Contribution Limit Liability: The High Court Struck Down Vermont's Limits on Campaign Contributions. What Might That Mean for Other States?

Article excerpt

A U.S. Supreme Court decision striking down Vermont's limits on campaign contributions soon could have a ripple effect across the country.

That wave might be felt first in California, where voters this fall will consider wide-ranging campaign finance reform that could run afoul of the high court's evolving stand on the issue.

But other states from Arizona to Maine, Colorado, Florida and elsewhere might soon see their contribution limits come under challenge as well.

The legal question at issue, as it has been for 30 years, is when do limits on campaign contributions become so low that they represent an unconstitutional infringement on free speech?

Vermont's law, adopted in 1997, was the strictest in the nation. Enacted in tandem with public financing of campaigns and campaign spending limits, the law capped contributions to candidates for governor at $400 for a two-year election cycle, including a primary and a general election. It limited donations to state Senate candidates to $300 and to $200 for legislative candidates.

The public financing provisions of Vermont's law were never challenged. The spending limits were, and the Supreme Court, in its opinion, quickly dispatched them. The Court has held all campaign spending limits unconstitutional since 1976 and saw nothing in the Vermont law to make it reconsider.

MUDDY AND MURKY

But the case law on contribution limits has always been murkier, and the Court did little to clarify it in this case.

The right of states and the federal government to regulate campaign contributions rests on a landmark 1976 case known as Buckley v. Valeo. In Buckley, the Court held that the government's interest in preventing corruption and the "appearance of corruption" outweighed the First Amendment interests of contributors to use their money to communicate with fellow voters through a politician's campaign. The Court ruled that the $1,000 federal limit at issue in that case, and others like it, could be permitted as long as they were "closely drawn" to fight corruption and the perception that money influenced lawmakers' decisions.

The Court also acknowledged that it might be difficult to determine exactly when a contribution limit crossed the line and began to impinge on free speech. But the Court said it would largely defer to legislators on that question, saying it had "no scalpel to probe" such distinctions.

That disclaimer, and the Court's later rulings in cases upholding Missouri's contribution limits and the McCain-Feingold federal campaign finance law, gave observers reason to believe that the justices might never overturn a contribution limit. Then came Vermont.

After the Green Mountain State adopted its limits, they were challenged by the ACLU and, separately, the Vermont Republican Party. Both plaintiffs contended that the limits were so low that they effectively cut off free speech.

"It is not the government's role to tell candidates how much they can speak and to tell voters how much information they need to receive during an election campaign," said Mitchell L. Pearl, an ACLU attorney involved in the case, known as Randall v. Sorrell.

The plaintiffs ultimately prevailed, but the Court's decision was far from unanimous. The 6-3 opinion was written by Justice Stephen Breyer and joined in full by only one other justice--Chief Justice John Roberts.

Breyer's opinion, seeking to define a standard for how low is too low when it comes to contribution limits, was in some ways reminiscent of the late Justice Potter Stewart's famous observation about obscenity: "I know it when I see it." But Breyer did try to offer some concrete guidance for legislators and lower courts to follow.

First, he asked, are there "danger signs" that suggest the limits will decrease political competition?

Second, did the legislators who adopted the limit provide a record to show that the measure was "closely drawn" to achieve its anticorruption objective? …