REVIEW & OUTLOOK
Free Speech Victory
The Supreme Court declines to repeal the First Amendment--though only by 6-3.
The shocking news in yesterday's Supreme Court ruling on Vermont's campaign-finance law is that three Justices essentially voted to repeal the First Amendment. The better news is that, sometime down the road, there might be a majority among the other six Justices to reconsider the Court's previous limits on free political speech.
The latter hint of optimism comes from yesterday's 6-3 ruling, in Randall v. Sorrell, to toss out Vermont's onerous limits on political contributions and expenditures. Befitting a liberal utopia, Vermont had tried to purge all money from politics in 1997 by passing a law that placed a spending cap of $300,000 on gubernatorial candidates, with lower limits on other state office seekers. It also restricted individual campaign contributions to as low as $200.
The Court said those limits were so low that they unconstitutionally restricted the ability of candidates to raise money and communicate with voters. Writing for a fractured majority, Justice Stephen Breyer said Vermont's limitations "impose burdens upon First Amendment interests that . . . are disproportionately severe."
This is progress, of a sort. The Court stopped well short of overturning Buckley v. Valeo, the 1976 ruling that started the confusion over campaign spending, or McConnell, the 2003 ruling that upheld it. But by rejecting Vermont's draconian restrictions, a Court majority has at least conceded that some campaign-finance limits go too far in damaging free-speech interests. Limits on campaign spending in particular--as opposed to campaign donations--are increasingly suspect.
That said, the Court more or less spoke in tongues, with six separate opinions. Justices Anthony Kennedy (in one opinion) and Antonin Scalia and Clarence Thomas (in another) were the most forthright in repeating their opposition to Buckley. Justice Kennedy was especially pungent in noting the contradictions that are building in the Court's campaign-finance jurisprudence.
He predicted that yesterday's ruling "may cause more problems than it solves," adding that the Court is now on record in an earlier case as saying that a limit of $1,500 is no problem but that Vermont's $200 limit offends the Constitution. "Our own experience gives us little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance," he wrote, in notable understatement.
Meanwhile, Chief Justice John Roberts and Justice Samuel Alito joined Justice Breyer's opinion, which was narrowly argued on stare decisis grounds. But in his own concurrence, Justice Alito went out of his way to note that he did so on precedential grounds since the argument for overturning Buckley had not been sufficiently joined. That raises the question of whether he or the Chief Justice might eventually be open to taking the Court back from its increasingly intrusive and confused campaign-finance rulings.
As for the three First Amendment opponents, Justices David Souter, John Paul Stevens and Ruth Bader Ginsburg voted to support Vermont's limits. Justice Stevens seemed to think it would be great for democracy if candidates were able to spend nothing to promote their message to voters over the airwaves; then, he wrote, every campaign might be like the Lincoln-Douglas debates. We're not sure what century he's living in, but let's hope Randall is the beginning of the Court's migration back to common sense on money and political speech.
