How Much can a State Limit Campaign Fundraising?

Randall v. Sorrell

Here the Court considers the constitutionality of a Vermont statute limiting expenditures and contributions to political campaigns. The terms expenditure and contribution are defined broadly. Contributions from family, and volunteer work are not counted, but assistance from outside affiliated groups is. The District court found the expenditure limits and the limits on donations from a political party to be unconstitutional, but found the rest of the Act to be constitutional. The Circuit court found all of the contribution limits to be constitutional, and suggested that some of the expenditure limits might be constitutional, based on certain compelling interests (preventing corruption and limiting the time state officials spend raising money) on the part of the legislature and remanded the case for the District court to determine whether the Act was narrowly tailored to those interests.

Buckley v. Valeo held that a similar federal statute implicated “fundamental First Amendment issues.” The interest in preventing corruption or the appearance of corruption justified, for the Court, the limits on contributions but not on expenditures. The Court argued that expenditure limits, unlike contribution limits, necessarily reduce “the quantity of expression by restricting the number of issue discussed, the depth of their exploration, and the size of the audience reached.” Buckley has been a sound precedent that expenditure limitations are unconstitutional.

Respondents argue that experience has disproved assumptions made in Buckley, namely that contribution limits are a sufficient protection against corruption. They also suggest that Buckley did not consider the interest in limiting time spent on fund raising, though the Court finds sections of the Buckley opinion, and those of the lower courts, that do. Neither history nor case law has made Buckley a legal anomaly and stare decisis compels the rejection of respondents’ arguments to distinguish or overrule it. Nor have respondents shown that expenditure limits are the only way to prevent corruption (narrow tailoring).

The Court then considers the contribution limits in light of Buckley’s general support for such limits. The Buckley Court found that since the contribution limits before it were “closely drawn” and in support of a “sufficiently important” government interest, they were constitutional. The Court must consider here whether such limits “prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy,’” or significantly disadvantage incumbent challengers, and protect those interests by requiring that the statute be “closely drawn.” The Court begins by noting that the limits are essentially one twentieth of those in Buckley for the same sized district and constitute the lowest in the Nation (though it is pretty close in some areas). The limits are also (arguably) substantially lower than those upheld in Nixon v. Shink.

There are five reasons cited in support of the conclusion that the contribution limits are too restrictive. First, the limits would reduce the money available to incumbent challengers by between 18% to 53%. The limits would negatively impact the ability to target funding to competitive races. Petitioners focus on the average funding, which neglects the true force of the objection. This raises a reasonable inference that the limits are so low as to “pose a significant obstacle to candidates in competitive elections.”

Second, the application of these rules to political parties as well as individuals threatens the First Amendment freedom of association and thwarts the aims of those who donate money to a political party by prohibiting that party from donating more than $200 to a given candidate. Limits in Colorado that were similar in structure (but not in substance) reflected an effort to “balance (1) the need to allow individuals to participate in the political process by contributing to political parties that help elect candidates with (2) the need to prevent the use of political parties to ‘circumvent contribution limits that apply to individuals.’” The limits here give the “former consideration no weight at all.” (Emphasis in original). Third, the act counts volunteer expenses (travel, etc) in those limits, which discourages volunteers, thereby impeding free association. Fourth, the failure to adjust the limits for inflation only exacerbates the problems. Fifth, there is no evidence that corruption is any more serious in Vermont than anywhere else, and no special justification in this particular case. The Court is unwilling to sever provisions to make the statue constitutional because of the belief that more than a simple severance would be necessary.

Justice Alito writes separately to argue that the Court need not reach the question of reexamining Buckley because the respondents do not make any such suggestion.

Justice Kennedy writes separately to indicate his distaste for this aspect of developing law in general, and to point out that the problem at issue is as much a creature of law as it is a creature of social circumstances.

Justices Thomas and Scalia believe that Buckley provides insufficient protection to political speech. They believe that the erratic application of the Buckley framework justifies its replacement. They reject the distinction between expenditure limits and contribution limits, arguing that the two equally infringe on the First Amendment. Justice Thomas would employ strict scrutiny, which the law fails. “Buckley’s limited scrutiny of contribution limits is ‘insusceptible of principled application’ and accordingly is not entitled to stare decisis effect.” The opinion reads the plurality to set out a two step test: (1) look for “danger signs” and (2) use “independent judicial judgment” to “review the record independently and carefully with a view to the statute’s ‘tailoring,’ that is, toward assessing the proportionality of the restrictions.”

The “danger signs” here are (1) the limits are set per cycle, not per election; (2) the limits apply to contributions from parties as well as individuals; (3) the limits are the lowest in the Nation; and (4) the limits are below those previously upheld. The first advantages incumbents, and the second bears no relation to the compelling interests at stake. The issue of inflation and the inclusion of volunteer expenditures merely exacerbate whatever constitutional violation there may be. So, the basis on which the Act moves from suspicious to unconstitutional is that the restrictions affect a substantial portion of the money given to challengers, and because the limits are lower than anywhere else in the country. As to the first issue, Justice Thomas argues that there is a violation whether speech is infringed 5% or 95%, and as for the second, Justice Thomas simply rejects this as an appropriate way to evaluate the First Amendment. Therefore, since this is an unworkable rule and because it provides too little protection for the First Amendment, Justice Thomas would overrule Buckley and prohibit all such limitations.

Justice Stevens would overrule Buckley. First of all, Buckley upset the previous concept that such laws were limitations on actions, not on speech. Second, Buckley has not created the kind of reliance that stare decisis aims to protect. Stevens explains that he has been convinced by Justice White’s argument that you cannot equate money and speech. While Stevens accepts that some money is required he believes that these restrictions are more of the time, place and manner variety, and would require only a rational basis. He then explains how speech can be had without money, and endorses the importance of “freeing candidates from the fundraising straightjacket.” “Additionally, there is no convincing evidence that these important interests favoring expenditure limits are fronts for incumbency protection.”

Stevens continues, citing Georgia v. Randolph (one of my favorites), “the historical context is ‘usually relevant but not necessarily dispositive’” he argues that the Frames would be appalled by the impact of funding practices on legislative efficiency.

Justices Souter and Gisburg are of the opinion that the Buckley Court did not squarely consider the argument regarding the interest in freeing legislators of massive amounts of fundraising and that Vermont does not ask that Buckley be overruled, but rather that its rule be applied. Justice Souter also points out that the limits set out in the law are the product of public sentiment for the point at which funding becomes suspiciously large and that Vermont ranks 49^th in funding, largely because of low cost methods of campaigning.

The volunteer issue, Souter argues, will be a colossal nuisance, but it need not substantially limit volunteering. The fact that the law does not take account of inflation is rejected as an attack on the law, not as it is, but as it might some day be. As far as contributions from political parties are concerned, Souter argues that this cannot rationally invalidate the law, and that whether this is a matter for the courts is questionable. Finally, the unconstitutionality of the presumption that funds spent to the same end are coordinated is rejected because it requires only a minimal showing to rebut, and places no onerous burden on the party.