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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

How to Decide the Vermont Campaign Finance Case

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February 27, 2006

In my first two posts (Feb. 21, Feb. 23), I wrote more generally about the appropriate level of modesty for the Supreme Court to use in approaching the election law cases. In my final two posts, I will focus on more of the specifics related to the two cases before the Supreme Court this week. Today, I tackle the Vermont case; my next post will consider the Texas cases. (I assume that the reader has background on the Vermont case from either the other posts, Richard Briffault's excellent article in the Election Law Journal (cited earlier by Dan Lowenstein), or Richard's other excellent article on the topic, Richard Briffault, The Return of Spending Limits: Campaign Finance after Landell v. Sorell, 32 Fordham Urban L.J. 399 (2005).)

On the spending limits question, I believe it is unlikely that the new Roberts Court will reach out and hold, contrary to Buckley and to the Supreme Court's understanding for the last generation, that candidate spending limits are constitutional. True, the "time preservation" argument of the law's defenders once attracted the attention of Justice Kennedy-but it is of course true that a more narrowly tailored means of preserving candidate time (spent fundraising) is to impose a higher contribution limit or no limit at all. The alternative anti-corruption interest to support the law seems difficult for the current Court to accept without pulling down the entire Buckley edifice, and as Richard Briffault has noted, a predictable consequence of capping candidate spending without capping independent spending will be to further increase the importance of independent spending. The Court will likely be wary, following McConnell, of further undermining of the role of candidates and parties in elections.

More likely the Court will declare more forthrightly than in Buckley that candidate spending limits can never be constitutional. This would be quite unfortunate from the point of view of those of us who support reasonable campaign finance regulations. Indeed, for this reason I have been critical of the decision of the law's supporters to urge the Supreme Court to take the case. The alternative would have been further proceedings in the lower courts while the Vermont law took effect, in essence giving us a chance to see if robust political debate would be curtailed by the new laws.

The Supreme Court should decline to rule on the spending limits question, leaving open the possibility that a narrowly tailored spending limit (particularly one coupled with generous decentralized public financing that allows for robust political debate) could somehow pass constitutional muster. In due course, the Court can reverse the Vermont limits when the case returns after remand, if it is convinced (as it likely would be) that the First Amendment costs of the particular Vermont scheme are too high.

On the contribution limits question, the court will face the issue raised recently by Ned Foley: how much does the Court want to adhere to precedent? It seems pretty clear that the Vermont contribution limits should withstand scrutiny under the "New Deference Quartet" beginning with Shrink Missouri and culminating with the McConnell case. A modest Roberts Court may choose to move slowly and adhere to precedent, but I doubt this new precedent will hold much weight with a new Court majority.

I have recently suggested that there may be good reasons for the Court to tinker with the contribution limits cases, in ways that continue to show deference to the value judgments made by legislative bodies but with skepticism about means and ends. Applied in the context of contribution limits, I would like the courts to look more closely at whether there is evidence that such laws further the stated and proven interests of the state in preventing corruption, preserving democratic legitimacy, or assuring political equality without infringing too much on First Amendment rights of political speech and association. I fear, however, that the Court will not move in this direction of careful balancing, but instead will take the first steps toward dismantling the New Deference cases and ultimately mandate for Congress and every local and state government a deregulated system of campaign finance, where corporations, unions and wealthy individuals can give as much as they like directly to candidates for political purposes.

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