THE FIRST AMENDMENT STRIKES BACK

This morning, the Supreme Court announced its 6-3 decision in Randall v. Sorrell, 548 U. S. ____ (2006), invalidating Vermont's very restrictive campaign financing act. The best explanation of why the Vermont Act is unconstitutional comes from Justice Kennedy's concurrence (pdf at 38-40):

As the plurality notes, our cases hold that expenditure limitations “place substantial and direct restrictions onthe ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.” Buckley v. Valeo, 424 U. S. 1, 58–59 (1976) (per curiam); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 618 (1996) (principal opinion); Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985).

The parties neither ask the Court to overrule Buckley in full nor challenge the level of scrutiny that decision applies to campaign contributions. The exacting scrutiny the plurality applies to expenditure limitations, however, is appropriate. For the reasons explained in the plurality opinion, respondents’ attempts to distinguish the present limitations from those we have invalidated are unavailing. The Court has upheld contribution limits that do “not come even close to passing any serious scrutiny.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 410 (2000) (KENNEDY, J., dissenting). Those concerns aside, Vermont’s contributions, as the plurality’s detailed analysis indicates, are even more stifling than the ones that survived Shrink’s unduly lenient review.

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. On a broader, systemic level political parties have been denied basic First Amendment rights. See, e.g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 286–287, 313 (2003) (KENNEDY, J., concurring in judgment in part and dissenting in part). Entering to fill the void have been new entities such as political action committees, which are as much the creatures of law as of traditional forces of speech and association. Those entities can manipulate the system and attract their own elite power brokers, who operate in ways obscure to the ordinary citizen.
Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment.

The Court did not give any hint that it regretted its decision upholding federal campaign finance reform. On the other hand, as Justice Kennedy suggests, it is possible to read the decision as indicating that, in the future, restrictions on free speech will be subjected to stricter scrutiny than in the past.

Justice Thomas continues his assault on precedent -- though joined this time by Justice Scalia, who usually gives precedent more weight -- by arguing in his concurrence that the Court's CFR jurisprudence, starting with the Buckley case that first held that contribution limits are permissible, was wrongly decided and therefore not entitled to deference.

Although I agree with the plurality that Vt. Stat. Ann.,Tit. 17, §2801 et seq. (2002) (Act 64), is unconstitutional, I disagree with its rationale for striking down that statute. Invoking stare decisis, the plurality rejects the invitation to overrule Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). It then applies Buckley to invalidate the expenditure limitations and, less persuasively, the contribution limitations. 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. Accordingly, I concur only in the judgment.

I adhere to my view that this Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights. “[U]nlike the Buckley Court, I believe that contribution limits infringe as directly and as seriously upon freedom of political expression and association as do expenditure limits.” The Buckley Court distinguished contributions from expenditures based on the presence of an intermediary between a contributor and the speech eventually produced. But that reliance is misguided, given that “[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender’s message.” Likewise, Buckley’s suggestion that contribution caps only marginally restrict speech, because “[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support,” even if descriptively accurate, does not support restrictions on contributions. After all, statements of general support are as deserving of constitutional protection as those that communicate specific reasons for that support.

Accordingly, I would overrule Buckley and subject both the contribution and expenditure restrictions of Act 64 to strict scrutiny, which they would fail....

Even Buckley... v. Valeo, 424 U. S. 1 (1976) (per curiam), recognizes that contribution limits restrict the free speech of contributors, even if it understates the significance of this restriction.... An individual’s First Amendment right is infringed whether his speech is decreased by 5% or 95%, and whether he suffers alone or shares his violation with his fellow citizens. Certainly, the First Amendment does not authorize us to judge whether a restriction of political speech imposes a sufficiently severe disadvantage on challengers that a candidate should be able to complain....

[T]he plurality’s determination that this statute clearly lies on the impermissible side of the constitutional line gives no assistance in drawing this line, and it is clear that no such line can be drawn rationally. There is simply no way to calculate just how much money a person would need to receive before he would be corrupt or perceived to be corrupt (and such a calculation would undoubtedly vary by person). Likewise, there is no meaningful way of discerning just how many resources must be lost before speech is “disproportionately burden[ed].” Buckley, as the plurality has applied it, gives us license to simply strike down any limits that just seem to be too stringent, and to uphold the rest. The First Amendment does not grant us this authority. Buckley provides no consistent protection to the core of the First Amendment, and must be overruled. [Footnotes and citations omitted]

Campaign finance reform is always pro-incumbent, as Justice Thomas recognizes. It is therefore difficult to assess CFR as "left" or "right." Although almost all of the resistence to CFR came from the GOP, it is equally true that without maverick Republicans, CFR would never have passed. Here, Justice Kennedy, Justice Thomas and Justice Scalia are on the side of more freedom, Justices Souter, Ginsberg and, in part, Stevens, are on the side of more regulation. Perhaps the best that can be said of the rest of the Court is that they are pragmatic when it comes to freedom or regulation.

Posted by David Cohen at June 26, 2006 12:35 PM