WASHINGTON – The Supreme Court on Tuesday will revisit its 30-year-old standing precedent on campaign finance reform in a case that could break new ground in time for the upcoming midterm elections.
The debate at hand is over Vermont's Act 64. The 1997 law limits the amount of private contributions to a candidate, political committee or party. It also limits expenditures each can make and establishes rules for receiving public financing for campaigns. Act 64 has never fully gone into effect because of lower courts' mixed verdicts on whether it violates a constitutional right to free speech.
In the case to be heard this week, the justices will decide whether the 2nd Circuit Court of Appeals was correct in concluding that the high court's 1976 Buckley v. Valeo ruling did not contain a sweeping prohibition of mandatory spending limits that would negate Act 64.
In its 2004 decision, the 2nd Circuit wrote: "Buckley permits spending limits that are narrowly tailored to secure clearly-identified and appropriately-documented compelling governmental interests."
Supporters of Act 64 argue that the law is tailored to the state's interest in making political campaigns fairer and more accessible by limiting the amount of time lawmakers must spend having to gin up campaign cash, thereby leaving them more time for state matters. Those who favor limiting how much money candidates may spend also argue that the current system, in which multi-millionaire prospects use their wealth to saturate the airwaves, is cost prohibitive for unknown challengers and those of lesser means to compete effectively.
"Speaking at a very loud volume has an impact on those who cannot speak so loudly," said Nick Nyhart, executive director of the pro-reform group Public Campaign, which supports the law.
Opponents of mandatory spending limits, which count at least three Supreme Court justices, agree with the court's prior assessment in Buckley that campaign spending is equivalent to speech. Disparities can never trump the First Amendment rights of candidates, they argue, no matter how many Michael Bloombergs or Arnold Schwarzeneggers are produced. Critics also contend that by limiting donations, the state is making races less competitive, thereby making incumbents less responsive to constituent concerns.
How Much Speech Can Money Buy?
The high court has traditionally found that the First Amendment does not mean individuals are entitled to speech, only that government may not encroach on individuals' freedom of expression except in a few narrow circumstances. In other words, free speech does not mean equal speech.
The Buckley court found that speech may be restricted only when a greater interest of the state is imperiled. Thus, Buckley limited the amount outsiders could donate to candidates because the court recognized states' overriding interest in minimizing corruption or the appearance of corruption.
Court watchers say it would be extraordinary if the Supreme Court found Vermont's claim of parity interest outweighed candidates' freedom of expression. They also don't see how the fear of corruption is overreaching when candidates are spending their own money.
"The unfair or inegalitarian claim is a different concern than the corruption concern. Inegalitarian concerns are not enough to squelch free speech," said Eugene Volokh, a professor at UCLA School of Law and founder of the Volokh Conspiracy blog.
Interested camps have largely fallen along predictably partisan lines over Act 64. The Republican National Committee filed a friend-of-the-court brief in opposition to the law while the Democratic National Committee filed a brief supporting the law. But observers caution the minority party to be careful what it wishes for.
"If states go too far and pass spending limits that are too low, that might be seen as an effort to entrench incumbents," said Spencer Overton of the George Washington University Law School.
Indeed, it is far from clear whether mandatory caps on spending would result in a more level playing field, especially when name recognition is nearly as potent a tool in politics as cash.
According to OpenSecrets.org, incumbent Senate candidates in 2004 raised nearly nine times as much money as challengers on average. The 26 incumbents raised almost $224 million while the 83 challengers came up with a mere $79 million. It isn't that incumbents have more generous supporters, political scientists say. It's that they already have supporters going into a campaign; challengers need to create them.
"Challengers not only need more money overall, but they also usually rely on a small base of large donors until they become known by the voting public," said Sen. Mitch McConnell, R-Ky., in an amicus brief.
Even if incumbents were restricted to spending less than their challengers, as Act 64 stipulates, it is not likely that the extra 10 to 15 percent would give unknown challengers a meaningful boost.
"Incumbents are perfectly happy to have limits on spending. Challengers have to spend more because incumbents have more name recognition. If you limit both equally you've given a slight edge to incumbents," said John Samples, director of the libertarian CATO Institute's Center for Representative Government.
The case, Randall v. Sorrell, will be the first campaign finance law dispute decided by new benchwarmers: Chief Justice John Roberts and Associate Justice Samuel Alito. The pros disagree over whether they will lean toward the free speech argument over campaign finance limits.
"It is possible with the appointments of Roberts and especially Alito the court might go even further and provide even more free speech protection," Volokh said. "I don't think the court will be in the mood for providing less."
Retired Justice Sandra Day O'Connor, whom Alito replaced, had joined the court's liberals in majority opinions favoring campaign finance regulations. Alito and Roberts could potentially take the court in a completely new direction on campaign finance law, said Richard Hasen of Loyola Law School.
"The court's approach in campaign finance cases since 2000 has been increasingly deferential, allowing all kinds of campaign finance rules to be put into effect," said Hasen, who also writes the Election Law Blog.
For those seeking clarity on the constitutionality of campaign finance regulations, Randall is a difficult test case. It is the strictest campaign finance law in the land, so the justices could very well rule on whether the limits it sets for contributions and spending go too far and not say anything more about the broader issues at hand.
Those who criticize Buckley for not being well-decided or clear enough hope that the court either declares all mandatory spending caps unconstitutional or lays out guidelines for when they are permissible, even if Act 64's spending limits are struck down.
"If the court says this particular spending limit in Vermont is unconstitutional but there may be cases in which spending limits are warranted, that would certainly be a victory for the parties defending this law," Overton said.
Overton added that justices may want to back off and allow legislatures to experiment in what has been a fairly murky arena.
"On one hand, you want the spending limit so a candidate wouldn't have to raise an infinite amount of money so the money chase can stop at some point, but on the other hand you don't want to make the spending limit so low so that unknown challengers can't get out there to compete," he said, referring to the tightrope lawmakers must walk.
But Hasen noted that lawmakers stand to gain much from the campaign laws they write, which could open the door to more judiciary oversight.
"Because of the self interest problem with legislatures, is it better to have the court act aggressively?" he asked.
Still, campaign finance and clean election measures tend to be popular among voters. In a January FOX News/Opinion Dynamics poll, 65 percent of respondents said they believed elected officials made policy decisions guided by their major contributors.
"There is a real question of whether nine unelected federal judges know exactly what's best for Vermont politics, and maybe local politicians have a better sense of what's best for local politics," Overton said. "This is a tension between expressive rights on one hand, and the ability of local citizens to control the election rules in their own states and communities."
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