Free Speech, Campaign Finance Reform, and the Roberts Court

[A18]

http://docket.medill.northwestern.edu/archives/003091.php
Randall v. Sorrell / Vermont Republican State Committee v. Sorrell / Sorrell v. Randall

Cases consolidated.
Subject: Campaign financing, 1st Amendment speech & association

Questions presented:
(1) Whether Vermont's mandatory limits on candidate expenditures violate the 1st and 14th Amendments and the Supreme Court's decision in Buckley v. Valeo?
(2) Whether Vermont's treatment of independent expenditures by political parties and committees s presumptively coordinated if they benefit fewer than six candidates, and thereby subject to strict contribution and expenditure limits, is consistent with the 1st and 14th Amendments and the Supreme Court's decision in Colorado Republican Federal Campaign Committee v. FEC?
(3) Whether Vermont's contribution limits, which are the lowest in the country, which allow only a single maximum contribution over a two-year election cycle, and which prohibit state political parties from contributing more than $400 to their gubernatorial candidate, fall below an acceptable constitutional threshold and should be struck down?

Discuss.

[Emsworth]

Any limit on a candidate's expenditures is undoubtedly unconstitutional. Under the First Amendment, an individual is entitled to spend as much as he pleases on speech. Restricting the amount of money one can spend on speech amounts to restricting the freedom of speech itself. This is especially true considering the type of speech involved: political speech, the primary object of First Amendment protection.

Contribution limits are unconstitutional for the same reason. As Chief Justice Burger wrote, "contributions and expenditures are two sides of the same First Amendment coin." Instead of spending money on speech individually, contributors spend money on speech collectively. Of course, the First Amendment protects the rights of groups just as much as it protects the rights of individuals. Contributions, just like direct expenditure, constitute a form of political speech, and are entitled to First Amendment protection.

It is sometimes argued that the freedom of speech must be balanced against other interests, such as avoiding corruption. The Constitution, however, contains no such rule. It does not say that the freedom of speech may be abridged if it is in the public interest to do so.

(1) In Buckley v. Valeo, the Supreme Court struck down federal laws limiting campaign expenditures on First Amendment grounds. According to the per curiam opinion, "expenditure ceilings impose direct and substantial restraints on the quantity of political speech" and "limit political expression." The same principle, obviously, applies to the state governments, making the Vermont expenditure limits unconstitutional.

(2) The presumption of coordination clearly seems to be contrary to the Supreme Court's precedents. In Colorado Republican Federal Campaign Committee v. FEC, the Court insisted on "actual coordination with candidates as a matter of fact." A mere presumption of coordination, unsubstantiated by an "emprical judgment," is insufficient.

(3) As I indicated above, I believe that all contribution limits are unconstitutional. However, if we accept the principle that political contributions are not "speech," then I do not see how any particular limit can be deemed "too low." No doubt, there will be some Justices who hold the arbitrary and whimsical opinion that a $400 contribution limit violates the First Amendment, but a $401 limit does not.

[True Federalist (진정한 연방 주의자)]

Politically, I'm in favor of campaign financing transparency, which we currently lack, rather than arbitary limits.  However, unless the Court intends to overturn established precedents, which I'm doubtful of, the expenditure limits will be struck down, the contribution limits will be upheld, and whether the presumption of coordination will be upheld will depend upon how difficult it is for that presumption to be rebutted.  If the law imposes an undue burden in rebutting the presumption of coordination, it'll get struck, with Kennedy effectively getting to decide what constitutes an undue burden here.

[A18]

Argument day for Randall v. Sorrell