The Return of Spending Limits: Campaign Finance after Landell V. Sorrell

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INTRODUCTION

On August 18, 2004, the United States Court of Appeals for the Second Circuit held that the First Amendment, as interpreted by the Supreme Court in Buckley v. Valeo, (1) does not preclude mandatory limitations on campaign expenditures. (2) In Landell v. Sorrell, (3) the court concluded that limitations imposed by the state of Vermont on candidate spending in state election campaigns are "supported by [the state's] compelling interests in safeguarding Vermont's democratic process from 1) the corruptive influence of excessive and unbridled fundraising and 2) the effect that perpetual fundraising has on the time of candidates and elected officials." (4) To be sure, the court declined to uphold the Vermont limits and, instead, remanded the case to the district court for a determination of whether the challenged spending limits are the "least restrictive means" of "furthering the State's compelling anti-corruption and time-protection interests." (5) Nevertheless, Landell is potentially one of the most important decisions in the evolution of modern campaign finance law as it marks the first time since Buckley that a court has held that a candidate expenditure limitation can be constitutional.

Although path-breaking, Landell is not entirely unprecedented. In recent years, several communities have sought to challenge Buckley by adopting spending limits for local or state judicial candidates. (7) These restrictions were invalidated on the authority of Buckley, but a number of the judges who heard the challenges to these laws displayed some restiveness with Buckley's rejection of spending limitations. (8) So too, although the Supreme Court has for nearly three decades continued to adhere to Buckley, aspects of the Court's recent campaign finance decisions suggest the Court might be open to rethinking Buckley's premises. (9) Landell could very well provide the Court with the opportunity to reconsider Buckley. (10)

The Landell opinion, while very significant, is also limited in several respects. The Second Circuit's suggestion that voluntary public funding with spending limits may be a less restrictive means of attaining the goals of spending limits is troubling, and threatens to pit these two complementary tenets of campaign finance reform against each other. Moreover, although Landell challenges Buckley's conclusion concerning spending limits, it still works largely within Buckley's basic conceptual framework. As a result, the Second Circuit's analysis does not reflect the full range of possible justifications for spending limitations.

Part I of this Article will analyze the Landell decision and situate it in the evolving judicial debate over campaign finance regulation. Part II will discuss the question, raised by the Second Circuit for the Landell district court on remand, whether spending limits are the least restrictive means of attaining the compelling interests relied on by the court. Part III will then examine those interests as well as other justifications for spending limits. As I will suggest, the constitutionality of spending limits in principle (11) would rest on a stronger foundation if other important interests directly relevant to the financing of democratic elections, particularly electoral competitiveness and voter equality, were taken into account.

I. LANDELL AND THE EVOLVING JUDICIAL CONSIDERATION OF CANDIDATE EXPENDITURE LIMITATIONS

A. Buckley v. Valeo

Modern campaign finance doctrine begins with the Supreme Court's holding in Buckley v. Valeo that campaign finance regulation directly implicates fundamental First Amendment freedoms of speech and association. (12) In so doing, Buckley sharply distinguished between limits on contributions and limits on expenditures. (13) The Court held that expenditures involve direct communications with the voters, and thus, expenditure ceilings "impose direct and substantial restraints on the quantity of political speech. …