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New Court Could Confront Buckley

With the next chief justice likely to be confirmed Thursday and another vacancy waiting to be filled, the Supreme Court indicated Tuesday that it will hear a pair of cases that could challenge the underpinning of three decades worth of campaign finance law.

By agreeing to hear a case challenging Vermont’s limits on the amount candidates can spend in state races, the court is opening itself up to the possibility that it may have to reconsider its landmark campaign finance ruling in the case of Buckley v. Valeo.

That 1976 decision upheld the constitutionality of limits on contributions to federal campaigns while simultaneously declaring that limits on spending violated the First Amendment’s guarantee of free expression. Since then, state and federal campaign finance law — 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.

The second challenge the high court agreed to hear involves an appeal of the constitutionality of a provision of the 2002 Bipartisan Campaign Reform Act that puts restrictions on ads by outside groups 60 days before a general election (and 30 days before a primary). The Supreme Court upheld the constitutionality of such provisions in 2003. Last year the U.S. District Court for D.C. decided that the law didn’t allow Wisconsin Right to Life to broadcast issue ads urging Sen. Russ Feingold (D-Wis.) to oppose judicial filibusters and that the Supreme Court’s 2003 decision precluded a challenge. WRTL maintained that the issue ads were genuine efforts by a grass-roots organization to influence a Senate floor debate and not aimed at swaying the upcoming federal election. The group argued that BCRA’s prohibition on such ads impinges on their free speech rights.

That the Supreme Court decided to rehear a case pivoting on the ramifications of the 2002 law so soon after its consideration of McConnell v. Federal Election Commission in 2003 has many wondering whether the high court is about to usher in a new era in campaign finance jurisprudence.

Both proponents and opponents of restrictions on campaign financing will be watching both cases intently, but the Vermont case promises to capture the imagination of groups on both sides because of its sweeping potential to undo so much of what has been a constant in federal campaign finance reform for so long. And what has campaign finance observers so captivated is the uncertainty about how the reshaped court will make its mark on this area of law.

It should also provide chief justice nominee Judge John Roberts his first opportunity to decide these issues as a member of the court. Roberts did not decide a major campaign finance case during his two-year tenure on the U.S. Court of Appeals for the D.C. Circuit.

“These are very interesting developments,” said Rick Hasen, a professor at Loyola Law School in Los Angeles. Hasen pointed out that many significant campaign finance decisions have been decided by a 5-4 majority in recent years, and with the expected appointment of two new conservative justices for the next session of the court, “we could well be looking at a new majority on the court that will start voting to strike down campaign finance laws as inconsistent with the First Amendment.”

No prospect could be more pleasing to James Bopp, the lead attorney challenging the constitutionality of campaign finance laws in both cases.

“We are extremely pleased that the Supreme Court has agreed to review the Second Circuit’s unprecedented decision upholding the expenditure limits and their very low contribution limits,” Bopp said in a statement. “Vermont has launched a direct assault against candidates’ rights of free speech, while leaving interest groups and the press free to spend unlimited sums in elections. Such a scheme makes candidates bit players in their own elections and thwarts democracy.”

That argument has long appealed to many Members of Congress who oppose spending limits. But many, if not most, campaign finance reformers believe their proposals are ultimately unworkable without a cap on the money spent. Without such a limit, they believe, campaigns become essentially an arms-race of sorts to raise cash, leaving candidates virtually no time to do anything but raise money to keep with their opponents.

Indeed, of the flurry of concurring and dissenting opinions filed by judges on the The U.S. Court of Appeals for the 2nd Circuit, one opinion in particular has provoked discussion among campaign reform proponents for months.

In his concurrence with the 2nd circuit’s decision, Circuit Judge Guido Calabresi wrote that the whole debate about campaign finance, and implicitly about the Buckley decision, has avoided “the huge elephant — and donkey — in the living room.” That lurking presence, 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.

What the embrace of such a philosophy would mean in terms of a judicial decision on legislation is unclear, but what so captivated experts on the reform side of the campaign finance debate 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 that same case, however, Breyer also cautioned that contribution limits that are too low can prevent effective campaigns and can serve to insulate incumbents from challenge. Vermont’s contribution limits — at issue along with the expenditure limits in this case — are much lower than the ones to which Breyer referred. The Vermont legislature limited contributions from individuals to $200 to $400 per cycle, depending on the office.

The number and significance of the issues arising out of the two cases the Supreme Court agreed to hear are so extensive that operatives on both sides could have much to hope for, and much to fear.

Those supporting Vermont’s spending and contribution limits — including the National Voting Rights Institute and Vermont Public Interest Research Group, a broad coalition of lawmakers led by Sen. Jack Reed (D-R.I.), as well as former Sens. Bill Bradley (D-N.J.) and Alan Simpson (R-Wyo.) — hope the court agrees with the 2nd circuit’s decision that Buckley left the door ajar for narrowly tailored spending limits that secure clearly identified government interests.

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.

“When Buckley was decided, the cost of campaigns was relatively modest,” Brenda Wright, managing attorney for the NVRI, said in a statement. “Thirty years later, it’s clear the fundraising arms race has turned our officeholders into full-time fundraisers and undermined the public’s faith in government.”

But it could just as easily go the other way, fear those who support such limits. With the potential for swing-vote Justice Sandra Day O’Connor to be replaced by a more conservative justice, some reformers are privately nervous, as reopening the issue could just as easily mean a decision that questions the constitutionality of the framework they have worked to build.

A statement released by Feingold, one of the architects of BCRA, on Tuesday alluded to that possibility.

“The primary sponsors of the Bipartisan Campaign Reform Act took a leading role in the successful defense of that law in the McConnell case, and we will continue to work to protect that landmark ruling, which is so important to the health of our democracy,” Feingold said.

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