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June 27, 2006

the campaign finance decision

I happened to be in the Supreme Court chamber yesterday when the campaign finance decision was announced. Campaign finance law has been an interest of mine since I worked for Common Cause in the early 1990s; it's the topic of chapter four of my New Progressive Era. But it was a coincidence that I was present for yesterday's announcement. My friends Diana Hess and Lee Arbetmen, who teach Streetlaw's Supreme Court Summer Institute for Teachers, had invited me to sit with the teachers for yesterday morning's session in the Court.

The justices produced six separate opinions, of which Justice Breyer's became the judgment of the court only "because it was the narrowest reasoning in the majority," as the Post explains it. (See the pdf of all the opinions.) Moreover, Justice Breyer--who's thought to favor campaign regulation--seems to have attracted the votes of Justices Roberts and Alito on the basis of stare decisis, the doctrine that a past decision should normally be allowed to stand. Both of the new justices invoked that rather Burkean principle during their confirmation hearings, allowing them to imply that they might uphold a right to abortion even though they are against it. In yesterday's case, their respect for precedent put them on the opposite side of Justices Scalia and Thomas and produced two votes for the basic status quo.

The main results of yesterday's case are as follows: (a) states cannot limit the amount that campaigns may spend; (b) states may limit the size of contributions to parties and candidates; but (c) some limits can be too low to be constitutional. Part (a) was already the law under Buckley v. Valeo (1976). Vermont had then passed spending limits in a deliberate effort to overturn Buckley. That was a risky strategy, since the Court might have taken the opportunity to overturn all campaign finance regulations, as Justices Thomas and Scalia argued yesterday. Instead, the court basically preserved the structure of Buckley. Part (b) was already the law. Part (c), however, is a new wrinkle.

I agree with yesterday's decision that contribution limits can be too low--designed to cut off almost all funding for campaigns and therefore protecting incumbents against serious challenges. I also believe that contribution limits can be too high--allowing rich people and organizations to put their favored candidates in office and render the public debate irrelevant.

In his folksy, unofficial presentation yesterday, Justice Breyer noted that Vermont's contribution limits were so low that a party would quickly exhaust its permissable budget by buying coffees at a few events. He noted that his judgment about Vermont's limits could be wrong, but the lack of an index for inflation meant that "even if we are wrong now, we will be right soon enough." (That's an inexact quote.)

It is troubling that an unelected court can start with the grand generalities of the Constitution and end up deciding that a $200 limit is too low, given the current price of a cup of coffee. Justice Thomas writes: "the plurality does not purport to offer any single touchstone for evaluating the constitutionality of such 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,' too low."

But the grand generalities of the Constitution do require competitive elections that provoke robust debate and that are not controlled by a rich elite. Those values can be undermined by either too much or too little private money in campaigns. Legislatures should uphold the Constitution by passing campaign finance reform with appropriate spending limits. But they canot be trusted to set rules that so profoundly affect their own careers without indepedent judicial review.

Thus I think there is no alternative but for federal courts to review contribution limits and decide, case by case, whether they are too low. I wish that courts could order appropriate limits when there are none, just as I wish that courts would require redistricting procedures that maximize competitiveness. But mainstream opinion seems to hold that the judiciary, while it may strike down overly burdensome campaign regulations, may not create rules that strengthen democracy.

Posted by peterlevine at June 27, 2006 09:45 AM

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