Campaign-Finance Quicksand

Campaign-finance jurisprudence continues to quagmirify. On Monday the Supreme Court released its decision in Randall v. Sorrell. There were a total of six opinions, with the outcome being that the very strict Vermont limits on individual donations were rejected, but that the basic premise of modern campaign-finance law in Buckley v. Valeo - that a candidate buying his own speech amplification (through the buying of advertisements, travel, etc.) is protected by the First Amendment, but that helping a candidate amplify his speech is not – is still intact. (Some good analysis of campaign-finance law is consistently found on theSkeptic’s Eye blog.) Below are excerpts from Justice Breyer’s opinion, joined by Chief Justice Roberts and by Justice Alito in part:

Our examination of the record convinces us that, from a constitutional perspective, Act 64’s contribution limits are too restrictive. We reach this conclusion based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on volunteer activity in Vermont elections. Taken together, Act 64’s substantial restrictions on the ability of candidates to raise the funds necessary to run a competitive election, on the ability of political parties to help their candidates get elected, and on the ability of individual citizens to volunteer their time to campaigns show that the Act is not closely drawn to meet its objectives (at 19).
(snip)
Third, the Act’s treatment of volunteer services aggravates the problem. Like its federal statutory counterpart, the Act excludes from its definition of “contribution” all “services provided without compensation by individuals volunteering their time on behalf of a candidate.” Vt. Stat. Ann., Tit. 17, §2801(2) (2002). Cf. 2 U. S. C. §431(8)(B)(i) (2000 ed. and Supp. III) (similar exemption in federal campaign finance statute). But the Act does not exclude the expenses those volunteers incur, such as travel expenses, in the course of campaign activities. The Act’s broad definitions would seem to count those expenses against the volunteer’s contribution limit, at least where the spending was facilitated or approved by campaign officials. Vt. Stat. Ann., Tit. 17, §2801(3) (2002)(“[E]xpenditure” includes “anything of value, paid . . . for the purpose of influencing an election”); §§2809(a), (c) (Any “expenditure . . . intentionally facilitated by, solicited by or approved by the candidate” counts as a “contribution”).And, unlike the Federal Government’s treatment of comparable requirements, the State has not (insofar as we are aware) created an exception excluding such expenses. Cf. 2 U. S. C. §§431(8)(B)(iv), (ix) (2000 ed. and Supp. III)(excluding from the definition of “contribution” volunteer travel expenses up to $1,000 and payment by political party for campaign materials used in connection with volunteer activities).

The absence of some such exception may matter in the present context, where contribution limits are very low. That combination, low limits and no exceptions, means that a gubernatorial campaign volunteer who makes four or five round trips driving across the State performing volunteer activities coordinated with the campaign can find that he or she is near, or has surpassed, the contribution limit. So too will a volunteer who offers a campaign the use of her house along with coffee and doughnuts for a few dozen neighbors to meet the candidate, say, two or three times during a campaign. Cf. Vt. Stat. Ann., Tit. 17, §2809(d) (2002) (excluding expenditures for such activities only up to $100). Such supporters will have to keep careful track of all miles driven, postage supplied (500 stamps equals $200), pencils and pads used, and so forth. And any carelessness in this respect can prove costly, perhaps generating a headline, “Campaign laws violated,” that works serious harm to the candidate (at 26).

And on and on it goes like this. Once upon a time, these were the sorts of judgments legislators made. But now, thanks to the Buckley candidate-spending-oui, citizen-spending-non reasoning, the Court is forced to take on more and more legislative functions, to decide which restrictions interfere with free speech too much and which cause too much corruption. If it were to take on this quasi-legislative role, it would perhaps have been better served to adopt a simple organizing principle leading to an unambiguous result that expenditure and contribution limitations are all legal, or they are all not. The principle, for example, that if legislators regulate the conditions under which they can be challenged, elections are likely to be much less competitive. But the Court wanted this power, and now it has it.

It is not all bad. There are apparently four sets of ears – those of Justices Scalia, Thomas, Alito and Kennedy – sympathetic to the idea that Buckley itself should be overruled as a violation of the First Amendment. Justices Roberts and Breyer signed an opinion justifying continued adherence to it on precedential grounds, although the opinion (at 9) accepts the possibility that changed circumstances might invite a challenge. But for now Buckley and the drunken-meandering jurisprudence it has spawned is still the law of the land.

It seems hard to believe that this kind of slapdash law could hold together for long. But maybe its continuation is unavoidable. The Founders supposed that each branch of government would try to grab power, and so separating those powers and forcing them to fight over it was a recipe for continued liberty. And so the Supreme Court over time may have attempted to take legislative functions for itself. Casual empiricism (I have been unable to find hard numbers) suggest that the length and complexity of opinions has changed over time. There are now often more opinions, many joined only in part, and of longer length, and this is what we would expect if the Supreme Court is systematically absorbing legislative and executive functions, for example by writing campaign-finance law. Eugene Volokh, whom I respect, interprets these data more favorably to the Court, arguing that the expansion of federal law is responsible for most of it. But given that any Supreme Court seizure of power from the other branches, which is only limited (at least so far) by the difficult process of amending the Constitution, is perhaps the hardest to defend against over time, its takeover of campaign-finance authority by its erecting of ever more abstruse guiding principles is disconcerting.