Supreme Court upholds Missouri’s campaign-contribution limits

Monday, January 24, 2000

Advocates of campaign-finance reform are celebrating the Supreme Court’s 6-3 decision today upholding Missouri’s limits on campaign contributions. The ruling, they say, could clear the way for limits lower than the $1,000 federal cap.

After years of doubt over the current court’s views on campaign finance reform and the First Amendment, the ruling in Nixon v. Shrink Missouri Government PAC underlines the court’s support for limits on contributions as a way to prevent corruption in government. And the justices agreed that the 1976 ruling in Buckley v. Valeo did not require states to come up with extensive “empirical evidence” of actual corruption to justify limiting contributions.

“There is little reason to doubt that sometimes large campaign contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters,” wrote Justice David Souter for the majority.

“The court’s opinion is a victory for democracy,” President Clinton said in a statement. “Today’s decision sets the stage for further reform.”

In a concurring opinion, Justice John Paul Stevens reiterated the view in Buckley that limits on contributions to candidates are less constitutionally suspect than direct limits on speech. “Money is property; it is not speech. … The right to use one’s money to hire gladiators, or to fund ‘speech by proxy,’ certainly merits significant constitutional protection,” Stevens wrote. “These property rights, however, are not entitled to the same protection as the right to say what one pleases.”

That somewhat relaxed view of the hurdles states must overcome to pass campaign contribution limits will “give states a real boost of confidence that their limits will be upheld,” says Deborah Goldberg of the Brennan Center for Justice, which has argued in favor of limiting both contributions and spending. “This strengthens the side of Buckley that upholds contribution limits.”

Goldberg also pointed to the fact that the majority included Chief Justice William Rehnquist and Justice Sandra Day O’Connor, who had shown some signs of wavering on Buckley in recent decisions.

“Today’s opinion stops the backsliding that lower courts have done over the past 10 years and returns us to where we were with the Buckley v. Valeo decision,” said Derek Gressman of U.S. Public Interest Research Group.

Souter’s opinion could be used to justify contribution limits even lower than the $1,000 limit embodied in federal law and the $1,075 in the Missouri law under challenge. He said there was no evidence that the Missouri limit created a “system of suppressed political advocacy.” In examining future limits, Souter said the test should be “whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.”

Bobby Burchfield, lawyer for Sen. Mitch McConnell, R-Ky., said Souter’s formulation won’t help lower courts decide “what factors can be used in deciding what level is acceptable.” Burchfield, who wrote a brief against the limits for McConnell, said the ruling “doesn’t change the landscape much.”

Certainly today’s decision does not disturb the other half of Buckley — the court’s judgment that while limits on contributions to candidates are okay, limits on spending by candidates violate their free-speech rights. A concurrence by Justice Stephen Breyer and joined by Justice Ruth Bader Ginsburg suggests that Buckley leaves legislators “broad authority” to regulate soft money and enact other reforms such as reduced-price time for candidates on broadcast media. He also said post-Buckley experiences might call for a reconsideration of Buckley, at least insofar as “making less absolute the contribution/expenditure line.”

But dissents in the case make it clear that a solid bloc of three justices — Anthony Kennedy, Clarence Thomas and Antonin Scalia — still see significant threats to the First Amendment in current limits on campaign money.

In a strongly worded dissent, Kennedy said the majority was “almost indifferent” to the consequences of the decision on “the speech upon which democracy depends.” He adds that “Buckley has not worked,” citing the growing use of “soft money,” which is unregulated because it does not go directly to candidates. “The Court has forced a substantial amount of speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits.” He called Buckley a “halfway house” that ought to be eliminated.

But Kennedy, while urging that Buckley be overruled, stopped short of saying that all forms of campaign money limits would be unconstitutional. He said he would invite Congress to devise a new system that takes First Amendment concerns into account.

Thomas went further, however, in a dissent joined by Scalia. By embracing the Buckley framework, the majority has managed again to “balance away First Amendment freedoms,” Thomas wrote. He urged the use of “strict scrutiny” to evaluate the Missouri law, a standard under which the state limits would be “patently unconstitutional,” as would any other limit on spending or contributions. Thomas asserted that “contributions to political campaigns generate essential political speech” and, as such, cannot be limited.

Bribery laws are adequate to attack the evil legislators are trying to end with campaign-finance laws, Thomas says. “States are free to enact laws that directly punish those engaged in corruption, but they are not free to enact generalized laws that suppress a tremendous amount of speech along with the targeted corruption,” wrote Thomas.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.