So there are campaign contribution limits that are too low.

• Author: Bopp, James, Jr.

INTRODUCTION

When Congress approved contribution limits for candidates for president of the United States and Congress in 1974, it was the first time in our nation's history that contributions to federal candidate campaigns had been limited. The U.S. Supreme Court in Buckley v. Valeo approved these limits because they precluded "large" contributions, which the Court found gave rise to the specter of "actual or perceived corruption." (1) But after the Supreme Court's 2000 decision in Nixon v. Shrink Missouri Gov't PAC, (2) courts (3) and commentators (4) believed that no contribution limit was too low. The 2006 Supreme Court case of Randall v. Sorrell (5) tested that proposition and by a six to three vote found Vermont's campaign contribution limits too low. The 1974 federal contribution limit was set at $1000 per election; Vermont's limits varied by office with a gubernatorial candidate limited to $400 per election cycle. (6) Adjusted for inflation and per election, Vermont's gubernatorial limit amounted to about fifty-seven 1976 dollars. (7) If the Supreme Court had upheld the Vermont limits, there truly would have been no contribution limit too low.

The Supreme Court has used "intermediate" rather than "strict" scrutiny to examine contribution limits. While they "impinge on the protected freedoms of expression and association," (8) the limits need only be "closely drawn" to a "'sufficiently important interest'" for the limits "to avoid unnecessary abridgment of First Amendment freedoms." (9)

The only sufficiently important interest so far found is the interest in preventing real or apparent corruption. (10) If the government can show that its limits further this interest, it must further show that the limits are closely drawn by establishing that challengers can mount effective campaigns under the limits. Finally, limits on contributions from parties to their candidates will fail constitutional scrutiny if they prevent candidates from effectively campaigning and will also fail if they infringe on the associational or speech rights of parties. (11) The first Part of this Article will briefly recount the history of contribution limits and the constitutional rights that are implicated by such limits. The second Part will outline the analysis the Supreme Court has provided to guide lower courts, governments, and litigants when dealing with this issue and will also discuss the current and future status of contribution limits.

1. THE HISTORY OF CONTRIBUTION LIMITS AND ASSOCIATIONAL INTERESTS

   1. CONTRIBUTION LIMITS INFRINGE ON ASSOCIATIONAL INTERESTS.

      Contribution limits "operate in the area of the most fundamental First Amendment activities." (12) Because "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution," the Supreme Court has proclaimed that "[t]he First Amendment affords the broadest protection to such political expression in order 'to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" (13)

      In reviewing whether a statute violates the right to associate for politically expressive purposes, it is critical to recall that "[t]he Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties." (14) So important is this right that the Supreme Court reaffirmed in the context of campaign finance limits that "the freedom to associate is subject to the closest scrutiny." (15) Infringements on such rights "may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." (16) This standard affirms Buckley, which has long been cited for the proposition that the "right of association may be limited by state regulations necessary to serve a compelling interest unrelated to the suppression of ideas." (17)

      In practice, judicial scrutiny of associational infringements has generally followed a two-tiered approach depending on whether or not the restriction served to prohibit an expressive element of the association. This distinction is demanded because a restriction that leaves the expressive purpose intact while targeting non-expressive elements of the association does not "abridge the freedom of speech," while a restriction that thwarts the expressive purpose does abridge the freedom of speech and thereby violates the First Amendment. For example, statutes barring political parties from endorsing candidates have been struck down under a standard of strict scrutiny, (18) as have those which prevented parties from setting their own criteria for who could vote in their nominating elections. (19) But a provision that allowed candidates to be listed on the ballot as the nominee of only one party was upheld under a lesser standard because it left a party "free to try to convince" candidates to accept its nomination rather than that of another party. (20)

      Similarly, a state law requiring a Boy Scout troop to allow homosexuals to serve as scoutmasters was struck down because such a forced association would compel the organization to "propound a point of view contrary to its beliefs." (21) In contrast, a similar law forcing business clubs to admit female members was permissible as applied to groups for which admitting women would not "impede the organization's ability to ... disseminate its preferred view." (22) Likewise, laws requiring voters in party primaries to declare their party affiliations long before the primary were allowed only where they enabled all voters with sufficient foresight to vote in their desired primaries. (23) With regard to campaign contributions, the Supreme Court has identified two expressive purposes of the political association created by such a contribution. The lesser of these is a "symbolic expression of support," which "serves to affiliate a person with a candidate." (24) Because the symbolic endorsement of a candidate by a donor "does not increase perceptibly with the size of his contribution," (25) a contribution limit which only implicates this interest does not suppress ideas and may be sustained where "closely drawn" to a "sufficiently important interest." (26)

      Stronger scrutiny is necessary when contribution limits thwart the more crucial aspect of donor-candidate associations of "enabl[ing] like-minded persons to pool their resources in furtherance of common political goals." (27) Where contribution limits are high enough to permit candidates "to aggregate large sums of money to promote effective advocacy," this purpose is not defeated. (28) However, contribution limits which are set too low can create "a system of suppressed political advocacy that would be unconstitutional." (29)

   2. LOW CONTRIBUTION LIMITS SUPPRESS EXPRESSION BY PREVENTING CANDIDATES FROM EFFECTIVELY CAMPAIGNING AND OPERATE AS DE FACTO EXPENDITURE LIMITS.

      When limits are set too low, they act as back-door expenditure limits due to their effect of limiting the funds candidates can amass for their campaigns, resulting in a reduction of campaign speech. Such a scheme is illegitimate under the First Amendment. As the Supreme Court stated in Buckley:

      The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government but the people--individually as citizens and candidates and collectively as associations and political committees--who must retain control over the quantity and range of debate on public issues in a political campaign. (30) Furthermore, legislating for the impermissible purposes of the "suppression of ideas" is unconstitutional, (31) and was fatal to the limits at issue in Colorado Republican Federal Campaign Committee v. FEC ("Colorado I"):

      This Court's opinions suggest that Congress wrote the ... [p]rovision not so much because of a special concern about the potentially "corrupting" effect of party expenditures, but rather for the constitutionally insufficient purpose of reducing what it saw as wasteful and excessive campaign spending. (32) Likewise, the contribution limits enacted by the Vermont legislature that were considered in the recent case of Randall v. Sorrell, (33) were enacted with the intent to force a reduction in overall campaign spending. The limits to candidates ranged from $200 to $400 per election cycle depending on the office sought and applied to individuals, political committees, and political parties. (34) The legislature also enacted expenditure limits, ranging from $2000 per election cycle for state house representatives in single member districts to $300,000 election cycle for gubernatorial candidates. (35) The original version of the bill did not include the mandatory spending limits but did include the low contribution limits (36) and was lauded by Governor Howard Dean as a plan which "limits the amount of money candidates can spend in both primary and general elections." (37) Similarly, the bill's sponsor testified in the committee hearings, before the mandatory spending limits were inserted in the bill, that the bill had two principal goals: (1) "to reduce and control expenditures on election campaigns" and (2) to provide public funding. (38) The legislative counsel also described a principal goal of this bill as "to reduce and control the expenditures on election campaigns" through low contribution limits. (39) Once the bill had been amended to include mandatory spending limits, the legislative counsel reiterated that "[t]he bill as amended would control campaign expenditures by establishing mandatory campaign expenditure limits applicable to all candidates.... The bill would also limit campaign expenditures by limiting the amounts...