Boston Globe on Campaign Finance Reform at the SCOTUS

I loathe the Boston Globe. This editorial will make you understand why. The main point, is that they just don't seem to get what the SCOTUS finding was nor have they made any apparent attempt to research it. Thank the blessed Brighid for blawgs.

STATES ARE the laboratories of democracy unless someone in Washington doesn't like what's in the test tube.

Yesterday, the US Supreme Court struck down a Vermont law that attempted to bring some sanity to the financing of political campaigns. It was a disappointing decision, especially at a time when the corrosive effect of money on politics is apparent in headlines nearly every day.

And with that I'll go to some reasoned commentary on the topic.

First, the Volokh Conspiracy has Eugene Volokh's commentary on money as speech.

Money and Speech:

This morning's campaign speech case from the Supreme Court, Randall v. Sorrell, leaves me with little new to say, which is fortunate because I have little time right now to say much about it. Still, Justice Stevens's repetition of the old saw that "it is quite wrong to equate money and speech" struck me as mistaken enough to be noteworthy. (The occasional argument of some critics of campaign finance law that money is indeed speech is equally mistaken.)

The reason that the Court struck down the law here — which, among other things, would have limited a candidate's total spending for Vermont state representative races to $2000 for both the primary election and general election put together — is not that money is speech. Rather, it's that restrictions on spending money to speak are restrictions on speech, and "money is speech" is, I think, a misleading way of expressing this claim.

Just consider some analogies. Would we say "money is abortion"? I doubt it, but a law that banned the spending of money would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.

Interesting that. Pretty much exactly where I've been on all of the campaign speech repression legislation that has been popping up.

Volokh then links to a rather amusing synopsis of the findings at the Skepticseye. Just read it for the laugh.

Then SCOTUSblog has several opinions. Let's start here with Amy Howe's linking to Rick Hasen's first glance. I'll just list the headlines. You can go for the meat if you desire on the blawg itself.

1.Chief Justice Roberts and Justice Alito agree that some campaign contribution limits are consistent with the First Amendment.
2. Battles will rage across the country over the constitutionality of particular contribution limit laws.
3. Political parties may now start arguing for additional constitutional protections under the third factor listed above.
4. The nail in the coffin for expenditure limits.

My synopsis of the synopsis is: You can limit campaign contributions, but not too much, and still be within the rights or the First Amendment. You can't limit campaign expenditures. There is a new test on how much is "too little" for contributions. And lastly, this mess will be ricocheting around the courts for years to come.

Sigh.

Amy then posts Rick Hasen's additional thoughts here.

In the short run, Chief Justice Roberts' vote is good news for those of us who think contribution limits should be upheld. I think most lower courts examining most state and local campaign finance laws will uphold them. But not all will, and these cases will eventually work their way back to the Supreme Court. In the long run, it may not be good news at all. As I wrote in my South Carolina article: "It may be that in 2016, individuals, corporations, and unions will be free to give as much money as they want to any candidate or group, subject to the filing of disclosure reports."

So more on the thought that campaign finance reform will continue, but expect more fights.

Then there is the opinions of Mark Alexander.

Today, the United States Supreme Court unwisely rejected Vermont's campaign spending limits.

In upholding Buckley, the Court failed to find a compelling interest in upholding Vermont's Act 64. In today's opinion, the U.S. Supreme Court did not listen to the voice of the People of Vermont, and to provide meaningful campaign finance reform. Instead of deferring to the notions of federalism inherent in respecting a law passed by the State Legislature, the Court instead relied on notions of stare decisis to uphold Buckley's onerous restrictions on campaign expenditures.

In its nearly blind allegiance to stare decisis, the Court ignored the state of reality today, namely that elected are constantly torn from their official duties, in order to attend to the demands of fundraising. There is ample evidence that candidates focus their time on a limited number of people throughout their campaigns, in order to raise the massive sums of money needed to run effective campaigns. As a result, the people are denied the chance to have input into the process. Being removed in such a way hurts American representative democracy, in which the people are to be engaged in the electoral process.

Sounds like the BoGlo read this guys opinion alone. I'm afraid I disagree with his points, at least relative to the constitutional protections. The voters of Vermont can't vote down constitutionally codified right to free speech. The SCOTUS is the tool that ensures that the protections are maintained. There is a good point about the politician wasting the people's time by raising money for campaigns, but that doesn't mean that the first amendment rights should be forfeit because of it.

Additional opinions by Richard Briffault and Rick Pildes are also posted there.
Briffault give this synopsis of the original Buckley case and the Vermont legislation:

Expenditure limits: Modern campaign finance law begins with Buckley, which held that campaign money involves speech and association rights protected by the First Amendment but then determined that limits on contributions to candidates raise different concerns than limits on spending by candidates and independent groups aimed at influencing the voters. Buckley found that contribution limits place only a modest burden on donor speech and association which can be justified by the governmental interest in preventing corruption, but that spending limits "impose direct and substantial restraints on speech" which cannot be justified either by the interest in preventing corruption or the goal of promoting equality.

In passing Act 64, the Vermont legislature sought to force the Court to reconsider Buckley's rejection of spending limits. A Second Circuit panel held the Vermont limits might be sustainable on a combination of two theories not considered by Buckley. First, the appeals court found that a rule of limited contributions but unlimited expenditures meant that candidates are dependent on"“bundlers" - individuals and interest groups who could "bundle" and deliver to candidates large numbers of contributions - thus creating a kind of corruption danger not foreseen by Buckley. Second, the appeals court found the combination of unlimited spending and limited donations forces candidates and officeholders to devote excessive time to fundraising. The appeals court said this argument had not been considered in Buckley, either.

And Pilades points to what he considers the key point:

Here is the key point: the Court in this decision makes as clear as it has in any constitutional decision involving democratic institutions that the Court views itself as having an essential role to play in preserving the structural integrity of the democratic process. None of the harms noted above involve individual First Amendment rights in any conventional sense. That is, the reason Vermont's contribution limits are too low is not because an individual has a First Amendment personal right to contribute more than $200 to a candidate for state representative (the Vermont cap) but no First Amendment right to contribute a higher amount that the Court would find constitutional, such as $500 to the same candidate. This is precisely the point at which Justice Thomas' dissent, joined by Justice Scalia, press at the foundation of the Court's decision: the central principle of Justice Thomas' dissent is that, either individuals do have First Amendment rights to contribute, in which case no limits on contributions should be constitutional, or they do not, in which case the Court's opinion cannot be justified. Justice Thomas endorses the former view.

Instead, today's decision rejects the view that individuals have a general First Amendment right to make unlimited campaign contributions, just as the Court has rejected that view in the past. But at the same time, the decision holds that, at some point, limits that are too low threaten the election process itself. That is, the decision rests on the principle that there is a risk that those who currently hold office - current legislators -- can regulate elections in a way that insulates themselves improperly form competition and that undermines the integrity and accountability that should be central to democracy and democratic elections. Most importantly, constitutional law and the Supreme Court must play a role in responding to that risk, according to the principles of the Vermont decision.

Well, like usual, nothing is simple.