A flurry of recent activity surrounding a federal court challenge to Vermont’s campaign finance laws has set up a strong possibility that the Supreme Court could reconsider its 30-year-old landmark decision Buckley v. Valeo, which prohibited expenditure limits on federal campaigns.
Last week, plaintiffs challenging Vermont’s limits on the amount campaigns can spend in state races appealed their case to the high court — and campaign finance experts believe there is a good chance the Supreme Court will decide to hear it. If the court agrees to grant cert, as taking up the case is known, much of the legal underpinning for campaign finance law since 1976 could be rewritten.
It was that year the Supreme Court in Buckley v. Valeo upheld the constitutionality of limits on contributions to federal campaigns while simultaneously declaring that limits on expenditures violated the First Amendment’s guarantee of free expression. Most state and federal law since — along with the court decisions upholding or rejecting them — has been written with Buckley as its constitutional basis.
In 1997 the Vermont Legislature decided to take a different tack, imposing limits on both contributions and expenditures for state campaigns. As expected, those limits were challenged in federal court.
The case, Landell v. Sorrell, was brought by the Vermont Republican State Committee and other Green Mountain State conservative groups. It has since been consolidated with a similar case brought by liberal groups, and both are now seeking to be heard by the Supreme Court.
“I think the prospects of the court granting cert are good,” said James Bopp, the plaintiffs’ lead counsel. “If freedom of speech means anything under the First Amendment, it certainly means that candidates are not subject to government rationing on their speech.”
One of the reasons the high court is likely to hear the case has to do with what is known as a “circuit split” — that is, divergent opinions issued by two or more federal appeals courts. In this case, the question is whether the Buckley decision barred spending limits per se — or even further, whether such limits are, in fact, constitutional.
The potential ramifications of the Supreme Court weighing in on this case could be dramatic. If the high court upholds the Vermont restrictions, that would give Congress a green light to restrict the amount spent on campaigns — a key tenet of the post-Watergate reforms enacted in 1974 that the Supreme Court overturned two years later.
Since 1976, two federal appellate courts — the 6th and 10th circuits — have reaffirmed Buckley’s determination that limits on expenditures violate First Amendment protections. More recently, the Supreme Court has shied away from taking cases that deal with spending limits.
But taking exception, the 2nd Circuit seems to believe that such limits are not necessarily unconstitutional, or even inconsistent with Buckley. A three-judge panel upheld Vermont’s expenditure limits last August, asserting that Buckley did not rule expenditure limits to be unconstitutional on their face. Instead, the court asserted the 1976 decision “left the door ajar for narrowly tailored spending limits that secure clearly identified” government interests.
The plaintiffs appealed and sought to have an en banc rehearing by all 12 active judges on the circuit. The court denied their motion in February.
What’s especially interesting to campaign finance observers, however, is how the court denied the petition. Almost without exception, the acceptance or denials of petitions for en banc review are phrased in one sentence. But in Landell v. Sorrell, the 2nd Circuit issued seven separate concurring and dissenting opinions, totalling more than 50 pages, about whether the court made the right decision in refusing to rehear the case.
“This is almost unprecedented,” Bopp said. “I think that is maybe an indication that those judges see this decision as ripe for the Supreme Court.”
The collection of opinions was still growing last week. On Wednesday, one concurring opinion was added, and it particularly piqued the curiosity of the campaign-finance community, especially those who would like the Supreme Court to overturn Buckley at least in part.
Circuit Judge Guido Calabresi asserted in his concurrence that the whole debate about campaign finance, and implicitly about the Buckley decision, has avoided “the huge elephant — and donkey — in the living room.” The animal in the corner, he wrote, is the egalitarian notion that everyone in a democratic society, regardless of wealth, has a First Amendment right to have his or her intensity of desire about one candidate or idea or another measured equally. Money, he wrote, is a poor instrument for measuring the intensity of a political choice.
“In other words, and crucially, a large contribution by a person of great means may influence an election enormously, and yet may represent a far lesser intensity of desire than a pittance given by a poor person,” Calabresi wrote.
Where this philosophy would in terms of a judicial decision of legislation is unclear. Democratic campaign lawyer Bob Bauer said he doesn’t know where such a philosophy would lead, but he is certain that Calabresi’s assertions underscore the fundamental weakness of Buckley from a legal perspective.
Whereas Bopp and others believe that the 2nd Circuit is the errant federal court by straying from Buckley’s prohibition on spending limits, Bauer belongs to a different school of thought — that Buckley has been progressively weakened.
Bauer believes the Landell case might force the Supreme Court to “articulate what the post-Buckley world of campaign finance is going to look like. The constitutional doctrine has become entirely unclear.”
Brenda Wright, managing attorney for the National Voting Rights Institute, views the Landell case as the perfect vehicle for the high court to “reconsider the whole question of whether spending limits can pass constitutional scrutiny.” NVRI is representing a coalition of Vermont voters, candidates and public interest groups helping to defend the Vermont limits.
“I think our aim before the Supreme Court is to demonstrate that there are a whole series of compelling governmental interests to support the need for spending limits. We’ve seen over the past 30 years that limits on the size of contribution limits alone has not been adequate to deter corruption.”
But what so captivated experts on the reform side of the campaign finance community was that Calabresi’s opinion might articulate a way around the corruption argument as a rationale for the whole structure of campaign finance.
Legal experts say that Calabresi’s line of reasoning could be particularly appealing to Supreme Court Justice Stephen Breyer. In a concurrence in an unrelated campaign finance case in 2000, Breyer wrote that the state has as a compelling interest in enacting limits on expenditures — namely, the desire to protect the right of each citizen to have an effective voice in the political process.
In a dissenting opinion in the same case, Justice Anthony Kennedy suggested he also might find room to reconsider Buckley. Four justices must vote in the affirmative for the high court to agree to hear a case. Previously, Justices John Paul Stevens and Ruth Bader Ginsburg had indicated a willingness to look at the issues in Buckley.
“It’s possible that the Landell case will be that case,” Bauer said.