The Vermont Campaign Finance Case: A Preliminary Analysis

In Randall v. Sorrell, [1] a fractured Supreme Court issued six opinions, including four for the judgment, none of which was a majority opinion, striking down all of Vermont 's contribution and expenditure limits on campaign financing. Justice Breyer wrote for the three-person plurality, invalidating the expenditure limits categorically and striking down Vermont's contribution limits on narrow factual grounds. [2] Justice Alito wrote a short concurrence, deferring to another day the question whether the 1973 landmark campaign finance case Buckley v. Valeo should remain good law. [3] Justice Kennedy likewise put off any definitive judgment on Buckley 's continuing vitality, but he was much more pointed in his "skepticism" of the Buckley approach to contribution limits; thus, while approving the plurality's treatment of expenditure limits and the specific result invalidating Vermont's contribution limits, Kennedy clearly signaled here (as he has in the past) that he would favor a much less deferential posture towards contribution limits than the one adopted by Justice Breyer. Justice Thomas, joined by Justice Scalia, argued that Buckley should be overturned on the issue of contribution limits, and refused to endorse the plurality's analysis. [4]

In dissent, Justice Souter, joined by Justice Ginsburg and in part by Justice Stevens, voted to affirm the lower court as it upheld the contribution limits and remanded the expenditure limits for further analysis. [5] Justice Stevens wrote separately that Buckley should be overturned so as to allow reasonable contribution and expenditure limits. [6]

Background

In 1997, the Vermont legislature, in response to an invocation by their governor, passed an extremely stringent statute, commonly called Act 64, amending the state code to further regulate campaign finance. [7] In particular, Act 64 lowered the maximum legal contribution from any single source in one two-year election cycle, including a political party or political committee, to $200-$400 for a candidate for office, depending on the precise position sought. [8]

Act 64 also imposed per-election-cycle expenditure limits on many candidates, once again imposing different limits for different offices, ranging from $2000 for state representative from a single-member district, to $300,000 for governor. [9] Incumbents in state-wide offices were limited to 85 percent of the above-mentioned amounts, and incumbents in the Vermont general assembly were limited to 90 percent of their otherwise allotted amounts. [10]

As an anti-circumvention measure, Act 64 counted "related campaign expenditure[s]" as both contributions to and expenditures by a candidate. [11] A "related campaign expenditure is defined as an expenditure that is designed to influence an election and is "facilitated by, solicited by, or approved by" a candidate. [12] Expenditures by political parties or political committees that primarily benefit six or fewer candidates were presumed to be related expenditures. [13]

Proceedings Below

Between mid-1999 and early 2000, three separate lawsuits including various candidates, officeholders, voters, political parties, and political organizations, were brought in Federal District Court for the District of Vermont against the Attorney General of Vermont and all of the fourteen State's Attorneys challenging the constitutionality of Act 64. The cases were consolidated, and in Landell v. Sorrell, [14] the District Court upheld the contribution limits, including the "related expenditures" provisions, insofar as they counted "related expenditures" as contributions; struck down the contribution limits as they pertained to political parties; struck down the expenditure limits as inconsistent with the U.S. Supreme Court's precedent in Buckley v. Valeo ; [15] and upheld the presumption that expenditures by political parties and political committees primarily benefiting six or fewer candidates were related expenditures. [16]

All parties appealed, and, after issuing one set of opinions and withdrawing them, the U.S. Court of Appeals for the Second Circuit, by a divided panel, ruled to uphold virtually all of Act 64 on Aug. 18, 2004. [17] The Circuit Court affirmed most of the District Court's ruling, reversing only to the extent of upholding the contribution limits as applied to political parties and remanding for examination of whether the expenditure limits (and the provision counting "related expenditures" as candidate expenditures) were narrowly tailored to serve the compelling state interests of reducing corruption and its appearance and protecting the time of elected officials. [18]

Some of the plaintiffs petitioned the Supreme Court for certiorari regarding the constitutionality of both the expenditure and contribution limits and the constitutionality of the presumption that political parties' expenditures are "related," [19] and the defendants cross-petitioned, requesting that the Court uphold the expenditure limits as they stood rather than allow the remand for narrow-tailoring analysis. [20]

Supreme Court Analysis

Expenditure Limits

Vermont 's expenditure limits were struck down by a 6-3 vote. The plurality (Justice Breyer, joined by Chief Justice Roberts and partially by Justice Alito) concluded that Buckley controlled, [21] that Buckley should not be overruled due to stare decisis, [22] and that the expenditure limits in Vermont must fall because the interests put forth by Vermont in support of the expenditure limits are indistinguishable from the purported interests before the Court when it struck down similar limits in Buckley. [23] Interestingly, Justice Alito joined the entire plurality opinion except the portion devoted to Buckley 's precedential power. [24] Also, Justice Kennedy agreed that the plurality correctly applied strict scrutiny and invalidated the Vermont expenditure limits. [25] While not explicitly endorsing the plurality's analysis, Justice Thomas, joined by Justice Scalia, does agree that strict scrutiny should apply to Vermont 's expenditure limits, and that they fail that analysis. [26]

Justice Souter's dissent, joined by Justice Ginsburg, argues that Buckley did not address the purported interest of protecting public officials from the time demands of reelection fundraising, thereby allowing them more time for their public duties. [27] It then goes on to argue that the interest is compelling, and that remand to the District Court for narrow tailoring analysis was appropriate. [28] Justice Stevens would overrule Buckley 's expenditure limit analysis entirely [29] and allow the remand to proceed. [30]

Justice Alito's refusal to join the plurality's short stare decisis discussion and defense of Buckley under that theory is striking. It may be that Alito is simply being judicially modest, refusing to rule upon an issue that is not necessary for the case nor sufficiently (in his opinion) before the Court. [31] It is also possible that he is explicitly leaving the door open for a facial attack on Buckley, which, given the dispositions of the justices, is much more likely to result in the invalidation of contribution limits than the upholding of any expenditure limits.

The disposition of the case appears to shut the door on limits on candidate spending for the foreseeable future. (The special case of limits on campaign spending by corporations is another matter, one that was recently sidestepped by the Court in Wisconsin Right to Life, Inc. v. FEC, [32] and which may be back before the Court in Christian Civic League of Maine v. FEC [33]). While the Court has sometimes upheld regulatory regimes under strict scrutiny, [34] the plurality refuses to treat Vermont's purported interests as distinguishable from those rejected by Buckley, which it says would "limit Buckley 's holding as effectively to overrule it." [35] This presumably means that Justice Breyer and Chief Justice Roberts, as well as Justice Alito, would not allow any expenditure limits, as this would "effectively [] overrule" Buckley. In addition, Justices Thomas and Scalia continue to believe that all expenditure limits are impermissible burdens on speech, [36] and Justice Kennedy at least notes that upholding any limits would overturn a plethora of Supreme Court precedents. [37] Since it would seem unlikely that any of the six members of the Randall majority will leave the Court any time soon, there appear to be a stable six votes to strike down any expenditure limits for a long time to come.

Contribution Limits

The bulk of the analysis in the opinions deals with Vermont 's low contribution limits. Like the expenditure limits, these were struck down by the same 6-3 vote. The plurality (Justice Breyer, joined by Chief Justice Roberts and Justice Alito) laid out the analysis from Buckley that contribution limits do not represent such a grave infringement of First Amendment rights as expenditure limits, but that they nonetheless burden associational freedom to some degree, and thus must be "'closely drawn' to match a 'sufficiently important interest.'" [38] The opinion also expressed that the Court must have reservations about contribution limits so low that they "magnify the . . . 'advantages of incumbency and thereby insulat[e] legislators from effective electoral challenge.'" [39] The plurality used this concern and Buckley 's exhortation that contribution limits may not be so low as to prevent candidates' "effective advocacy" [40] to support the argument that under current precedent, there is a constitutionally mandated line below which legislatures may not enact contribution limits. [41]

The plurality thus institutes a two-part test. Ordinarily, deference to the legislature is appropriate. [42] However, if a judicial determination is made that, due to the existence of certain "danger signs," the contribution limits in question are at the "outer limits" of constitutionality, then careful examination of the statute's tailoring is appropriate. [43]

In determining whether there are constitutional "danger signs," the plurality points to the facts that Vermont's limits are the lowest in the nation, they are much lower than anything the Court had previously upheld, they work on an election-cycle basis (thereby encompassing both primary and general elections under the single limit, whereas most contribution limits work only on a per-election basis, treating primaries separately), and they limit political parties and political committees to the same contribution amounts as individuals. [44] Notably, the plurality makes no claims about the exclusivity of this list of possible "danger signs," only making the point that these are sufficient "danger signs" to trigger the tailoring analysis in this case. [45]

Finally, the plurality addresses the tailoring analysis. As with the "danger signs" inquiry that potentially triggers the tailoring analysis, the Court again refuses to draw any bright lines or give a relatively exhaustive list of factors to examine, instead putting forth five factors that, together, are sufficient to show that these specific contribution limits fail the tailoring analysis. [46] The five factors are (1) that the record suggests that the contribution limits will have a significant negative impact on challengers' ability to raise funds; [47] (2) that political parties are subject to the same contribution limit as individuals, possibly harming some associational rights that parties exist to exercise; [48] (3) that the low contribution limit combined with the failure to exempt incidental expenses incurred by volunteers will quite possibly prohibit some legitimate political volunteer activity protected by associational rights; [49] (4) that the limits are not adjusted for inflation, putting the burden on legislators to fix the limits as they become clearly too low, which the legislators will have a personal disincentive to do, benefiting from the limits due to their incumbency; [50] and (5) the absence of any special justification for such low limits. [51]

The plurality's final argument is that because the contribution limit scheme is not susceptible to judicial severance of unconstitutional provisions, the entirety of Act 64's contribution limits are struck down, allowing the Vermont legislature to rewrite it. [52]

In his separate concurrence, Justice Kennedy gives a nod to the plurality's presentation of evidence that Vermont 's contribution limits are too low, but adheres to his position in Shrink that even much higher limits are too "stifling." [53]

Justice Thomas, joined by Justice Scalia, first makes the case that Buckley should be overturned to the extent that it treats contribution limits more leniently than expenditure limits. [54] He then attacks the plurality's test as an insufficient rule of law upon which states may rely when regulating campaign finance. [55] First, he argues that the "danger signs" test reduces to an inquiry of whether the limits are low relative to other states' limits and limits previously considered by the Court, which are both irrelevant under Buckley. [56] Next, he argues that the effects on volunteers and the failure to index the limits with inflation are just two more ways of saying that the contribution limits are low, [57] that the restriction on contributions by political parties is itself unconstitutional, [58] that all contribution limits (not just low limits like Vermont's) harm challengers impermissibly, [59] and that constitutional analysis has nothing to do with a state's ability to justify why it is different from the other states. [60] He concludes by agreeing that the contribution limits are unconstitutional under Buckley, but argues that the plurality's flawed test is evidence that Buckley is unworkable as a standard and should be overruled. [61]

In dissent, Justice Souter, joined by Justices Stevens and Ginsburg, argues that there is no significant difference between the contribution limits in Vermont and the contribution limits previously upheld by the Court. [62] In particular, Souter purports to follow the Shrink test of determining whether the limits are so low as to "'drive the sound of a candidate's voice below the level of notice, and render contributions pointless.'" [63] This test, and, indeed, an examination of Vermont 's limits under the analysis of Shrink is conspicuously absent from the plurality opinion.

Souter then concludes that due to the low cost of campaigning in Vermont and Vermonters' perceptions that contributions exceeding the limits are high, in addition to the evidence that both candidates in the Burlington mayoral race were able to mount effective campaigns under the contribution limits, Vermont 's contribution limits do not raise any concerns under the Court's campaign finance jurisprudence. [64] In part III of his opinion, Souter denies that such a limit on volunteers' independent expenditures significantly burdens their associational interests, dismisses the failure of the legislature to index the limits with inflation as an issue not before the Court until inflation makes the law obsolete, and denies that political parties deserve any higher contribution limits under the Court's jurisprudence. [65]

For the time being, the lower courts must follow Justice Breyer's plurality opinion on contribution limits. This is because, if the justices themselves follow the opinions they have joined, any contribution that fails the plurality's analysis will be struck down by at least the same six votes as the Vermont contribution limits, while any limits that pass the plurality's analysis would presumptively be supported by the three dissenters as well as the plurality, resulting in six votes to uphold. In any event, lower courts remain bound by Buckley and Shrink unless and until the Supreme Court choose to revisit these precedents. Because the plurality purported to leave its precedents undisturbed, at least for the time being, the controlling law as a formal matter remains those precedents as well as the plurality's new gloss on how to apply those precedents in particular cases.

In practice, however, the plurality's analysis is likely to prove difficult for lower courts to follow, at least in any predictable way. The plurality gives only examples of factors that, taken together, cause the Vermont limits to fail the test, with little guidance as to what other factors, if any, might be relevant. Thus, the issue is likely to become before the Court again before long, as the lower courts struggle to find a workable standard.

Also, it is notable that the plurality does not use the test from Shrink that contribution limits are presumptively valid under Buckley unless they are so low as to "drive the sound of a candidate's voice below the level of notice, . . . render[ing] contributions pointless," [66] even though Justice Breyer himself joined the majority in Shrink. They instead rely solely on Buckley and Breyer's own concurrence in Shrink qualifying legislative deference on the assumption that there is no risk that legislators are attempting to "insulate themselves from effective electoral challenge." [67] This may be a significant step back from the deference that has previously been afforded to legislative judgments regarding contribution limits, and it may have been the price that Breyer was forced to pay to win the other two votes for his plurality.

Of course, the controlling status of Breyer's plurality is contingent on the willingness of a majority on the Court to continue leaving Buckley undisturbed. If the Court were to reconsider Buckley down the road, then all would depend upon what Justices Alito and Kennedy, as well as Chief Justice Roberts, would ultimately decide in that situation. Although one can speculate about this, based on the evidence from Randall itself, as well as otherwise, only time will truly tell whether the Randall plurality accurately anticipates the future position of the Court regarding contribution limits.

Rebuttable Presumption of Coordination

Although this was one of the original Questions Presented in the petition for certiorari, [68] none of the justices in the majority reached the question, since they all found both the contribution and expenditure limits unconstitutional. [69] Justice Souter, joined by Justices Stevens and Ginsburg, did reach the question, as they would have upheld the contribution limits and remanded on the issue of the expenditure limits. However, he lightly brushes the concern aside, as the Court must accept Vermont 's characterization of the presumption as shifting the burden of production only, not the burden of persuasion. [70] Viewed in this light, the presumption is not much of a burden at all. [71]

Conclusion

Scholars, advocates, and other others have already begun to debate the meaning and significance of Randall. This debate is likely to take many twists and turns before there comes to be any settled understanding of Randall and its implications-if, indeed, such a settled understanding ever occurs. Just as Buckley itself has been reinterpreted in every subsequent campaign finance case of major significance, and just as those other intermediate cases (like Shrink ) have also been reinterpreted as new cases come along, so too is Randall not a static entity. Its meaning will surely shift whenever the Supreme Court next considers a campaign finance case, and even in the interim Randall may remain something of a moving target as lower courts and commentators take their turns tugging and pushing it in different directions.

[1] Randall v. Sorrell, No. 04-1528 ( U.S. 2006).

[2] Randall v. Sorrell, No. 04-1528, Plurality Opinion ( U.S. 2006) (slip op.).

[3] Randall v. Sorrell, No. 04-1528, Alito, J., concurring in part and concurring in the judgment ( U.S. 2006) (slip op.).

[4] Randall v. Sorrell, No. 04-1528, Thomas, J., concurring in the judgment ( U.S. 2006) (slip op.).

[5] Randall v. Sorrell, No. 04-1528, Souter, J., dissenting ( U.S. 2006) (slip op.).

[6] Randall v. Sorrell, No. 04-1528, Stevens, J., dissenting ( U.S. 2006) (slip op.).

[7] See generally Vt. Stat. Ann. tit. 17, §§ 2801-2883 (2002).

[8]Vt. Stat. Ann. tit. 17 § 2805(a) (2002).

[9]Id. at § 2805a(a).

[10]Id. at § 2805a(c).

[11]Id. at §§ 2809(a)-(b).

[12]Id. at § 2809(c).

[13]Id. at § 2809(d).

[14] Landell v. Sorrell, 118 F.Supp.2d 459 (D. Vt. 2000).

[15] Buckley v. Valeo, 424 U.S. 1 (1976).

[16] Landell I, 118 F.Supp.2d at 463-464.

[17] Landell v. Sorrell, 382 F.3d 91 (2004).

[18] Id. at 97-98.

[19] See Petition for a Writ of Certiorari, Randall v. Sorrell, No. 04-1528 ( U.S. 2006).

[20] See Response and Partial Opposition to Petitions for Writs of Certiorari, Randall v. Sorrell, No. 04-1528 (U.S. 2006) and Respondent-Intervenors Brief in Response and Partial Opposition to Petitions for Writs of Certiorari, Randall v. Sorrell, No. 04-1528 (U.S. 2006)..

[21] Randall, Plurality Opinion at 8.

[22] Id. at 9-10.

[23] Id. at 10-11.

[24] Randall, Alito, J., concurring in part and concurring in the judgment. See also Randall, Plurality Opinion at 1.

[25] Randall, Kennedy, J., concurring in the judgment at 2.

[26] Randall, Thomas, J., concurring in the judgment at 3.

[27] Randall, Souter, J., dissenting at 2-3.

[28] Id. at 3-4.

[29] Randall, Stevens, J., dissenting at 1-2.

[30] Id. at 9.

[31] See generally, Randall, Alito, J., concurring in part and concurring in the judgment.

[32] Wisconsin Right to Life v. Fed. Election Comm'n, 126 S.Ct. 1016 (2006).

[33] Christian Civic League of Maine v. Fed. Election Comm'n, No. 05-1447, ( U.S. 2006).

[34] See McConnell v. Fed. Election Comm'n, 540 U.S. 93, 203-209 (2003) (upholding ban on corporate and union "electioneering communications"). See also Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990) (upholding ban on corporate independent expenditures in support of or opposition to candidates).

[35] Randall, Plurality Opinion at 11.

[36] Randall, Thomas, J., concurring in judgment at 3.

[37] Randall, Kennedy, J., concurring in judgment at 1-2.

[38] Randall, Plurality Opinion at 12 (quoting Buckley, 424 U.S. at 25).

[39] Id. at 13 (quoting Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 403-404 (2000) (Breyer, J., joined by Ginsburg, J., concurring)).

[40] Buckley, 424 U.S. at 21.

[41] Randall, Plurality Opinion at 14.

[42] Id.

[43] Id. at 14-15.

[44] Id. at 15-19.

[45] Id. at 18-19.

[46] See Id. at 19.

[47] Id. at 19-22.

[48] Id. at 22-25.

[49] Id. at 25-27

[50] Id. at 27.

[51] Id. at 27-28.

[52] Id. at 28.

[53] Randall, Kennedy, J., concurring in judgment at 2.

[54] Randall, Thomas, J., concurring in judgment at 2-3.

[55] Id. at 4.

[56] Id. at 5.

[57] Id. at 6.

[58] Id.

[59] Id. at 7.

[60] Id. at 8.

[61] Id. at 9-10.

[62] Randall, Souter, J., dissenting at 4-5.

[63] Id. at 4 (quoting Shrink, 528 U.S. at 397).

[64] Id. at 5-8.

[65] Id. at 8-9

[66] Shrink, 528 U.S. at 397.

[67] Id. at 402 (Breyer, J., concurring).

[68] See Petition for a Writ of Certiorari, Randall v. Sorrell, No. 04-1528 at i ( U.S. 2006).

[69] See Randall, Plurality Opinion at 29.

[70] Id. at 9-11.

[71] Id.