However strange might be the bedfellows made by politics, they have nothing on the bed mates produced by the U.S. Supreme Court’s campaign-finance jurisprudence.
After the Court’s divided ruling late last month in Randall
v. Sorrell, First Amendment advocates found themselves (though perhaps with noses pinched) embracing Justices Clarence Thomas and Antonin Scalia, a duo better known for the joy with which they limit free-speech rights. At the same time, these advocates have little choice but to turn away from Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg, who typically are thought to be the Court’s most vigorous defenders of the First Amendment.
This looking-glass world results primarily from the justices’ different views regarding the threat money poses to the integrity of elections. Stevens and his allies see the threat as significant and are willing to sacrifice First Amendment rights to preserve that integrity. Thomas and Scalia, on the other hand, see campaign expenditures and contributions as core political speech beyond even purportedly noble regulation. And in between are Chief Justice John Roberts, Justices Stephen Breyer and Samuel Alito and, to a lesser extent, Justice Anthony Kennedy, who believe campaign-finance restrictions and free speech, though rivals, can co-exist.
The belief in this co-existence is not new and has been recognized since at least 1976, when the Court in Buckley
v. Valeo struck down limits on campaign expenditures but approved restrictions on contributions. The Court has revisited this issue on several occasions since Buckley, but each time it has done so, it has demonstrated the impossibility of simultaneously encouraging and regulating political speech.
At issue in Randall was Vermont’s Act 64, which, among other things, prohibited individuals, political committees and political parties from contributing, in any two-year general election cycle, more than $400 to any candidate for statewide office, more than $300 to any candidate for the state Senate and more than $200 for any candidate for the state House. In addition, the law limited what candidates for these offices could spend in any election. By all accounts, Act 64 was the most restrictive state campaign-finance law in the country.
In a 3-1-2-3 ruling Stevens labeled a “cacophony,” Breyer, Roberts and Alito said Buckley remained good law and required the Court to strike down the Vermont law. Kennedy agreed with both the result and the conclusion that the Court's ruling in Randall was supported by Buckley. Kennedy, however, expressed concern that the Buckley jurisprudence “may cause more problems than it solves.”
Thomas and Scalia also concurred in the result but vigorously disagreed with the plurality’s decision to follow Buckley. That 1976 ruling, they said, “provides no consistent protection to the core of the First Amendment, and must be overruled.” Stevens, Souter and Ginsburg argued in dissent that the contribution limits should be upheld, with Stevens going so far as to urge the Court to overrule Buckley’s holding that limits on expenditures violated the First Amendment.
Of the various positions offered, only that of Thomas and Scalia is consistent with the fundamental tenet that political speech is entitled to the highest level of First Amendment protection. In their view, which Thomas has advocated for years, “broad prophylactic caps on both spending and giving in the political process … are unconstitutional.”
This view is as practical as it is principled, as Buckley and its progeny fail to offer any cogent framework for evaluating the constitutionality of campaign-finance legislation. Given the difficulty of fitting the square peg of such legislation into the round hole of the First Amendment, this failure is not surprising. Unfortunately, Breyer’s struggles to find a constitutional basis for invalidating the contribution limits in Randall blurred the issues even further.
In an opinion joined by Roberts and Alito, Breyer searched for objective factors to support his subjective belief that Act 64’s contribution limits were, essentially, “too low.” One, he said, was that, unlike the annual restrictions the Court had upheld, Vermont’s limits applied to a two-year period. Another was that the law’s limits were considerably lower than those approved in Buckley and in other cases the Court has considered. A third was that the limits were the lowest in the country.
Breyer also claimed evidence in the case raised a “reasonable inference” that the limits were so low that they could “pose a significant obstacle to candidates in competitive elections.” He also pointed out the limits were especially burdensome on political parties. Moreover, he said, the law’s limits on volunteer services effectively reduced the limit even further, as did the fact that the limits were not adjusted for inflation. And finally, he said, no evidence existed that any special corruption in Vermont justified the low limits. Taken together, he concluded, all of these factors demonstrated that the Vermont law “disproportionately” burdened First Amendment interests and thus was unconstitutional.
Thomas, however, persuasively rebutted Breyer’s arguments, demonstrating Breyer's analysis was wholly subjective and devoid of any meaningful roots in the Constitution. In his opinion, which Scalia joined, Thomas noted the concern about Act 64’s two-year period is irrelevant to whether the law satisfies its stated goal of preventing corruption. Nor is the relationship between the law’s limits and the limits of other states constitutionally significant, Thomas said, as a decision by several other states to join Vermont in adopting low limits would not change the impact on Vermont contributors’ First Amendment rights.
Moreover, Thomas correctly points out, the concerns that volunteer services and inflation will make the limits even lower than they appear “have nothing whatsoever to do with whether the restrictions are closely drawn to meet their objectives.” Nor could Thomas understand how the limits on parties which he believed were unconstitutional on their face somehow could affect the constitutionality of limits on individuals.
Thomas also rejected the notion that limits should be judged by how significantly they burdened individuals challenging incumbents. “An individual’s First Amendment right is infringed whether his speech is decreased by 5% or 95%,” Thomas wrote, “and whether he suffers alone or shares his violation with his fellow citizens.”
The plurality’s analysis, Thomas concluded, “does not purport to offer any single touchstone for evaluating the constitutionality” of campaign-finance laws. “Indeed, its discussion offers nothing resembling a rule at all. From all appearances, the plurality simply looked at these limits and said, in its ‘independent judicial judgment,’ that they are too low.
“The atmospherics whether they vary with inflation, whether they are as high as those in other States or those [in other cases], whether they apply to volunteer activities and parties no doubt help contribute to the plurality’s sentiment,” Thomas continued. “But a feeling does not amount to a workable rule of law.”
Thomas’s agreement with the result did not in his view make the plurality’s rule more workable. “[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,” he wrote. “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).”
Thomas, of course, is correct, and the inability to draw this line is the best evidence that campaign-finance legislation and the First Amendment are irreconcilable. Unfortunately, however, Randall’s likely significance is not the strength of Thomas’s arguments but rather the fact that the Court’s two newest members embraced Buckley. It therefore appears that Buckley and the strange bedfellows it produces will be with us for a long time.