Icky Balance
The limits to limits on political spending.
By Allison Hayward

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Monday morning ’s splintered opinion from the Supreme Court in Randall v. Sorrell may not tell us much about the Constitution, or about the fate of any other campaign-finance limitations, but it does show how “balancing” constitutional rights works in practice. And it isn’t pretty, even when the result affirms an individual’s political rights.

Balancing is the modern approach to constitutional jurisprudence. Categorical protection for speech, assembly, and the press went out with Hugo Black. Speech or associational activity can be restricted by the government consistent with the First Amendment if the authorities have a good enough reason. So the Court balances.

In Buckley v. Valeo (1976), the Supreme Court balanced expenditure and contribution limits and an interest in reducing corruption and “leveling the playing field” against the freedom of speech. Expenditure limits were rejected, but free speech didn’t fare so well when it came to contributions to candidates, parties, and political committees. The Court reasoned that the latter were not pure expression, like a direct expenditure, and so were less “speechy”; meanwhile, because contributions are made directly to candidates and officeholders, the risk of corruption is higher. In the balance, then, the Buckley decision concluded that federal expenditure limits were unconstitutional (unless adopted voluntarily, as we have in the presidential system), but contribution limits were permissible.

We have been harvesting the fruit of these distinctions for 30 years. Monday’s decision is part of that harvest. Six members of the Court agree that Vermont’s cap on expenditures and its low contribution limits violate the First Amendment. However, one set of justices — Breyer, Roberts, and Alito — believe this is because, under the Buckley balance, expenditure limits remain illegitimate and Vermont’s contribution limits are unjustifiably onerous. In this case, the contribution limits were very low, were applied in equal measure to parties and individuals (burdening the ability to associate in political parties), applied to the entire election cycle, were not adjusted for inflation, and included the individual expenses of volunteers — again, burdening “association.” Plus, the state didn’t make the case that Vermont has a corruption problem that would justify the most restrictive campaign-finance rules in the nation. In short, this group likes the Buckley balance and wants to keep it.

Another set of justices — Thomas, Scalia, and (less so) Kennedy — has deeper problems with the way the Court balances political liberties with state interests. They would overrule Buckley’s modest protection of contributions, which largely defers to legislatures, and replace it with something more vigorous. They would also like a clearer standard, and fear Monday’s plurality opinion adds to the muddle.

The remaining justices — Souter, Stevens, and Ginsburg — believe that the Vermont legislature can enact low contribution limits consistent with the First Amendment. They split among themselves on whether expenditure limits can be justified, and whether there was an adequate record to defend them here. This group did not carry the day.

The principle that did carry the day was “balancing” — but with a stated concern for limits that go too far. That’s the “ick” factor at work; justices here were presented with limits they felt went beyond an appropriate balance. The problem is that the basis for the balancing is something outside the Constitution and the law at issue. Justices here are like jurors weighing evidence based on their life experiences. In a recent opinion in Majors v. Abell, Judge Frank Easterbrook described exactly the problem with such balancing:

For the judiciary to say that a law is valid to the extent that it is good is to operate as a council of revision and to deny the power of a written constitution to constrain contemporary legislation supported by the social class from which judges are drawn.

Monday, the Supreme Court concluded that Vermont’s contribution limits were unconstitutionally strict, but other contribution limits — those in federal law upheld in Buckley, for example — remain permissible.

The First Amendment states that “Congress shall make no law . . .” Well, here the legislature hasn’t made the law; the Court has. What this means for the “rule of law” independent from a particular panel of judges remains unclear.

—Allison Hayward blogs on campaign-finance issues at www.skepticseye.com. As of next week she will also be an Assistant Professor of Law at George Mason University Law School.

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