The slow, just, unfinished demise of the Buckley compromise: Randall v. Sorrell.

• Author: Coleman, James

In 1976, the Supreme Court decided Buckley v. Valeo, (1) laying out the fundamental compromise that has guided campaign finance decisions ever since. Buckley held that though the government could not restrict how much a campaign spent, it could restrict how much a person contributed to a campaign. (2) This compromise has been under constant attack. (3) On one side are those who think that contribution limits violate the First Amendment; (4) on the other side are those who think that expenditure limits are necessary to improve the democratic process. (5) As it attempts to straddle this divide, the Court's jurisprudence has constantly threatened to veer to the left or the right. The distinction underlying the compromise has also proved slippery. The Court has struggled to define when a person's purportedly independent expenditure is so coordinated with his favored candidate that it is really a contribution. It has also failed to express how much a contribution limit can be lowered before it functions as an unconstitutional limit on a candidate's spending. Last Term in Randall v. Sorrell, (6) the Supreme Court held that Vermont's contribution limits violated the First Amendment because they were too low. (7) Though the plurality correctly found the contribution limits unconstitutional, its narrow and unpersuasive opinion does not provide enough protection for First Amendment interests. The plurality opinion illustrates why Buckley's compromise is untenable and should be overruled.

In 1997, Vermont adopted campaign finance legislation that imposed new restrictions on how much a person or party could contribute to a campaign and on how much a campaign could spend. (8) Both the expenditure and contribution limits applied to the total campaign, including both the primary and the general election. (9) The contribution limits were very low: $400 for statewide offices, $300 for state senators, and $200 for state representatives. (10) They were not indexed for inflation. (11) Moreover, they applied equally to individuals and parties. (12) Soon after the new law took effect, candidates, contributors, and parties sued the state officials who were required to enforce it. (13)

The United States District Court for the District of Vermont largely stuck to the Buckley dichotomy. Bound by respect for Buckley's precedent, the court struck down the Vermont Act's expenditure limits (14) and upheld the contribution limits for individuals. (15) In a slight departure from Buckley, however, it struck down the contribution limits as applied to parties, judging them unconstitutionally low. (16)

The Second Circuit agreed with the trial court that the Act's contribution limits on individuals were constitutional, noting that the Act allowed more contribution dollars per citizen in the relevant jurisdiction than the Missouri limits that were upheld in Nixon v. Shrink Missouri Government PAC. (17) The Second Circuit also held, however, that the limits on parties were constitutional, reversing the District Court. (18) It further held that even the expenditure limits might be constitutional, finding them supported by two compelling interests: the need to prevent corruption and the appearance of corruption, which the Supreme Court had recognized in Buckley; (19) and the need to reduce the time officeholders have to devote to fundraising. (20) The Second Circuit remanded the case to the District Court to decide whether the expenditure limits were narrowly tailored to serve these interests. (21)

The Supreme Court reversed. (22) Announcing the judgment of the Court and writing for a plurality, Justice Breyer invalidated both the expenditure and the contribution limits. (23) In his opinion, joined by Chief Justice Roberts and joined in part by Justice Alito, (24) Justice Breyer explained that Buckley demanded that the spending caps be struck down. (25) He stated that there was no "special justification" for overruling Buckley that could overcome the principle of stare decisis. (26) Justice Breyer found that Buckley could not be distinguished by a supposedly newfound interest in protecting officeholders' time; he concluded that that interest had already been considered by the Buckley Court. (27) Moving to the contribution limits, Justice Breyer found that they were too low to be constitutional, "prevent[ing] candidates from amassing the resources necessary for effective [campaign] advocacy" and "put[ting] challengers to a significant disadvantage" compared to incumbents. (28) Thus, for the first time, the Supreme Court held that a system of contribution limits was unconstitutional. (29)

Justice Breyer laid out a two-step test for determining whether a contribution limit is too low. First, a court should look for "danger signs" that a contribution limit would "prevent[] challengers from mounting effective campaigns against incumbent officeholders." (30) If a court finds danger signs, then it should then "review the record independently and carefully" to "assess[] the proportionality of the restrictions." (31) The plurality found danger signs in the Vermont contribution limits because they were lower than in most states, applied to parties as well as individuals, included both the primary and general campaigns, and were not indexed for inflation. (32) Justice Breyer's subsequent review of the record convinced him that the limits were too low, based on five considerations "[t]aken together": (33) (1) "the record suggests ... that [the] contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns"; (34) (2) limits were applied to parties as well as contributors, threatening freedom of association; (35) (3) the limits included expenses incurred by volunteers; (36) (4) the limits were not indexed for inflation; (37) and (5) there was no special justification for extremely low limits in Vermont. (38) The plurality concluded that it could not determine how Vermont would want it to sever the unconstitutional aspects of the contribution limits and thus struck the entire system of contribution limits down. (39)

Justice Alito wrote a short separate opinion, concurring in part and concurring in the judgment, (40) to note that he did not find that stare decisis required adherence to Buckley. (41) Justice Alito...