Shrink Missouri, Campaign Finance, and "The Thing That Wouldn't Leave"

By Hasen, Richard L. | Constitutional Commentary, Winter 2000 | Go to article overview

Shrink Missouri, Campaign Finance, and "The Thing That Wouldn't Leave"


Hasen, Richard L., Constitutional Commentary


During one of the first seasons of Saturday Night Live, perhaps in 1976, the "Not Ready for Prime Time Players" satirized trailers for horror movies. Along with "The Island of Lost Luggage," the skit featured a trailer for "The Thing That Wouldn't Leave." John Belushi played a party guest who planted himself on the living room couch after all the other guests had left. When Belushi, shoving his face full of potato chips, announced that he was going to make a long distance phone call, party hostess Jane Curtin gave a blood-curdling scream.

The year 1976 was also when the United States Supreme Court decided Buckley v. Valeo,(1) which, among other things, upheld limits on campaign contributions but struck down limits on campaign expenditures. The per curiam opinion was drafted hastily to be in time for the 1976 elections and featured additional separate opinions from five of the eight Justices who participated.(2) Members of the Court have since criticized various aspects of the opinion, including its decision to judge campaign contribution limits by a different standard than campaign expenditure limits.(3) Yet despite such criticism, nearly 25 years later and many years after the death of John Belushi, Buckley truly has become "The Thing That Wouldn't Leave." Buckley has appeared to be an immovable object, despite numerous challenges from many directions.(4)

Perhaps change is finally coming. This past term, the Supreme Court decided Nixon v. Shrink Missouri Gov't PAC.(5) Shrink Missouri upheld against First Amendment challenge a Missouri law limiting individual campaign contributions to statewide candidates to $1,075. The outcome of the case is unremarkable following Buckley's decision to uphold the federal contribution limit of $1,000, but the reasoning in Shrink Missouri is quite significant. In four separate ways, the Court in Shrink Missouri lowered the constitutional bar for laws limiting campaign contributions. The Court: (1) ratcheted down the level of scrutiny applicable to contribution limit challenges; (2) expanded the definition of "corruption" and "the appearance of corruption" necessary to sustain contribution limits; (3) lowered the evidentiary burden for a government defending contribution limits; and (4) created a very difficult test for those challenging a contribution limit amount as unconstitutionally low. In combination, the opinion shows dramatic new deference toward contribution limits.

A key question remaining open after Shrink Missouri is the extent to which this deference signals a broader willingness of the Court to allow regulation of campaign finance. The case may be read in two ways. One reading, supported by the Court's careful limiting language, is that Buckley is alive and well. Under this reading, Shrink Missouri is simply the Court's latest pronouncement that, following Buckley, contribution limits generally are constitutional. Shrink Missouri then pairs well with the second most recent Supreme Court campaign finance case, Colorado Republican Federal Campaign Committee v. Federal Election Commission.(6) In Colorado Republican, the Supreme Court, following Buckley, affirmed a political party's right to make unlimited independent expenditures for or against a particular candidate.

The second reading of the case is that the Court is preparing to erect in place of Buckley a jurisprudence more hospitable to campaign finance regulation. The majority opinion never says this explicitly, but the message comes through implicitly in the Court's discussion and is supported explicitly by the concurring opinions.

We probably will not learn whether the first or second interpretation of Shrink Missouri is correct until Supreme Court personnel changes. Nonetheless, even if the Court opts for the first reading in the near term, each day the Buckley status quo grows increasingly untenable given the explosive growth in the campaign finance loopholes of "issue advocacy" and "soft money," a point Justice Kennedy raised in his Shrink Missouri dissent. …

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