In a long-awaited decision, the Supreme Court today threw out Vermont’s strict campaign finance regulations. The challenged law limited not only contributions (like most campaign finance regimes) but also expenditures, as follows:
Act 64, which took effect immediately after the 1998 elections, imposes mandatory expenditure limits on the total amount a candidate for state office can spend during a âtwo-year general election cycle,â i.e., the primary plus the general election, in approximately the following amounts: governor, $300,000; lieutenant governor, $100,000; other statewide offices, $45,000; state senator, $4,000 (plus an additional $2,500 for each additional seat in the district); state representative (two-member district), $3,000; and state representative (single member district), $2,000. §2805a(a). These limits are adjusted for inflation in odd-numbered years based on the Consumer Price Index. §2805a(e). Incumbents seeking reelection to statewide office may spend no more than 85% of the above amounts, and incumbents seeking reelection to the State Senate or House may spend no more than 90% of the above amounts. §2805a(c).
Act 64 also imposes strict contribution limits. The amount any single individual can contribute to the campaign of a candidate for state office during a âtwo-year general election cycleâ is limited as follows: governor, lieutenant governor, and other statewide offices, $400; state senator, $300; and state representative, $200. §2805(a). Unlike its expenditure limits, Act 64âs contribution limits are not indexed for inflation.
A political committee is subject to these same limits. Ibid. So is a political party, ibid., defined broadly to include âany subsidiary, branch or local unitâ of a party, as well as any ânational or regional affiliatesâ of a party (taken separately or together). §2801(5). Thus, for example, the statute treats the local, state, and national affiliates of the Democratic Party as if they were a single entity and limits their total contribution to a single candidateâs campaign for governor (during the primary and the general election together) to $400.
The Court held that both the contribution and the expenditure limits violated the First Amendment. In so doing, it declined the invitation to reconsider Buckley v. Valeo, the 1976 case at the root of modern campaign finance regulation.
The lineup on this case is quite interesting. There was no majority for the Court. Justice Breyer, joined in large part by Chief Justice Roberts and Justice Alito, wrote the lead opinion. (Surprised by that threesome? Don’t be. Breyer is a terrific politician as well as a fine judge, and he fully understands the value of building coalitions with the new guys – especially the Chief – on an institution like the Supreme Court. Disclosure: I clerked for Breyer on the Court of Appeals). Justice Kennedy generally agreed with Breyer’s opinion, but was sufficiently skeptical of the continuing value of the Buckley regime that he didn’t formally sign on. Justice Thomas, joined by Justice Scalia, wrote separately to urge that the Court should have overruled Buckley v. Valeo completely and thereby eliminated almost all campaign finance regulation. Justices Stevens, Souter, and Ginsburg dissented.
I haven’t had a chance to read the opinions carefully yet – I am hoping to read them tonight and will write more about this important case after I have done so. In the meantime, you can read John Bonifaz’s statement on the case, should you be so inclined. Bonifaz, of course, is very disappointed in the decision. But frankly, I don’t think Bonifaz is doing his campaign any favors with statements like this one:
Like the Courtâs early rulings upholding the poll tax â only to be later overturned, this ruling today is inconsistent with basic democratic principles and with the constitutional promise of political equality for all.
The poll tax? Please, John, get a grip. People who are worried about Bonifaz think he might be an extremist. Statements like that don’t help dispel that impression.
Nice post, David. I agree with your assements of the ruling and of the Bonifaz reaction. Don’t have time to digest much, but I just want to say – Wow! $4,000 for a state senate election? $2,000 for state rep?? Get real – a candidate spends that much on gas during a state rep election! She/he’ll spend twice that on renting his campaign office! $2,000 won’t even cover the campaign manager’s salary! (Hopefully…) What in the world kind of campaign are you supposed to run on $2,000?
I think you’re jumping to conclusions based on what you know a state rep race means here. It’s not the same thing there. There are far fewer people in each district, the legislature is not in session much of the year, offices don’t pay much of a salary, media is cheaper, and many candidates run for the Vermont house without spending any money at all.
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… and then there’s Fred Tuttle, who won the Republican nomination for US Senate from Vermont in 1998, in a contested race, while spending under $200 – and no, I didn’t leave any zeros off. (Tuttle then dropped out and endorsed Patrick Leahy, the Democrat, in the general election)
David, it’s my understanding that they found not only the spending caps, but also the contribution limits to be unconstitutional. Breyer (I think) laid out a test to determine whether such limits were OK or not. Do you think that our laws are in danger?
the contribution limits were also struck down. I haven’t read the opinions carefully enough to have a sense of whether our limits seem to be in peril. Will post later once I’ve done so.
David, David, come on… what’s so ridiculous about that? I think you’re jumping before really looking into the issue. John Bonifaz won a “genius grant” largely based on developing a legal theory on campaign financing that has come to be known as the “Wealth Primary” theory. He draws a historical parallel from other lines of cases where the court first upheld, then eventually struck down, practices that limited certain classes of people’s access to politics. At first, they limited access by race, then they moved to limiting access by wealth – and poll taxes fall exactly at the transition between those two trends. I urge you to read about it – it’s one of the reasons the National Voting Rights Institute was founded.
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Quoting John,
And to quote another John,
The analogy here is quite apt. Even if you disagree, please consider it seriously, rather than dismissively labelling “extreme” what the MacArthur Foundation found so worthy.
I think Cos got it backwards (perhaps Bonifaz, too.)
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The poll tax was a restriction on who could vote. Campaign spending and contribution limits are sharp limitations on who can run.
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Someone needs to tell me why, if Bonifaz and Justice Stevens believe they should and can restrict spending in political campaign, why they cannot make an arguement to restrict spending on, say, car advertising, or legal gun purchases, or, for that matter, private physician services paid out of my own pocket.
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Someone needs to tell me why money in politics is “corrupting.” What makes political money — money for running and organizing political parties, campaigns, and elections — is inherently corrupting while every other dollar I spend is not.
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Or perhaps money is inherently evil. Then perhaps I should be making the arguement that tax proceeds I remit to state coffers then spent by the state government is also inherently corrupting and should have contribution and spending limits.
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I want more politics. I want more political advertising, more political newcomers throwing their hats into the ring, more political activity. Why am I being restricted in spending my money on politics?
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I keep asking this question — why is money for campaigns inherently corrupting? — but no will provide an answer.
I have answered you several times, but I felt like you were ignoring what I said each time, so I stopped. Read some of my past posts and comments if you want.
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I’ll add one thing: We have no Democratic stake in whether Joe sells more cars than Jill or whether she outspends him on advertising and sends him out of business. In fact, it’s what we want in certain spheres: market competition based on money. And it’s perfectly reasonable that the fortunes and futures of car dealerships be determined only by those customers who have enough money to keep buying new cars, while the rest of us have little impact on their prospects.
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Democracy is not a business. It’s how we associate with everyone to govern all of us, together. Your analogy falls completely flat – either that, or it’s creepy: do you want Democracy to be about economic competition and customers who have money?
I am not as well-versed in campaign finance as Bonifaz, but I know a lot more about it, as well as the history of the Supreme Court and of poll taxes and the like, than the average voter. And if his statement strikes me as borderline extreme (which it does, and no, I haven’t gone back to read about the wealth primary theory, and neither will any other MA voters save a dozen hardcore campaign finance junkies, though I may do so when I have some time), it’s certainly going to strike many other voters the same way.
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So my question for Bonifaz is this: is he trying to win an election, or to make a point? I don’t need to tell you that there’s a big, big difference between being a successful, award-winning activist and being a successful, election-winning politician, especially in a statewide race. I’m not saying he should abandon his previously-held views, or that he shouldn’t think to himself that this decision is in line with poll tax decisions from the bad old days. But I’m not at all sure that putting out press releases essentially comparing the current Supreme Court (including local boy Steve Breyer, who is also the closest thing to an effective “liberal” leader that exists on the Court right now) to a bunch of racist poll-taxing yahoos – and that’s how the release reads, make no mistake – is the best way to prove himself to be enough in the mainstream that more than a small cadre of activists will back his candidacy.
Voters don’t have to be geniuses to know that a poll tax is an exclusionary device – designed to limit voting to those who can afford it. To get your panties in a bunch because the language Bonifaz uses going to the essence of his campaign – fair elections – while failing to shovel dirt on his opponent, just encourages more of the self-destructive infighting that is bleeding the Democratic Party to death. If you’re really concerned about the viability of his campaign, join it.
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“One dollar, one vote” is the mantra of The Beast. If it were the law of the land, Rupert Murdoch would own the internet and this discussion would never see the light of day.
But they’re comfortably unbunched. As for joining Bonifaz’s campaign, I’ll take a pass on that too.
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Thanks for checking in, though.