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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

Majority of Court Skeptical of Vermont Campaign Finance Law

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February 28, 2006, 12:02 p.m.

Justice Alito asked only one question late in the argument. Directed at one of the attorneys supporting Vermont's law, his question was, assuming the state's spending limits were invalidated, whether under the contribution limits candidates would be able to raise enough money to run effective campaigns. The attorney, Brenda Wright of the National Voting Rights Institute, answered yes, but Justice Alito asked the question again, to make sure she understood that the predicate of the question was that the state's very strict contribution limits would be operating in a circumstance of unrestricted spending. She repeated her answer, but one suspects it did not convince him.

If this impression of Justice Alito's position in the case is accurate, it appears that there are at least five votes on the Court to invalidate both the spending and contribution limits. But his vote might not be necessary for that result.

Perhaps the most surprising development of the morning, although not entirely unpredictable based on his past writings, was Justice Breyer's evident discomfort with the Vermont law. Several times he made clear his concern that the state's contribution limits were too low. At one point, he indicated that the contribution limits in the Shrink Missouri PAC precedent were about as low as he could tolerate. As for the state's spending restriction, he asked why he was not bound by Buckley even if he might believe the case wrongly decided.

One possibility to look for when the Court's decision is announced is whether Justice Breyer writes to justify invalidating the Vermont law on relatively narrow grounds, in the hope of leaving the seed for upholding somewhat different campaign finance regulations in the future. Whether he is given the opportunity to attempt to forge this sort of consensus depends probably on whom Chief Justice Roberts assigns to write the opinion.

For his own part, Chief Justice Roberts was evidently hostile to Vermont's defense of its law. At one point, he sharply asked why the state's brief said that the votes of elected representatives were "determined" by the campaign money they received. When the state's attorney general responded that the record supported the fact that members of the legislature acknowledged being "influenced" by campaign contributions, Chief Justice Roberts responded by saying that the brief then should have used the word "influenced" rather than "determined."

He also asked why there had been no prosecutions for political corruption in Vermont if this pattern of vote-selling by members of legislature were such a problem. And he also suggested that voters could vote the corrupt, or potentially influenced, politicians out of office if they were concerned about the integrity of the legislature.

Chief Justice Roberts' first question, directed at James Bopp, the attorney for the parties opposing the Vermont law, did concern the relevance of precedent on the contribution side of the case. He asked how this case differed from the contribution limit in Shrink Missouri PAC. Bopp's answer was that this limit was lower in dollar terms, as well as there being less evidence of corruption in the record to support it, and more evidence of the harm this limit would cause to effective campaigns. Based on this exchange, we can perhaps anticipate an opinion that invalidates Vermont's low limit while nonetheless accepting Shrink Missouri as valid precedent.

Justice Kennedy was an active questioner, although he waited a bit before jumping into the conversation. The general thrust of his questions directed at Mr. Bopp was to assume that there was a problem with corruption; did that still justify the kind of limits on First Amendment activity that the Vermont law imposed? In other words, he seemed to suggest that there was no need to resist the factual predicate that motivated this law; but he seemed to differ with the law's defenders as to the legal conclusion. Like Chief Justice Roberts, he seemed to believe that the solution to the problem was to vote corrupt politicians out of office and prosecute them for their abuse of the public's trust. Moreover, in questioning the defenders of the law, Justice Kennedy made clear his fear that the campaign spending limits would stifle speech that is entitled to enter the political marketplace under the First Amendment.

One early indication that the Vermont law was in a precarious position was that the Justices most disposed to support the law - Stevens, Souter, and Ginsburg - were clearly looking for a way to send the case back to the lower courts without a major ruling on the spending limit question. And even some of them, Justice Souter in particular, were quizzical about the details of the law's stringent contribution limits.

More analysis to follow. But this sums up an initial impression of the argument: Vermont is very likely to lose on both the spending and contribution limits, but it is important how broadly or narrowly the Court will write its ruling.

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