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Electronic Roundtable '06

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Electronic Roundtable '06

Randall v. Sorrell: It's Not Just Spending Limits

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February 23, 2006

Randall v. Sorrell seems destined to be known as "the Vermont spending limits case." At least that's what most people I know call it - including me. That's unfortunate, because the more interesting, and potentially more important part of the case is the challenge to numerous contribution limits in the Vermont law.

It's easy to see why spending limits have been the focus of the case. For years, supporters of campaign finance regulation have sought spending limits. So long as spending is unlimited, the unlimited demand for funds will mean constant efforts to circumvent contribution limits. (That spending limits may merely result in constant efforts to circumvent spending limits seems not to have occurred to anyone). But since Buckley v. Valeo, it has been generally presumed that spending limits are unconstitutional. The Vermont statute was intentionally passed to challenge Buckley , or at least the common interpretation of Buckley, on this point. Thus the decision of the Court of Appeals to open the door to spending limits was stunning news, and the dissent by Judge Winter - as powerful and thorough a dissent as I can recall, in any case on any issue - was most cogent on this point. For the Supreme Court to uphold the limits would mark a major change in campaign finance jurisprudence.

That said, I think it unlikely that the Court will uphold the limits. It seems fairly clear from past cases that Justices Scalia, Kennedy, and Thomas will not. Leaving aside the Court's liberals, I am skeptical that either Chief Justice Roberts or Justice Alito will uphold the limits - and that makes five to strike down Vermont 's spending limits and maintain the Buckley status quo, even if all four liberal justices vote to uphold - no sure thing, given the precedent.

The contribution limits, on the other hand, seem more likely to create new law. Vermont 's limits are the lowest in the nation, as little as $200 for a state legislative district, up to just $400 for a statewide office. Of course, some state has to have the lowest limits in the country, and it may as well be Vermont , which is pretty small - 49th in population. But $400 is not very much for a statewide "district" with over 600,000 people. Adding to this is that all in-kind contributions count toward the limit, and this appears to include, for example, using a personal cell phone to make a call, using one's personal auto, contributing a pen or pencil, or providing a deli sandwich to a volunteer worker.

In upholding contribution limits, the Buckley court noted that there could come a point at which limits were set so low as to prevent a candidate from raising enough cash to get his message out to the public - that, suggested the Court, would be constitutionally problematic. The Randall plaintiffs complain that the Vermont limits have reached that problematic stage. If the Court agrees with the plaintiffs, it will open up state laws to a great deal of second guessing as to just how low they can set limits without violating the Constitution. On the other hand, to uphold the limits would make clear that there is almost no lower boundary to what legislators can set as contribution limits. Either way, the Court's decision will impact the law.

The third option, of course, is that the Court could decide that the limits here are too low, but that it cannot effectively micromanage the legislators. That could lead it to simply strike down limits entirely, as the only manageable standard - Justices Scalia and Thomas have already staked out that position, and Justice Kennedy has shown some sympathy to it. This result seems unlikely to me, but it's not inconceivable and if adopted, it would be the blockbuster result of the case.

Even assuming the Court upholds the basic limits, it may balk at the limits on party activity. Under the Vermont law, parties are subject to the same limits as individuals. Where a political party is concerned, a $400 limit for a statewide race, including all independent expenditures as well as contributions, truly seems to cut parties out of the picture. In Colorado Republican Federal Campaign Committee v. FEC, the Court upheld limits on coordinated party expenditures as an "anti-circumvention" measure, but this case is asking a whole lot more of the Court. Frankly, it is very difficult to see how a $400 contribution from a party could "corrupt" a candidate, even using the amorphous definition of "corruption" adopted in McConnell v. FEC. And since party support is especially vital to challengers, the Vermont limits pose a real threat to competitive elections. While various options are open to the Court, any way it goes it is likely to upset the current Constitutional regime - the question is whether it will make a big splash, or merely add a few ripples to the water.

So watch the contribution limit issue. It is really the trickier one for the Court, and the one more likely to make new law. Perhaps, by summer, we'll be calling Randall the " Vermont contribution limits case."

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