Well, there’s a lot to talk about with this case. There’s no majority opinion, so it’s a little hard to figure out what the opinion actually stands for, but a couple of messages are clear.
First: expenditure limits are toast. There are two votes – Scalia and Thomas – to overrule Buckley v. Valeo outright and hold that all campaign finance restrictions of any kind are unconstitutional. And there are three votes – Roberts, Breyer, and Alito – to uphold the portion of Buckley invalidating expenditure limits. So that’s a done deal, at least for the foreseeable future.
Second: contribution limits will, in my view, generally continue to be upheld. Vermont’s limits were extraordinarily low. In addition – and I think more importantly, at least from the Breyer/Roberts/Alito perspective – Vermont placed exactly the same contribution limits on political parties as it did on individuals (that’s right – the party could only donate $400 to the Gov candidates), and it also more or less counted all of the incidental expenses volunteers incur in the course of helping their candidates toward the contribution limits, thereby making it very difficult for campaigns to utilize volunteers effectively. These latter two … oh, how shall I say it … stupid restrictions pretty much doomed the law. So if you’re thinking that our pathetically low $500 limits here in MA will be invalidated anytime soon, don’t hold your breath. Among other things, our limits on party-to-candidate contributions are far less stringent, and a low-ish individual contribution limit without more doesn’t seem to be enough to create a constitutional problem under this opinion.
Third: Buckley v. Valeo remains in danger of being overruled. As noted above, there are two solid votes to overrule it now. Justice Alito, although he joined most of Breyer’s opinion, did not join the parts of Breyer’s opinion explaining why stare decisis meant that Buckley shouldn’t be overruled, instead writing separately to say that in his view the parties didn’t adequately raise the question. So he remains an unknown on that question, and he might well be sympathetic to the Scalia/Thomas line. Justice Kennedy, too, seemed awfully skeptical about the continuing vitality of Buckley, and I’d count him as a potential fourth vote to overrule in an appropriate case. Of course, Roberts joined Breyer’s stare decisis discussion, so together with Stevens, Souter, and Ginsburg, at the moment there seem to be five solid votes to keep Buckley’s upholding of contribution limits alive – at least until the Court’s membership changes again. It’s also worth noting that Justice Stevens is now advocating overruling the part of Buckley that invalidated expenditure limits – he, in other words, wants to do the exact opposite of Scalia and Thomas. But he’s the only one, and that position is not going to command a majority of the Court anytime soon.
For the law geeks out there, Breyer’s opinion is quite an interesting read – he spends a lot of time in the section striking down the contribution limits explaining the role that he thinks such limits ought to play in a democracy, and why these particular limits actually undercut that role. There’s also a ton of commentary at the always-helpful SCOTUSblog, as well as at Rick Hasen’s excellent Election Law blog.
This case was big. But the really big election-related case – the legality of Tom DeLay’s Texas gerrymander – will be decided later this week, probably Wednesday or Thursday, along with another huge “presidential powers in the war on terror” case. Stay tuned!
Great links, too, David. A 6.0.
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How will the Voting Rights Act fare if the SCOTUS decides against the Delay gerrymander? Will that cause an intellectual collision?
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What would an adverse decision for Delay’s action mean for Barney Frank’s convoluted MA-4th congressional district? I’m always amused that voters in Fall River vote alongside some in Newton!
The DeLay redistricting will be fine by this Court. Does anyone doubt it?