High court leans toward rejecting Vt. campaign-finance law

Wednesday, March 1, 2006

WASHINGTON — At one point during oral arguments on Vermont’s campaign-finance law yesterday, Supreme Court Justice Antonin Scalia shook his head mournfully.

“To the extent that Vermont’s politicians can be bought off by $51,” he told Vermont Attorney General William Sorrell, “It’s very sad.”

Sorrell was momentarily confused, because the law he was defending limits campaign donations to as little as $200 in some races, but not as low as $50.

Justice Stephen Breyer jumped in to explain. “He sometimes thinks in the past,” Breyer said of Scalia, adding that Scalia had translated $200 backwards into the value they would have had in 1976, when the Court endorsed higher donation limits in Buckley
v. Valeo.

It was a light moment, but one that symbolized that most of the high court yesterday was in fact thinking in the past, clinging to its Buckley precedent — and, it appears certain, rejecting Vermont’s severe campaign-finance law on First Amendment grounds.

The much-maligned Buckley precedent said contribution limits on individuals were constitutional, but that limits on candidates’ spending were not because they had the direct effect of limiting the core political speech of candidates. Vermont’s 1997 law tests both halves of the Buckley precedent by imposing expenditure limits on candidates as well as donation limits that were sharply lower than those allowed in Buckley. Candidates for some state offices are limited to spending as little as $2,000 for their entire campaigns.

Three challenges to the law — Randall
v. Sorrell,
v. Randall
and Vermont
Republican State Committee v. Sorrell
— were brought by groups ranging from the American Civil Liberties Union to the state Republican Party, and were consolidated under the name Randall v. Sorrell.

“Vermont is very likely to lose on both the spending and contribution limits,” said Ohio State University election law expert Edward Foley, who attended the arguments.

Even the justices who normally endorse campaign limits, like Stephen Breyer and David Souter, seemed skeptical of one or both facets of the law. Breyer suggested the spending limits were “way too low” and gave incumbents — who already have name recognition among voters — a big advantage over challengers. Souter suggested that candidates who had to survive a primary election would be “broke” by the time they had to start campaigning in a general election.

James Bopp Jr., arguing for the challengers to the law, started out strong, arguing that the expenditure limits in Vermont “make candidates a bit player in their own elections” by severely restricting their ability to campaign. “We’re talking about speech that is at the core of the First Amendment.”

Bopp said that incumbents would always look to the next election and tailor their votes with that in mind. If that fact of life amounts to corruption that justifies the kind of restrictions Vermont enacted, Bopp said, then by extension, Vermont could abolish elections altogether.

The only time Bopp ran into trouble came on the question of whether the case should be sent back to lower courts. The 2nd U.S. Circuit Court of Appeals, in ruling on the Vermont law, had ordered the district court to further examine the expenditure limits. Instead of waiting for that review, challengers took the case to the Supreme Court, which agreed to take up the case. Justice Ruth Bader Ginsburg seemed interested in sending the case back, thereby avoiding a ruling on the limits. Bopp, however, seemed to convince the justices that there was no reason to delay a decision on the law.

But Vermont’s beleaguered attorney general faced the toughest questioning. Sorrell pointed out that campaigns can be inexpensive in Vermont, where there are as few as 4,000 citizens per district and most candidates conduct their campaigns “primarily door to door.”

He also pointed out that Vermont does not limit independent expenditures by groups that want to communicate with voters but do not coordinate their messages with candidates. Asked if a candidate could afford to organize a campaign rally with coffee and doughnuts for attendees, Sorrell joked, “Our coffee is not that expensive” in Vermont.

Chief Justice John Roberts pressed Sorrell to give examples of the corruption in Vermont that the law seeks to combat. Sorrell cited testimony at state hearings indicating that legislators shaped their votes in accordance with the wishes of big campaign donors.

Roberts then said the state’s brief should have said that legislators’ views were “influenced” by contributions, not that they were “determined” by contributions. “Would you describe your state as a clean state or a corrupt state?” Roberts continued.

“We have a problem,” Sorrell said, but then Roberts repeated a point he had made earlier, suggesting his preferred remedy for the state’s problem: if Vermont voters “think someone has been bought, they don’t vote for him,” Roberts said.

Justice Anthony Kennedy made the same point, and he too saw the campaign-spending limits as too low. “In many campaigns, issues take shape during a campaign,” he said. With such severe spending limits, Kennedy added, “I don’t see any capacity for adjusting” strategies in mid-campaign, because candidates would run out of money.

The court’s newest justice, Samuel Alito, was largely silent, inquiring only whether candidates in Vermont could live with the contribution limits if the expenditure limits did not survive. Yes, replied Brenda Wright of the National Voting Rights Institute, who also argued in defense of the Vermont law. Responding to the point made by Roberts and Kennedy that voters could simply vote out of office those candidates who are seen as too beholden to campaign donors, Wright said that “by the very nature of the problem,” those relationships are often not known until after an election, if ever. She said Vermont’s law “will encourage more competitive elections.”

Sorrell made a pitch for the “core constitutional interests” that motivated passage of the law, namely preventing corruption and saving officeholders from having to spend all their time fundraising. And he invoked a statement by the late Justice Louis Brandeis that there is room in the American political system “for a courageous state.” But the justices, it appeared, found Vermont to be too courageous.

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