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US: Justices Reject Campaign Limits in Vermont Case

by Linda GreenhouseThe New York Times
June 27th, 2006

Vermont's limits on campaign contributions and on campaign spending by candidates are unconstitutional, the Supreme Court ruled on Monday in a splintered 6-to-3 decision suggesting that efforts to limit the role of money in politics might face considerable resistance in the Roberts court.

The decision was clear in reasserting a 30-year-old precedent against the constitutionality of imposing spending limits on political candidates. But it also showed that the court continued to grapple with how far it is permissible to go in limiting campaign contributions, a topic that remains a heated political issue and one likely to come before the justices again.

While the patchwork of six separate opinions, described by Justice John Paul Stevens as "today's cacophony," raised questions about the court's direction, one conclusion was unmistakable: the court's 1976 decision in Buckley v. Valeo continues to stand as an insurmountable constitutional obstacle to any efforts to impose direct limits on the amount candidates can spend on their own campaigns.

Only three justices were willing to reopen that conversation, to the sharp disappointment of those in Vermont and elsewhere who hoped the case might invite a reconsideration of the precedent in light of the experience of the past 30 years.

One of the Vermont legislature's goals in enacting the state's campaign finance law, which took effect in 1998, was to give the Supreme Court a chance to revisit Buckley v. Valeo.

The United States Court of Appeals for the Second Circuit, which includes Vermont, had suggested in the 2004 decision that the justices overturned on Monday that the state could be on the right track and that spending limits might be justified by rationales to which the Supreme Court had not given much consideration in 1976.

That analysis was incorrect, Justice Stephen G. Breyer said in the court's controlling opinion, which struck down spending limits ranging from $300,000 over a two-year election cycle for governors' races down to $2,000 for state representative.

It was on the contribution side of the campaign finance equation that the signals in the Supreme Court's new decision became ambiguous.

Vermont's contribution limits, the lowest in the country by a considerable amount, were lower than any the court had previously considered. Neither an individual nor a political party, for example, could contribute more than $400 to a candidate for statewide office over a two-year election cycle, including primaries.

Justice Breyer, in an opinion that Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined, said that these dollar limits, along with other aspects of the statute, violated the First Amendment rights of both candidates and political parties.

The decision marked the first time in the decades of campaign finance decisions that the court had found a limit on contributions to candidates to be too low. The Buckley decision itself upheld a $1,000 contribution limit for federal campaigns. A decision in a Missouri case six years ago upheld the state's $1,000 cap, rejecting the argument that this amount was no longer adequate.

"Nonetheless," Justice Breyer said Monday, "we must recognize the existence of some lower bound."

He added, "At some point the constitutional risks to the democratic electoral process become too great."

A limit that is too low can prevent challengers from mounting effective campaigns against well-known incumbents, Justice Breyer said. "Were we to ignore that fact, a statute that seeks to regulate campaign contributions could itself prove an obstacle to the very electoral fairness it seeks to promote," he added.

Justice Breyer's opinion was so nuanced, applying a two-part test to the decision of how low is too low, with five factors making up the second part of the inquiry, as to leave the court's next move uncertain. At the least, the two new justices who signed Justice Breyer's opinion could have done so while holding quite different views of what should happen in a future case with slightly different facts.

The court is clearly in transition, although it is not yet clear to what, Edward B. Foley, an election law specialist at Ohio State University, said in an interview. "It may be very difficult, if not impossible, for anyone to get a majority opinion for anything," Mr. Foley said.

In this case, Randall v. Sorrell, No. 04-1528, the loneliness of the middle ground was apparent. While three other justices joined the judgment invalidating both the spending and contribution limits, they disagreed with Justice Breyer's approach.

Justices Clarence Thomas and Antonin Scalia restated their view that all limits on campaign finance violated the First Amendment. Justice Anthony M. Kennedy did not go quite that far, but wrote a separate opinion to repeat his view that the court's ventures in the campaign finance area had done more harm than good.

On the other side, Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg would all have upheld Vermont's contribution limits. On the spending limits, Justice Stevens said he had become "convinced that Buckley's holding on expenditure limits is wrong, and that the time has come to overrule it."

Justices Souter and Ginsburg did not go that far, but said that the Second Circuit's reconsideration of the issue should have been allowed to proceed.

Justice Breyer did not even have the full support of the justices who signed his opinion. Chief Justice Roberts said nothing, but Justice Alito filed a brief opinion to say there was no reason to address the continuing validity of Buckley v. Valeo because Vermont had not raised a sufficiently direct challenge to the precedent.

One election law expert, Richard L. Hasen of Loyola Law School in Los Angeles, said Justice Alito's opinion appeared to invite such a direct challenge.

Justice Breyer's opinion included a muscular defense of the principle of adherence to precedent, which he said "avoids the instability and unfairness that accompany disruption of settled legal expectations." He said that "iteration and reiteration over a long period of time" made a precedent even more binding.

His phrasing recalled the recent Senate confirmation hearings for the two new justices, with their discussions of whether Roe v. Wade, the 1973 abortion case, had achieved through repeated reaffirmation the status of a "super" or even a "super-duper" precedent. Chief Justice Roberts signed this part of Justice Breyer's opinion and Justice Alito did not.



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