Supreme Court Muddies Campaign Finance Waters
Yesterday’s Supreme Court “decision” in Randall v. Sorrell, the Vermont campaign finance case is one of those collections of concurrences, dissents and opinions that come along every year at the end of the term, the kind that must drive reporters who cover the Court up the wall.
There were six separate opinions in this case: Justice Breyer announced the Court’s judgment with an opinion joined by Chief Justice Roberts and partly by Alito; Alito wrote his own opinion “concurring in part and concurring in the judgment”; Kennedy had his own simply concurring in the judgment, with Scalia and Thomas sharing another. Justice Stevens wrote a dissenting opinion, as did Souter, who was joined by Ginsburg and (only partly) by Stevens. Confused yet?
Breyer, Roberts and Alito (combined with Scalia, Thomas, and Kennedy) held that spending limits placed on candidates by Vermont law were unconstitutional infringements on free speech, sticking with the formula first laid out in 1976′s Buckley v. Valeo. On the contribution limits side, the three-member plurality argued that the low limits enacted by Vermont are too low. As Linda Greenhouse writes in her excellent recap of the case today, “Justice Breyer’s opinion was so nuanced, applying a two-part test to the decision of how low is too low, with five factors making up the second part of the inquiry, as to leave the court’s next move uncertain.”
Breyer and Roberts alone (Alito having left their opinion for this part) argued that the stare decisis principle controlled their thinking on the approach to Buckley. Breyer:
“Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional, and requires “special justification.” This is especially true where, as here, the principle has become settled through iteration and reiteration over a long period of time. We can find here no such special justification that would require us to overrule Buckley. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles.” Interesting, that (i.e. just substitute Roe for Buckley) … and possibly quite telling that Roberts would sign on and Alito decline to do so.
Justice Kennedy’s opinion concurring in the judgment makes clear his uneasiness with how for the Court has waded into the morass of campaign finance regulation: “The universe of campaign finance regulation is one this Court has in part created and in part permitted by its course of decisions. That new order may cause more problems than it solves. On a routine, operational level the present system requires us to explain why $200 is too restrictive a limit while $1,500 is not. Our own experience gives us little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance.”
Justices Scalia and Thomas would overrule Buckley and throw out all restrictions on contributions and spending as unconstitutional: “I continue to believe that Buckley provides insufficient protection to political speech, the core of the First Amendment. The illegitimacy of Buckley is further underscored by the continuing inability of the Court (and the plurality here) to apply Buckley in a coherent and principled fashion. As a result, stare decisis should pose no bar to overruling Buckley and replacing it with a standard faithful to the First Amendment.”
On the other side, Justices Souter and Ginsburg (joined partly by Stevens) would have upheld the contribution limits as not being too low, and they would have remanded the question of expenditure limits for more examination (centering on the question of how much time candidates must spend fundraising). “… the constitutionality of the expenditure limits was not conclusively decided by the Second Circuit, and I believe the evidentiary work that remained to be done would have raised the prospect for a sound answer to that question, whatever the answer might have been. Instead, we are left with an unresolved question of narrow tailoring and with consequent doubt about the justifiability of the spending limits as necessary and appropriate correctives. This is not the record on which to foreclose the ability of a State to remedy the impact of the money chase on the democratic process.”
And finally, Justice Stevens’ dissent is the mirror opposite of that offered by Scalia and Thomas. He would overrule Buckley in order to allow expenditure limits as well as contribution limits. This draws on Stevens’ long-held view that money happens to be property, and does not necessarily equal “speech” under the First Amendment. This is a view with which I am, in principle, inclined to agree – but of course it depends on the specifics. Stevens gets in the best jabs about the Court’s decision in this case, which he calls “today’s cacophony” (not at all off the mark, clearly). Most interestingly, it is Stevens, not Scalia/Thomas, who cites the Framers in his opinion, attempting that dangerous divination act of “what would they do?”
“I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities. I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress’ authority. And they surely would not have expected judges to interfere with the enforcement of expenditure limits that merely require candidates to budget their activities without imposing any restrictions whatsoever on what they may say in their speeches, debates, and interviews.”
This is, for sure, only the first of many muddled campaign finance cases from this new Court. Without a sharp controlling authority, there will be countless cases coming down the pike in which the Court will be asked to determine “how low is too low?” when it comes to contribution limits, and you can be sure that they’ll also be asked to revisit the question of just what it would take to justify limiting expenditures. “Today’s cacophony”, given the wide range of views on display here, seems unlikely to quiet anytime soon.
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8 Responses to “Supreme Court Muddies Campaign Finance Waters”
I agree with you that money is more like property than it is like speech. I suspect that some of the Framers would have been inclined to regulate campaign contributions, out of sheer distaste at the spectacle of having to grub for such money themselves as from any principle. Still, I don’t see an excellent way to regulate campaign money except by sunshine. But even full disclosure won’t cure politicians of accepting influence money if they need it badly enough to get elected.
I think a more successful route would be the supply side, as it were: give them a certain amount of free t.v. and radio time to make their pitch. To be sure, politicians would take the free time, and also become adept at pouring money into other forms of advertizement like direct mail and email. Still, if the law cut out the greatest campaign cash vampires, perhaps it would be easier to get politicians to comply with the spirit of other campaign finance laws.
Gruntled said: I agree with you that money is more like property than it is like speech.
Absolutely! Money is a transient miens to an end.
But did we who are aware, not only expect, but predict that this hand picked group of supreme court cherries to muddy the waters; to assist the other two branches of our extremist right wing government, throwing in even more deception, more distraction, to further confuse the sheep in our population?
I guess the roberts and the supremes think “we” believe that people want to spend millions, tens of millions, even hundreds of millions, depending on the office sought, to get jobs paying up to a few hundred thousand dollars per year.
There should be strictly enforced limits as to how much a political candidate can spend on campaigns, at the city, county(parish), state, and federal levels….for dozens of reasons..but specifically for ONE reason.
That reason being to not just level the money playing field, but lower it, to where any John Doe political candidates that isn’t filthy rich and doesn’t have access to the filty rich and PAC’s, has at least a fair opportunity to run for office and have a venue where their voices are heard.
Another way I think would help tremendously would be to limit political candidates AIR TIME spending to local and national public radio and television, that currently have to beg and borrow in order to remain in existance. The PBS could utilize monies spent for political ads to do wonders in the educational area broadcasting that in part PBS programming is being steered with large private advertiser bias.
This in lieu of feeding the greed driven for profit commercial television corporations and stations already owning and influencing many politicians; that jam mud slinging bias down our throats for months on end with political advertisements that have sunk into pits of political revulsion.
Mine is just one idea…and I’m sure many will disagree…but it is an idea.
Elections should be funded by the state equally for each candidate. No private monies should be allowed.
I think our concern should be that those with the most money are generally being elected, rather than those whom are the most interested in representing their constituency.
Candidates and their loyalties are simply bought by those with the most money to pay for confusing, dishonest, and, expensive propaganda. This fact is not lost on foreign nationals and foreign powers whom may harbor agendas not in the best interest of our citizenry.
We open ourselves up to the possibility that a totalitarian entity may, through the use of dishonest propaganda, gain power over all three branches of our government by legitimate election and thus be in position to legitimize their totalitarian goals. The checks and balances do not necessarily have to work when there is only one party in power.
I emphasize that if the United States government can be bought, it will be.
eff that whenever i get seriously rich i’m buying out as many politicians as possible.
Buffet and Gates donate to charities. Bush and Cheney are plutocrats who masquerade as populists, the Twin’s will never work for a living. Must save Paris Hilton’s fortune. Checkout theBullmooses take on Rove’s roundabout comparison of Bush to TrumanTR.
C.Prez said:
eff that whenever i get seriously rich i’m buying out as many politicians as possible.
Luckily for you old chap is that some of them can be bought reeeeeeeeaaaaaal cheap.
We are all, each and every one of us, private citizen and politician alike…are whores.
It like the guy in the bar said to the young sexy blond…”will you screw me for a million dollars?” he asks..”sure” she said…”will you screw me for a dollar then”…”of course not” said the sexy blond, “what sort of girl do you think I am?”
“Well we’ve established what you are and are now just haggling over the price.”
If you limit the amount of money a campaign can take in then outside groups, or wealthy individuals, take over and do ads for or against the candidates. The candidate looses control over the message he/she wants to get out, the outsiders set the agenda and tone of the election. Candidates can even get blind sided by groups that are in “support� but are so distasteful that their help is not wanted, like getting support from the KKK. Keep it simple, let them take the money but every individual donor and the amount donated is pubic. OR, let the candidate take in as much as they want and tattoo the names of the donors on their body, sort of like sponsor advertising on a stock car, then we will know who paid for what legislation.
All commercial entities MUST list on their product and product advertising the exact amout donated to each party over the last ten year period…and how much they INTEND to donate next election…in bold print….Red Bold Print….In English and Spanish….and Madarin Chinese….and on the backs of the suits of the top ten company executives….and in twice a year direct mail mailings to every address in the world….on the internet in EVERY language on the planet….in Red….No tax deduction for Republican donations….or any other nazi group…