckley tree appeared to be coming from right field, where Justices Clarence Thomas and Antonin Scalia were eager to clear-cut it altogether. They view almost all modern campaign-finance laws as violations of the First Amendment.

But Thomas and Scalia needed more allies to make a majority, and yesterday they found none. The Supreme Court issued Randall v. Sorrell, which could have triggered a complete reappraisal of Buckley but instead resulted in a reaffirmation of its holdings. The tree stands.

Yesterday’s ruling, which struck down Vermont’s sharp limitations on both contributions and spending, was a fractured mess; six of the nine justices wrote opinions in the case, and dissenting justice John Paul Stevens referred to the ruling as “today’s cacophony.”

But it “does not alter the longstanding constitutional framework established in Buckley v. Valeo,” said Democracy 21 President Fred Wertheimer, adding, “Numerous campaign-finance laws have been upheld as constitutional under this framework over the past 30 years.”

Several other conclusions emerged:

  • The Court’s newest members, Chief Justice John Roberts and Samuel Alito, pointedly did not join the Thomas and Scalia wrecking crew. Roberts, who seemed generally skeptical of campaign regulations during oral argument in February, signed on to Justice Stephen Breyer’s main opinion, which was a warm embrace of Buckley. Alito, for his part, diverged from Breyer slightly, arguing that the Court did not need to reexamine Buckley to resolve the issue at hand. That could be an invitation to future Buckley challenges, but Alito was not ready to take on that battle yesterday. Neither Alito nor Roberts joined a concurrence by Justice Anthony Kennedy that expressed general skepticism about the Court’s campaign jurisprudence. And neither new justice objected to at least some limitations on campaign contributions.

    Election law expert Rick Hasen, a professor at Loyola Law School, said yesterday that Roberts may have been “voting strategically” to position himself as a moderate before moving toward the Thomas-Scalia position in future cases.

  • Limits on campaign expenditures are unlikely to find majority support from the Court anytime soon. In Buckley, the Court said limiting what a candidate can spend has a direct impact on his or her free-speech rights. Thirty years later, only three justices — Stevens, David Souter, and Ruth Bader Ginsburg — are willing to disturb that doctrine. Campaign reformers were disappointed. “The decision marks a lost opportunity to end the arms race for campaign cash and make elections a contest of ideas rather than dollars,” said Stuart Comstock-Gray of the National Voting Rights Institute, which supported the Vermont law. Stevens seemed to agree, asserting that William Jennings Bryan, Abraham Lincoln and John Kennedy did not spend a dime to make memorable and effective campaign statements.

  • Even limits on campaign contributions have their limits. While embracing the Buckley holding on campaign contributions, the Court agreed with Breyer: “We must recognize the existence of some lower bound.” Vermont’s contribution maximums of $200 in some cases, which apply to both individuals and parties, are “too restrictive,” Breyer said, and limit the ability of candidates and parties to mount effective campaigns. This determination is likely to slow reform efforts that include contribution limits that are substantially lower than existing ones — though yesterday's ruling leaves room for further litigation.

    “Battles will rage across the country over the constitutionality of particular contribution-limit laws,” says Hasen. Still, this section of the ruling was heartening to the American Civil Liberties Union, which opposes speech-limiting campaign-reform measures. “Contributions limits cannot be set so low that they prevent candidates from getting their message to the voters," said ACLU legal director Steven Shapiro. “Vermont’s law had less to do with preventing corruption than suppressing speech.”

  • The Court affirmed its central role in ensuring that the democratic process functions. In some politically charged cases — such as those challenging political gerrymandering — the Court has withdrawn from battle, preferring to let elected branches make the decisions. But Breyer made it clear, in striking down Vermont’s low contribution limits, that the Court would intervene whenever “the constitutional risks to the democratic electoral process become too great.” New York University School of Law professor Richard Pildes said yesterday, “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.”

    As such, according to Ohio State University law professor Edward Foley, Randall v. Sorrell eclipses in importance the massive McConnell v. Federal Election Commission decision of 2003 that upheld the Bipartisan Campaign Reform Act. “Randall v. Sorrell now becomes the second most important case in Supreme Court election-law jurisprudence” behind Buckley, Foley said.


Related

High court rejects Vt. campaign-finance limits

Majority faults state legislators for 'constraining speech' by telling candidates, voters how much campaigning is enough. 06.26.06

Vt. law's critics hail, supporters lament high court ruling

Sampling of reaction quotes from both sides of campaign-finance issues in Randall v. Sorrell. 06.27.06

Vt. governor vetoes campaign-finance bill

Gov. Jim Douglas says he opposed provision limiting amounts political parties can donate to campaigns; House speaker calls move 'outrageous,' vows override attempt. 04.08.08

Vt. lawmakers fail to override campaign-finance veto
For second year in row, state House falls one vote shy of two-thirds majority needed to resurrect bill that would have set new limits on political contributions. 04.28.08

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Five contributors sued after gubernatorial candidate Anthony Pollina was accused of violating law by accepting gifts larger than $1,000 from several supporters. 10.17.08

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First Amendment eludes spotlight this term
By Tony Mauro When issue took center stage, court-watchers found rulings ‘a mixed bag.’ 07.06.06

Conservative justices carry free-speech banner in Randall
By Douglas Lee In campaign-finance case, Clarence Thomas again makes powerful First Amendment argument but fails to topple Buckley. 07.11.06

2005-06 Supreme Court case tracker

Campaign finance overview


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