Campaign-finance reformers watch ballot-measure case for clues

Thursday, October 15, 1998

Advocates of campaign finance reform are always looking for signs from the Supreme Court that it might be changing its mind about giving strong First Amendment protection to campaign spending.

It is the court’s 1976 decision in Buckley v. Valeo that articulated the view that campaign expenditures are a form of protected speech, a ruling that has been cited ever since as an obstacle to meaningful restrictions on campaign spending.

Well, the latest clue from the court came yesterday during oral arguments in another case named Buckley — this time Buckley v. American Constitutional Law Foundation. And the signal, from at least one justice, was this: Don’t look for the court to expand or step back from Buckley v. Valeo anytime soon.

At first glance, the new Buckley seems unrelated to the old one. The case argued yesterday involves a set of regulations enacted by Colorado to prevent abuses in the ballot-initiative process. The regulations, which require petition circulators to be registered Colorado voters, to wear ID badges, and to file financial reports with the state, were challenged on First Amendment grounds. The 10th U.S. Circuit Court of Appeals struck them down, and Colorado Secretary of State Victoria Buckley — the new Buckley — appealed the decision to the Supreme Court.

Through much of the hourlong oral argument, justice after justice expressed doubt that the Colorado law could ever be justified under the “strict scrutiny” standard that it uses to measure laws that restrict “core political speech.”

State Attorney General Gale Norton urged the court to adopt a more flexible standard, but asserted that the law would survive even under “strict scrutiny.” She said the regulations were needed to combat fraud in the initiative process.

But even accepting fraud prevention as a legitimate goal, justices wondered aloud how the various regulations would achieve the goal. Referring to the requirement that circulators be Colorado voters, Justice Antonin Scalia asked skeptically, “Do you think that Coloradans are more honest than non-Coloradans?

Norton, with helpful prompting from Chief Justice William Rehnquist, said it would be easier to track down circulators who are Colorado voters than those who are nonvoters if allegations of fraud arose about signatures they collected.

Norton at several points suggested that big money had entered the ballot-initiative scene, telling the justices that there were “bands of people who go state to state” to gather signatures for a fee. The Supreme Court in a 1988 decision struck down a ban on paid circulators, but Norton said the reporting requirements would at least tell the public how much the circulators were paid.

It was at this point, at least in the view of Justice Stephen Breyer, that the case appeared to veer into the realm of campaign finance reform and Buckley v. Valeo. The Colorado reporting requirements for ballot initiatives began to sound like some of the same campaign financing reports and regulations that the court upheld in the first Buckley case and subsequent rulings.

Perhaps sensing that his colleagues were likely to strike down the Colorado ballot-initiative regulations, Breyer spent several minutes during the oral arguments searching for a way to do that without also undercutting or extending the first Buckley decision. Breyer said he did not want to rule in the Colorado case and find out later that “I decided that (campaign finance reform) here.” In other words, he said, he feared that the court’s decision in the Colorado case would be invoked to strike down other campaign reform measures.

Neil O’Toole, the Denver lawyer who was arguing before the justices against the Colorado law, was diverted by questions from other justices before answering Breyer satisfactorily.

Breyer is a key vote on any campaign finance measure. He was the author of the middle-of-the-road 1996 decision in Colorado Republican Federal Campaign Committee v. FCC, which struck down federal restrictions on political party expenditures that are not coordinated with particular candidates. Other justices in concurring or dissenting rulings signaled readiness to retreat from Buckley v. Valeo. But Breyer’s ruling embraced the Buckley framework.

By the end of the hour of argument yesterday in the new Buckley case, it was still apparent that the court was likely to throw out Colorado’s ballot-initiative restrictions. But Breyer’s questioning showed that Buckley v. Valeo still overshadows the entire realm of laws affecting elections, and that the court does not yet seem ready to disturb that precedent in any significant way.