Campaign Finance Bellwether

Monday, July 3, 2006

AT FIRST GLANCE, the Supreme Court's decision last week striking down Vermont's campaign finance laws may seem like a defeat for proponents of reasonable regulation of election money. The court voided the toughest contribution limits in the country and refused Vermont's invitation to reconsider its long-standing hostility toward legal limits on campaign expenditures. In the long run, however, the decision may prove more silver lining than cloud. The Vermont rules never stood much of a chance; they are so strict as to present genuine problems. The important feature of the case is not its specific result but the way the court -- and its two newest justices -- reached that result. On this point, the decision is promising.

Ever since the Supreme Court handed down its landmark 1976 decision in Buckley v. Valeo , it has treated legal limits on campaign expenditures with the gravest of suspicion and treated limits on contributions to campaigns as presumptively valid as long as they are not too low. Both of these holdings have had detractors ever since. One flank, mostly conservatives, believes that contribution limits, too, are unconstitutional. The other, mostly liberals, wants to give legislatures control of spending limits. The Vermont law tested both prongs of Buckley . It not only contained a spending limit for state offices but also set contribution limits lower than does any other state in the country. The limits of $200 to $400 per election cycle, in constant dollars, amount to about one-twentieth of the $1,000 federal limit the court upheld in Buckley .

It is thus no surprise that the court balked. While the three most liberal justices, in dissent, would have used the case to give legislatures more authority on spending limits, this was never a plausible outcome. Rather, the case posed the danger that the court's new members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., would join with the three justices who take a far more restrictive view of campaign finance under the First Amendment and would radically scale back legislative power to restrict money in politics. Not only did that not happen, but both joined an opinion by Justice Stephen G. Breyer that analyzes the Vermont law in the context of Buckley . In other words, despite an opportunity to declare themselves hostile to campaign finance regulation in general, both signed on -- Justice Alito somewhat equivocally -- to the court's long-standing doctrine that appropriately crafted contribution limits can survive constitutional scrutiny.

This is a far more significant development than the fate of Vermont's statute. It suggests that, notwithstanding the turnover in the court's personnel, a revolution in campaign finance law may not be in the offing.

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