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Supreme Court
Contribution Limit Liability
The high court struck down Vermont’s limits on campaign contributions. What might that mean for other states?
By Daniel Weintraub
Muddy and Murky
Questions Remain
Contribution Limits in Statewide Races
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?
In the Vermont case, the plurality opinion first found that the danger signs did exist—the limits were the lowest in the nation and far lower than any the court had previously upheld—and then found that the measure was not closely drawn.
To make that determination, Breyer relied on five factors:
- Expert testimony in the case suggested that the limits would restrict the amount of funding available for challengers to mount competitive campaigns.
- The same limits that applied to individual contributors applied to political parties, undermining the right of citizens to associate with like-minded people to take political action.
- The law counted volunteers’ out-of-pocket expenses as contributions, meaning campaign workers could easily exceed the limit by simply driving to events across the state or hosting coffees for their neighbors to meet the candidates.
- The limits were not adjusted for inflation, unlike the Missouri limits the high court had previously upheld.
- The Vermont legislature did not provide a record demonstrating that its exceptionally low limits were necessary to fight corruption.
Four other justices agreed with Breyer and Roberts that the Vermont limits were unconstitutional, but they felt the need to speak for themselves on exactly why they believed the limits crossed the line, and what that might mean for future cases.
Justice Samuel Alito said he thought Breyer went too far in implying that the Buckley case should be upheld. Alito said the Vermont matter could be resolved without addressing that question.
Justice Anthony Kennedy, meanwhile, also agreed that the Vermont limits were unconstitutionally low, but he said he thought the Buckley precedent should at least be reviewed in this case so that the Court could decide whether its logic still held.
Justice Clarence Thomas, joined by Antonin Scalia, said clearly that they would reverse Buckley, probably prohibit all contribution caps as unacceptable limits on speech, and leave it to voters to decide whether or not the candidates are corrupted by money.
On the other side, Justice John Paul Stevens said he thought Vermont’s limits were constitutional, and David Souter and Ruth Bader Ginsburg, in a separate dissent, said not only would they let the caps stand, but the Court should rule that limits on campaign spending are allowable as well.
That means that four of the nine current justices are at least open to the idea of getting the government out of the business of regulating campaign donations, while perhaps three want the government freed to regulate even more. If one of the liberals is replaced by another justice who questions the Buckley precedent, the Court could one day wipe out all state limits on contributions.
QUESTIONS REMAIN
In the meantime, states are left to wonder whether their limits would pass muster if challenged under the new standard the Court created in this case.
According to NCSL, eight states have limits of exactly $1,000 in statewide races. Another six states have limits below that—Arizona, Colorado, Florida, Maine, Massachusetts and Montana.
But others think the lower limits will survive as long as they don’t have the same defects that hobbled Vermont’s law in the view of the justices. States might have to adjust their limits annually for inflation, and make sure that parties are allowed to contribute more than individuals. Volunteers’ incidental expenses should be largely exempt from the limits.
The California proposal, known as Proposition 89, would prohibit contributions to candidates who accept public funding (except for a small amount of seed money) and place new limits on privately funded candidates who refuse the subsidy. In statewide races, contributions from individuals would be limited to $1,000. The measure also seeks to limit campaigning through independent expenditures and limits party spending in governor’s races to $750,000, less than the cost of one week’s worth of statewide television advertising.
In an analysis written for the sponsors of the measure (the California Nurses Association), election law expert Rick Hasen, a professor at Loyola Law School in Los Angeles, said he thought the measure would withstand Court scrutiny. He noted that the limits are much higher than Vermont’s, they are adjusted for inflation, and they permit parties to contribute far more than individuals.
The limits, Hasen concluded, “are very likely to be upheld as constitutional in the event they are challenged after the proposition’s passage.”
But James Bopp, an Indiana lawyer who represented the Vermont Republican Party, noted that the $1,000 limit on contributions to statewide candidates is less than half of what is now allowed under federal law, and the political parties, which can and do spend millions of dollars in U.S. Senate races, would be far more limited in state campaigns.
“A limit of $1,000 in California would be too low,” said Bopp, who has represented plaintiffs in many such cases around the country. “They are talking about something that’s a lot lower than the federal limits.”
In the short term, states can probably except case-by-case scrutiny of their limits, with California, if it passes Proposition 89, perhaps the first in line. But if the make-up of the Court moves further to the right, another landmark decision could be in the offing, overturning the precedent set in Buckley and striking down all contribution limits, no matter how high they are.
“It’s possible,” Bopp said. “There’s nothing in this decision that would preclude any of the justices who joined it from joining a future Scalia or Thomas opinion striking down all contribution limits.”
Contribution Limits in Statewide Races
States with limits of $1,000 in statewide races:
Alaska
Arkansas
Kentucky
New Hampshire
Rhode Island
South Dakota
West Virginia
Wyoming
States with other limits:
Arizona ($760)
Colorado ($500)
Florida ($500)
Maine ($500)
Massachusetts ($500)
Montana ($500)
Daniel Weintraub is the public affairs columnist for the editorial pages of the Sacramento Bee. He has been covering California politics since 1987.
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