Despite splintered decision, Buckley tree still stands

Tuesday, June 27, 2006

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

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

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

    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.

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