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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.

Weekly Comment

The Importance of Randall's Indecisiveness

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June 27, 2006

Some proponents of campaign contribution limits, including the editorial page of the New York Times, are trying to spin yesterday's Supreme Court decision their way. They point to the fact that the Court's two new members, Chief Justice Roberts and Justice Alito, joined Justice Breyer's opinion, which accepted the general legitimacy of contribution limits but found Vermont's peculiar mix of restrictions to be beyond the pale. They think this means that in a future case, Roberts and Alito (or at least one of them) will join Breyer and the Court's three most liberal members-Stevens, Souter, Ginsberg, who would have upheld even Vermont's law-to sustain strict contribution limits that lack Vermont's idiosyncratic set of defects.

Perhaps, but I wouldn't bet on it.

To be sure, Roberts and Alito did not join with Justices Thomas and Scalia, who yesterday reconfirmed their view that all contribution limits are invalid. But it would have been extraordinary if Roberts and Alito had embraced that view. The case did not require a commitment to that position, and as newcomers to the Court the prudent course was to leave their options open.

More significant is the fact that the new Justices did not unconditionally endorse the Court's existing jurisprudence on the topic of contribution limits. Justice Alito, for one, wrote a separate opinion just to say that his acceptance of the foundational campaign finance precedent, Buckley v. Valeo, was contingent on the fact that the litigants had not offered a basis for reexamining that precedent. To my mind, Alito's explicitly conditional acceptance of Buckley signals his willingness to consider joining with Thomas and Scalia to overrule Buckley's general tolerance of contribution limits, should a case come to the Court in which a party presents an argument for this position.

Roberts did not join Alito's separate statement or author one of his own. But Breyer's opinion was written in a way that he did not have to. Breyer's opinion noticeably did not rely on the Court's recent reaffirmation of the general legitimacy of contribution limits, Nixon v. Shrink Missouri Government PAC from 2000, but instead depended exclusively on the 1976 Buckley precedent. To be sure, Breyer's opinion cited Shrink and distinguished it factually, but that is a far cry from invoking its reasoning as the basis for yesterday's decision.

See the beginning of Part III.B of Breyer's opinion, pages 13-14, the critical passages where Breyer announces the law to be applied to Vermont 's contribution limits. There he states: "Following Buckley," "as Buckley stated," "as Buckley acknowledged." The absence of Shrink from these passages is telling. Indeed, Justice Souter's dissent chided Breyer for failing to follow Shrink.

Breyer's opinion, in effect, says no more than that operating with the longstanding Buckley framework yields the conclusion that Vermont's law is invalid. Roberts therefore remains free to say in a future case, "I joined Justice Breyer's opinion in Randall on the assumption that Buckley was correct regarding contribution limits, an assumption that was not called into question by that case."

Roberts, in other words, can say down the road, "My acceptance of Buckley on the issue of contribution limits was contingent in the same way that Justice Alito's was." Looking back on Randall from the vantage of that future case, one might retort, "But Chief Justice Roberts did not say so at the time." He could respond, however, that he did not have to. Indeed, Justice Alito's opinion made it unnecessary for him to do so, because Justice Alito already showed how joining Justice Breyer in Randall did not commit one to embracing Buckley unconditionally on the issue of contribution limits.

Nor does the fact that Roberts joined Breyer in invoking stare decisis to confirm the validity of Buckley with respect to expenditure limits mean that Roberts must accept the validity of Buckley regarding contribution limits. The Court was explicitly asked to revisit the expenditure side of Buckley in Randall. Roberts did so and found it sound. That conclusion, however, hardly compels him to believe that Buckley is equally sound on the subject of contribution limits, a matter not in play in Randall.

There are, it is true, passages in Breyer's opinion that suggest a more affirmative endorsement of the constitutionality of contribution limits as a rule and, thus, could be read as committing Roberts, or even Alito who joined these passages, to that endorsement. "Th[e] sort of problems [affecting the Vermont law] are unlikely to affect the constitutionality of a limit that is reasonably high." (Page 26.) "We also understand the legitimate need for constitutional leeway in respect to legislative line-drawing." (Page 28.) These passages seem to go beyond a reliance on Buckley as precedent, towards expressing a view that an independently correct understanding of the Constitution would accept the validity of most contribution limits.

But I would be cautious against reading too much into these words. Alito, after all, saw no inconsistency between signing on to them and holding open the possibility of overruling Buckley down the road. And as for Roberts' relationship to these particular passages, one must add the consideration that he, as the new Chief Justice who assigned the case to Breyer, might be especially reluctant to distance himself publicly from what Breyer wrote, since no other Justice in the majority was willing to join Breyer's opinion in full.

We can presume that, in the almost four months drafting process since the oral argument, Chief Justice Roberts exacted some concessions from Breyer as the price of his joining the opinion. The absence of Shrink as controlling authority may have been one such prerequisite. So, too, may have been the notable omission of the so-called "equality rationale" as providing any justifiable basis for campaign finance regulations, a rationale that Breyer had invoked in his own previous writings on campaign finance. In any event, when examining the final draft of Breyer's opinion, as it stood ready for public release, Chief Justice Roberts may have asked himself: "Is there anything in here that I absolutely need to disavow today in order to keep my options open in the future, including the option of joining with other members of the Court to overrule Buckley on the issue of contribution limits?" "No" is the answer that the Chief Justice honestly could have given himself to this question, and that fact alone provides sufficient basis for being cautious about the implications of his joining Breyer's opinion without submitting a separate statement of his own.

Contrast, moreover, Justice Breyer's actual opinion in Randall with a very different one he might have written. Suppose Justice Breyer had written: "Six years ago, in Shrink Missouri this Court expressly reaffirmed that Buckley was correct to uphold contribution limits unless they are excessively low, and today we once again confirm the correctness of what we said in both Buckley and Shrink." That hypothetical opinion would have heralded an intent to commit the Court in the future to continuing its past practice of upholding contribution limits in all but the rarest of cases. "No change of doctrine, just its ongoing application" would have been an appropriate headline for this hypothetical opinion. Had Roberts and Alito joined an opinion of that nature, they would have put themselves on record as rejecting the Thomas/Scalia view that Buckley should be overturned in this respect. Indeed, if Roberts and Alito had joined that kind of opinion, we can well imagine that the three dissenters-Stevens, Souter, and Ginsburg-would have figured out a way to join it also, although obviously only in part, so that they could say that a majority of the Court authoritatively embraced the continuing validity of Buckley and Shrink as setting forth the correct rule regarding contribution limits.

But that did not happen, presumably because both Roberts and Alito wanted to keep all their options open. They weren't going to sign on, with Thomas and Scalia, to a repudiation of Buckley on the issue of contribution limits. But they also weren't going on to sign on to an acceptance of Buckley as correctly decided on this issue. Instead, they were willing to accept Buckley temporarily as longstanding precedent on this issue, but precedent that is subject to reconsideration in a properly presented case.

Thus, the significance of Randall is that it leaves the Court in limbo on the issue of contribution limits. When faced directly with the question whether Buckley should remain good law on this point, either Roberts or Alito (or both) may decide to adhere to that precedent-and join with Breyer and the three Randall dissenters to form a Court for that position. That day, should it come to pass, would indeed be a great victory for proponents of campaign finance regulation.

But it is at least as plausible that, when confronted squarely with the continuing validity of Buckley on the issue of contribution limits, Roberts and Alito join with Thomas and Scalia to replace Buckley's leniency on contribution limits with a much more stringent test. Justice Kennedy, who in his own separate opinion in Randall reiterated his significant doubts about the contribution side of Buckley , might sign on to this position as well. Roberts and Alito, and Kennedy, need not go all the way to the Thomas/Scalia position of believing all contribution limits to be invalid. Rather, it would be a repudiation of Buckley if a future case says that contribution limits are subject to strict scrutiny and are invalid as the norm, with the exceptional case being one in which they are upheld (the inverse, in essence, of the Shrink Missouri position). An opinion repudiating Buckley in this way might get five votes, to make it the authoritative position of the Court, with Thomas and Scalia adding a concurrence to say only that they would go even further.

At this point, given the indeterminacy of Randall, we can only guess which way the Court will move in its next contribution limits case. If the Court next faced, let's say, a law that limited contributions from individuals to candidates to $500 and from parties to candidates to $2500-each limit per election (not per cycle) and adjusted for inflation, and each explicitly exempting the incidental expenditures of campaign volunteers, thereby avoiding the particular problems of Vermont's law-would there be five votes on the Court to uphold this law? Who knows? Indeed, who knows whether there would be five votes to uphold the same $1000 limit that the Court upheld in Shrink Missouri? The pointed unwillingness of Roberts and Alito to sign onto an opinion that relied on Shrink necessarily casts that precedent in doubt.

Perhaps it is somewhat paradoxical, but Randall is hugely important precisely because it resolves so little. Its indecisiveness indicates that the Court is in a transitional period between the settled understanding of the Shrink Missouri era (which, despite its brevity, yielded the important McConnell v. FEC decision upholding the constitutionality of the McCain-Feingold law) and whatever new settled understanding comes next. Randall reveals that we can no longer take as a given the Court's precedents on contribution limits. Instead, they are open to reexamination, and that in itself is a major development in the field of campaign finance regulation.

These precedents may yet be reaffirmed. But that is a victory that their fans will need to win in the future. As things stand today, one day after Randall was released, that victory is far from secure. The situation now is very different than if Randall itself had reaffirmed the validity of these precedents and all that remained would be applying them to future facts. Instead, the precedents themselves are contestable, and a valiant effort at spin control cannot negate this truth.