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Supreme Court Decision Update - Randall v. Sorrell

supreme2.jpgIn Randall v. Sorrell (PDF of the opinion here), the Supremes look at a Vermont statute limiting campaign financing and determine that it is unconstitutional.

QuizLaw Analysis: With six separate opinions and no majority decision, the only thing we really take away from this case is that the Supremes declined to offer any help in reforming campaign finance law by reigning in the spending, a seminal 1976 campaign finance case is not getting overturned and Vermont’s current campaign finance law violates the First Amendment (but we’re left with a slightly amorphous cloud as to why, exactly, this is the case). So much for the “we all get along” Roberts Court.

The focus of this case is Act 64, a Vermont law which created stringent expenditure and contribution limits. The expenditure limits restrain how much state candidates can spend on their own campaigns, while the contribution limits restrain how much others (individuals, organizations and political parties) can contribute to someone’s campaign. This Act 64 was challenged by a variety of different people (candidates, political parties, supporters, etc.) on the grounds that it violated their First Amendment rights. The District Court found that the expenditure limit violated candidates’ First Amendment rights. It also found that the contribution limits, as directed toward a political parties’ ability to contribute to a campaign, were unconstitutional. But it otherwise upheld the remaining contribution limits (i.e., as applied to non-political parties). On appeal, the Second Circuit ruled that all of the contribution limits are actually constitutional, not just the non-political party limits. As for the expenditure limits, the Second Circuit found that they might be constitutional because there are compelling interests in having them (they prevent corruption, and the appearance of corruption). So the Second Circuit ruled that this portion of the case should be remanded so that the District Court could determine if Act 64 was narrowly tailored to those compelling interests.

Right off the bat, let’s make clear the one thing we can take away from the Supreme decision here - six of the Justices agree that the Second Circuit was wrong, and that the contribution and expenditure limits are both unconstitutional. That’s all we really get in terms of new law, since the six can’t agree on much of anything else.

The main plurality opinion was penned by Justice Breyer and only Chief Justice Roberts joins with him entirely, although Justice Alito joins in most of the opinion. Breyer first looks at the expenditure limits and find that they violate the First Amendment in light of this Court’s 1976 ruling in Buckley v. Valeo. In Buckley, the ‘76 Supremes looked at the validity of a federal law creating contribution and expenditure limits. They found that the governmental interest in preventing corruption (either actual corruption or the appearance of corruption) supported federal contribution limits. Contribution restrictions are a “marginal restriction” which leave the contributor free to adequately discuss issues. However, the expenditure limits in that case were found to violate the First Amendment because expenditure limits are significantly more severe than contribution limits. They affect the protected freedom of political expression and association of many people, while also reducing the quantity and quality of political issues which may be discussed. Thus, Buckley and the thirty years of subsequent jurisprudence mandate the overturning of Act 64’s expenditure limits (and Breyer “declines” an invitation to limit Buckley on the grounds that expenditure limits help candidates focus on campaigning among the public rather than focusing on raising money).

With the expenditure limits taken care of, Breyer then turns to the contribution limits and finds that they also fail because they’re not carefully tailored; thus, the law effectively places a “disproportionately severe” burden on “First Amendment interests.” In Buckley, the Court upheld the relevant contribution limit, capped at $1,000, because it was “closely drawn” to the important governmental interest (of avoiding corruption). The Buckley Court noted that in determining whether a limit was “closely drawn,” the level or amount of the limit comes into play, but that there’s no clear-cut line. So the question here, for Breyer, is whether the limits of Vermont’s Act 64 are sufficiently “closely drawn” or whether they’re too low to allow for effective campaigning, and he goes with the latter. He doesn’t like that Act 64 sets its limits per election cycle, with a limit of $200 for both the primary and final campaigns in a gubernatorial race (and even lower limits for state congressmen). Breyer calculates this limit, in 1976 dollars, to be about $57 per election, in comparison with Buckley’s $1,000 per election. When looked at in total, Act 64’s limits are also the lowest in the country, and “well below the lowest limit this Court has previously upheld.” When these low limits are combined with the effect these limits have on Vermont political parties and potential volunteer activity, Breyer just finds them too restrictive.

Breyer goes on to list five factors which further support a finding that the limits aren’t closely drawn to the governmental objectives in the limits: (i) the limits will likely restrict the funding available for challengers to effectively campaign against incumbents; (ii) that political parties must comply with the same limits as other contributors threatens the ability of “a particularly important political right, the right to associate in a political party;” (iii) the limits apply equally to volunteers, which means that a volunteer can only offer limited services or support to a candidate (for example, Breyer says that once they’ve amassed travel expenses beyond the limit, they’re arguably cut-off from any more volunteer work); (iv) the limits are not adjusted for inflation, so the limit declines in real dollar value every year; and (v) the record is void of anything to support such a restrictive set of limits. When all of these factors are taken together, Breyer just doesn’t see any way that Act 64 doesn’t unreasonably burden First Amendment interests. And he sees no way to pull out and save some provisions of the contribution limit, while only striking down others, because he would have to either write in additional words to the statute, leave “gaping loopholes” or make a determination of how the Vermont legislature, itself, would resolve the issues.

As mentioned, Justice Alito did not join in the entirety of Breyer’s opinion. He was with everything just discussed. However, there is another part of the opinion that he declined to join, leaving Breyer and Roberts on their own. In that section, the question was whether the Court should overrule Buckley because experiences since have shown that contribution limits on their own can’t actually deter corruption. Breyer says that they can’t overrule Buckley because of the legal principle of stare decisis, which says that courts should respect prior decisions. In other words, the norm is to adhere to precedence and only depart from it in light of “special justification.” Here, there’s no such special justification, because Buckley does not appear to be an anomaly and there’s no demonstration that the factual assumptions made by the Buckley Court are no longer valid. Breyer also argues that overruling Buckley would wreak havoc on Congress and state legislatures, which have relied upon it in drafting campaign finance laws.

Justice Alito, meanwhile, filed a separate opinion, concurring in part and concurring in the judgment, to explain why he didn’t sign off on the stare decisis portion of Breyer’s opinion. It’s not that he necessarily disagrees with Breyer’s assessment. Rather, he doesn’t think the issue should’ve been touched in the first place, because he believes the parties’ argument to “revisit Buckley” wasn’t really their main argument, and was only an “afterthought.” In fact, he says they didn’t even bother to discuss the doctrine of stare decisis or why this was an appropriate situation for ignoring the doctrine. Thus, Alito thinks Breyer never should have mentioned any of it in his written opinion.

The next concurring opinion comes from Justice Kennedy. Kennedy agrees that Act 64’s contribution and expenditure limits violate the First Amendment. However, he is skeptical about the Supremes’ past jurisprudence regarding campaign finance laws. He thinks that “[t]he universe of campaign finance regulation is one this Court has in part created and in part permitted by its course of decisions” and that the plurality opinion “may cause more problems than it solves.” Basically, he’s uncomfortable with the Court deciding something like the fact that a $200 limit is no good while a $1,500 limit is. Because he’s so skeptical about this whole business, he refuses to join in the substance of the opinion.

The last concurring opinion is from Justice Thomas, joined by his buddy, Justice Scalia. Thomas also concurs in the judgment, agreeing that Act 64 is unconstitutional. But he gets there by taking a different path than Breyer and the plurality. Thomas doesn’t think that Buckley sufficiently protects political speech. In fact, he thinks the decision is “illegitimate” and should not be entitled to stare decisis protection - that is, Thomas would overturn Buckley and put in place a different standard entirely. There should not be any distinction between contribution limits and expenditure limits because, to Thomas, expenditure limits violate First Amendment protections of political speech just as much as contribution limits. Thus, Thomas would review all campaign limits with strict scrutiny. In this case, all of Act 64’s limits fail to satisfy strict scrutiny, which is why Thomas concurs in the judgment.

Justice Stevens files the first of two dissenting opinions, deciding that Buckley should be overruled with regard to expenditure limits. He believes that Buckley, in its ruling on expenditure limits, went against the “long-established practice” of treating expenditure limits as permissible regulations of conduct. Stevens also thinks that the Supremes have previously upheld Buckley, really, only with regard to contribution limits rather than expenditure limits, so stare decisis isn’t as strong here. Ultimately, Stevens really doesn’t like the notion that Buckley “equate[s] money with speech,” because “a candidate can speak without spending money.” He also believes that “the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities” and that they would’ve fully supported Congressional authority to limit campaign spending.

Justice Souter gives us the second dissenting opinion, and the last opinion of this case, joined by Justice Ginsburg and, in part, by Justice Stevens. Souter begins by saying that he thinks it’s premature to say that the expenditure limits of Act 64 definitely violate the standards of Buckley. In Buckley, the Court left the door open for some constitutionally valid expenditure limits, and Souter thinks that there’s a new governmental interest at play here that must be considered, in addition to the interest in avoiding corruption. That new interest is in “slow[ing] the fundraising treadmill” and alleviating the drain on time caused by “endless fundraising.” Souter would have the Second Circuit remand to the District Court so that the District Court could decide if the spending limits are the least restrictive means to accomplish both of these interests, in combination. This is the part of Souter’s opinion that Stevens doesn’t join - he agrees that there should be more proceedings, but not for further interpretation of Buckley, but in light of his desire to overturn Buckley. Stevens does join in the remaining portions of Souter’s opinion, however.

Souter next says that he believes the contribution limits are totally valid, because they really don’t depart from any other limits previously upheld by this Court or adopted by various states. While the plurality thinks the dollar value place on these limits is “laughable,” Souter thinks they’re still above the threshold which would not withstand constitutional scrutiny. Finally, Souter turns to four other “issues of detail:” (i) while he agrees with the plurality that accounting for volunteer expenses is a nuisance, he’s not sure that Act 64’s limits would actually limit volunteer efforts; (ii) he doesn’t think the failure of Act 64 to account for inflation is important because the question is about the law as it is now, not as it may be after future inflation; and (iii) there’s no problem with putting the same contribution limits on political parties as on everyone else. The fourth “issue of detail” Souter addresses is one untouched by the plurality, but raised by some of the parties, having to do with the Act’s prohibition of coordinated expenditures - Souter sees no problem in the fact that the Act presumes prohibited coordinated expenditures by and between a political party and a candidate until the party presents evidence showing no such coordination. In any event, the point is this - Souter, Ginsburg and Stevens are ok with the contribution limits and would like to have the lower courts look more into the expenditure limits.