Chance for campaign finance reform now rests with Congress

Monday, November 16, 1998

Without speaking a single word on the subject, the Supreme Court on Monday took actions that may guarantee that the next presidential election, in the year 2000, will be conducted under the same campaign finance rules that inundated the last election with cash.

Justices declined to consider two cases — one from Cincinnati, the other from Arkansas — which could have been vehicles for the court to re-examine its doctrine on campaign spending restrictions.

That doctrine, embodied in the court’s 1976 ruling Buckley v. Valeo, has been viewed as a major obstacle to reform, because it gives First Amendment protection to campaign spending as a form of speech that cannot easily be regulated.

In a series of cases over the last several years, reform advocates have tried to get the court to reverse itself in light of the campaign abuses and high costs the Buckley decision unleashed.

With Monday’s rejection of the two cases, the court may have been signaling that it still sees no burning need to re-examine Buckley. And with no other major campaign cases on the court’s horizon, it appears unlikely that the justices, even if they have a change of heart, will have occasion to change their doctrine in time to affect the presidential election of 2000.

“After what the court did today, it’s more likely than not that we will have the same constitutional ground rules in 2000 that we’ve had for years,” said Burt Neuborne of the Brennan Center for Justice, which is seeking the overturn of Buckley. “I don’t see an obvious case in the pipeline that would reach the court before the 2000 election.”

The only chance for reform now, says Neuborne, lies with Congress, which perennially bogs down when it discusses the campaign reform issue. Several members of Congress have cited the court’s doctrine in opposing reform, arguing that severe restrictions on campaign spending would violate the First Amendment.

“The ball is now back in Congress’s court,” says Neuborne.

Even if Congress were to act quickly in next year’s session, however, whatever reform it enacted would in turn be subject to constitutional challenge and would eventually end up before the Supreme Court — but likely no sooner than a year from now. At that point, with campaigns already gearing up, a decision from the court might be too late to change much.

How the court would rule on a new law enacted by Congress is far from certain. The justices appear to be divided into three camps: David Souter, Stephen Breyer and Sandra Day O’Connor, who are generally committed to the Buckley decision; William Rehnquist, Clarence Thomas, Anthony Kennedy and Antonin Scalia, who appear to want no regulation at all; and John Paul Stevens and Ruth Bader Ginsburg, who are willing to embrace substantially more regulation than the Buckley decision allows.

Under the court’s traditional rules, the vote of four justices is needed to take a case and place it on the docket. With the court so divided on this issue, members of each faction may have decided not to take the Cincinnati and Arkansas cases, fearful of the outcome.

In Cincinnati v. Kruse, the Ohio city was hoping to revive an ordinance that had capped spending on city council elections at $140,000. The limit was justified as a way to end the “corrosive effects” of unlimited campaign spending, but lower courts did not agree and struck it down, citing Buckley. Cincinnati was joined by 26 states in seeking Supreme Court review.

In the Arkansas case, Citizens for Clean Government v. Russell, a 1996 reform measure approved by voters placed a $300 limit on individual contributions to candidates for statewide office. An appeals court struck down the law, asserting that the limits were so low that the freedom of speech of individuals who wanted to contribute to candidates would be violated.