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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

Further Thoughts on the Vermont Oral Argument

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February 28, 2006, 5:09 p.m.

You have to give the Court credit: the Justices were extremely well prepared for today's argument in the campaign finance case. They clearly had studied the record, which is extensive. They often referred specifically to different aspects of the district court and court of appeals rulings, and they cited amicus briefs as well as those submitted by the parties.

Strict Scrutiny of the State's Submissions

In fact, the Attorney General of Vermont perhaps wishes Chief Justice Roberts hadn't read his brief so closely. It was clearly an awkward moment when the Chief called the AG to task for writing, on page 13 of his brief, that campaign contributions often "determine what position candidates and officials take on issues." Because the use of the verb "determine," rather than the weaker word "influence," carries with it an accusation of quid pro quo corruption, the Chief Justice wanted to make sure that the Attorney General intended this serious accusation.

When the Attorney General waffled a bit on this point, the Chief pressed further, leading to yet another awkward moment. How many prosecutions for political corruption have you brought?, the Chief asked the state's leading law enforcement officer. When the answer was none, the Chief then asked how could the AG think that political corruption was a serious problem, enough to restrictions on speech.

Vermont 's AG wasn't the only lawyer who waffled a bit. James Bopp, representing the opponents of the campaign finance law, gave a couple of different-and inconsistent-answers when asked by Justices Stevens, Souter, and Ginsburg whether he thought any record could ever support a campaign spending limit. At first, he seemed to say that he thought that, in a different case, a stronger record might support a spending limit, but then backed away from that apparent concession, saying that he couldn't imagine a circumstance in which a spending limit would be justified.

This kind of slipping-and-sliding can frustrate the Justices-they are particularly adept at probing the weak spots of any advocate's armor-and moot courts are designed to avoid such inconsistencies. But it's doubtful that Mr. Bopp's missteps will cause him any damage. It seems as if a majority of Justices are unwilling to leave the door open to spending limits on candidates, even if in an unguarded moment Mr. Bopp might have been.

In fact, at a couple of points during Mr. Bopp's argument, the questions from Justices Scalia and Kennedy appeared to be designed to help him with his argument. Justice Scalia quipped that trying to defend Vermont's spending limit based on the rationale of protecting a candidate's time, when Vermont simultaneously has such stringent contribution limits, is like a murderer complaining that he's an orphan. Justice Kennedy said he was prepared to accept as a "common sense" proposition that money buys access-even privileged access-but what follows from this premise? After Mr. Bopp missed this softball pitch, Justice Kennedy said something to the effect of, I would have thought your answer would have been it's up to the voters to throw the bums out of office.

Later, Justice Kennedy came back to this same theme: even if it is proven at criminal trials that several members of the legislature traded votes for campaign cash, do those facts justify strict spending limits? His question seemed to suggest that the correct answer should be no; just because contributions cause problems, it is not enough to infringe upon First Amendment rights. Although the name Jack Abramoff was never mentioned at today's arguments, one had the impression that Justice Kennedy was searching for a First Amendment basis to invalidate campaign finance rules in a post-Abramoff world.

The Proverbial "Devil in the Details"

If the Court invalidates Vermont 's contribution limits, that decision is not likely to be unanimous. Justice Ginsburg at least, as probably Justices Stevens and Souter as well, seemed inclined to support the district court's factual finding that it is possible to conduct competitive campaigns even under Vermont 's strict contribution limits. Justice Ginsburg made reference to the Burlington mayor's race, which the trial court had relied upon to support its factual finding, and she asked Mr. Bopp on what basis that finding should be overruled. When he said that the trial court was erroneous, and that the Supreme Court must exercise independent judgment of the facts because of the First Amendment rights involved (a requirement known as the Bose doctrine to First Amendment litigators), Justice Ginsburg asked Mr. Bopp to point to a specific place in the record to demonstrate the trial court's error. At first, Mr. Bopp said he couldn't point to any specific location in the record, but then he mentioned the testimony of six witnesses he said supported his position. One guesses that this exchange did not help avoid a dissenting opinion on this factual point.

The Vermont Attorney General also struggled with the factual record. Justice Scalia repeatedly pointed out that the district court relied on evidence of average expenditures in all races, not expenditures in competitive races, which is where "the shoe pinches," as Justice Scalia put it. The AG tried to shake off this fact, but Justice Scalia persisted, with the AG having to admit the point and move on.

There were other details to the Vermont law over which the AG stumbled. One concerned the burden that the law imposes on candidates to overcome a presumption that spending by their supporters was coordinated and therefore countable as contributions. The AG tried to make this burden minimal, saying that it would be enough for a candidate to file an affidavit swearing to the independence of the spending. But on rebuttal Mr. Bopp effectively quoted the Vermont law itself to say the spending was "prima facie" evidence of coordination, which suggested a heavier burden required by candidates to rebut it. Even Justice Souter, the AG's natural ally, had trouble with the state's position on this issue.

A majority of Justices were also clearly very troubled by the law's specific limitation on contributions by parties. Justice Breyer, for one, asked why the Democratic and Republican parties should not be permitted to pool $10 contributions from party loyalists to support whichever candidates the parties thought most likely to be effective to their overall statewide causes. He indicated that he thought the inability of parties to support new challengers in this way was at least one indication that the law was too favorable to the interests of incumbents.

Another aspect of the law that concerned Justice Breyer and others was the fact that Vermont 's limits apply per cycle, not per election, meaning that that they apply both to primary races and the general election. This fact cuts the limits effectively in half, and again makes it particularly difficult for challengers to mount effective campaigns against incumbents. When asked by Justice Souter whether the evidence in the record on the ability of candidates to mount effective campaigns included evidence specifically on the ability to be effective in a cycle that involves both a competitive primary and competitive general election, the Attorney General could not point to anything specifically.

Thus, the Vermont law is clearly vulnerable in several specific respects, without regard to the general principles involved.

The public should appreciate that the Justices are attentive to the details of the statutory scheme, even if it makes it difficult for non-specialists to grasp all aspects of the case. This focus on details suggests that the Court is less likely to issue a sweeping ruling, one which would preclude all state and local efforts to tackle the issue of campaign finance. Instead, the Court is more likely to be careful, nuanced, and incremental, reflecting as much sophistication of the political realties involved as is possible from their seats in the Marble Palace.

The Role of Precedent in the Court's Deliberations

Surprisingly little time was spent in the hour-long argument on Buckley. It will be interesting to review a transcript to see just how few times that case was mentioned. All the attention to the statute's details seemed to crowd it out.

Maybe it hung in the air, not needing to be mentioned, but when Justice Breyer raised it toward the end of the hour, the impression was, "Oh yeah, we almost forgot about that important case." Shrink Missouri clearly received more attention at the oral argument, because of the important implications of that specific precedent for the state's strict contribution limits. The Justices were working out the doctrinal implications of Shrink Missouri, as applied to the facts of this case, but they didn't seem to spend much time using Buckley as doctrine to help decide this case. Maybe that's because Buckley has been followed by so many intervening precedents, it does not need to do any analytic work of its own. But it was striking that the Court was working with the evidence, working with the general policies and principles underlying the First Amendment, and working with the doctrine of Shrink, but not doing a lot of work with Buckley itself.

Still, there seems virtually no chance that the Court will cast aside Buckley's holding on spending limits. Whether that is because a majority of the Justices feel bound by the force of Buckley as precedent, as Justice Breyer intimated-or because they are philosophically inclined to agree with Buckley on this point, making reliance on the doctrine of stare decisis superfluous, as the questioning of several Justices suggested-the bottom line will be the same. Although some had hoped that this Vermont case would be the downfall of the Buckley view of spending limits, the strong likelihood is just the opposite: this case will reinvigorate this ruling of Buckley, shoring it up for years and perhaps decades to come.

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