A Stitch in Haste

The Supreme Court has agreed to hear three cases challenging the constitutionality of a Vermont law capping campaign expenditures by candidates, a law expressly contrary to the Court's ruling in Buckley v. Valeo, 424 U.S. 1 (1976). Buckley held that, at least for federal elections, limits on campaign contributions to candidates were constitutional, but limits on campaign expenditures by candidates are a violation of the First Amendment. One would think, since the First Amendment has been been fully incorporated to apply to the states via the Fourteenth Amendment, that a state limit on a candidate's expenditures must also be a First Amendment violation.

In any event, wouldn't it be grand if the Court used this opportunity to revisit and reverse the schizophrenic holding of Buckley and rule that people have a unlimited First Amendment right to spend their money as they see fit?

Buckley may be the most bizarre Supreme Court case I've ever read. Why exactly does it make sense to say that Mike Bloomberg can spend $70 million to get re-elected mayor of New York, but I can't spend $70,000 to oppose him (unless I run for mayor myself)? Money used to buy a campaign ad is either speech or it isn't — who's spending the money is utterly irrelevant. A campaign ad is a campaign ad — how can it matter who paid for it?

To the extent "who paid for it" does matter, that can be addressed by disclosure rules. They might not be as "free society" as libertarians might like, but they're certainly better than outright limits.

Furthermore, how can a limit on campaign contributions make sense within the context of the First Amendment? Money is homogeneous — how can some of it be permissible and some of it not? In other words, how can the one thousandth dollar I spend be a valid exercise of my First Amendment rights, but the one thousand first dollar not be? Such a doctrine is unforgivably nonsensical.

That part of Buckley v. Valeo that upheld limits on campaign contributions was wrongly decided and should be overturned.

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One of the reasons Buckley v. Valeo is such a bizarre and self-contradictory opinion is because it apparently was a "split the baby" decision. The ruling was per curiam, but five different justices wrote separate decisions "concurring in part and dissenting in part." Rather than debate endlessly about whether "money is speech" either always or never, they opted instead for a nonsensical "sometimes." That is not the kind of legal reasoning that is entitled to stare decisis.

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The lead case is Vermont Republican State Committee v. Sorrell, No. 04-1530. Links and a good background discussion are available from Election Law Blog. More thoughts at Rossputin.