Electing to Change
For the first time in 30 years, the U.S. Supreme Court will reconsider whether the First Amendment gives candidates a free-speech right to spend unlimited amounts of money to seek public office.
In the 1976 ruling Buckley v. Valeo, 424 U.S. 1, the court split the holding down the middle, striking down spending limits but upholding federal limits on contributions to candidates on the theory that corruption arose when politicians accepted huge contributions.
Since then, the nation has seen the rise of billionaire candidates, and near-billionaires, who launch their political careers by financing their runs for high office. Computer magnate H. Ross Perot and publishing heir Steve Forbes ran for president—neither successfully.
Others have used their money more effectively. In November, Michael Bloomberg spent $80 million of his fortune to help secure his re-election as mayor of New York City. The amount was roughly 10 times more than the campaign of Fernando Ferrer, the Democratic opponent. Four years earlier, Bloomberg spent $75 million to win—narrowly—the mayor’s job.
Across the Hudson River, New Jersey voters were treated to a barrage of negative TV ads sponsored by two enormously wealthy candidates for governor.
Democrat Jon Corzine, a former chairman of the investment banking firm Goldman Sachs, had spent $58 million of his own money to win a U.S. Senate seat five years ago. Last year, he spent another $40 million to win the race for governor over Republican Douglas Forrester, a wealthy businessman who spent $30 million on his losing campaign.
The impact of big campaign spending is not limited to the largest states, nor is it the exclusive province of wealthy candidates. “Money does buy access, and we’re kidding ourselves and Vermonters if we deny it,” the state’s governor said during his 1997 inaugural address. Since then, Howard Dean has gained a reputation for outspokenness as a Democratic presidential candidate and as chairman of the Democratic National Committee.
But Dean’s candid comment before Vermont’s lawmakers helped spur a move to set strict new limits on how much money could be contributed to candidates and how much they could spend. Under the 1997 law known as Act 64, candidates for governor could spend no more than $300,000, and state senate candidates were limited to $4,000.
The law also gave an edge to challengers. In statewide races, they were permitted to spend 15 percent more than incumbents. The reformers who sponsored the law said it would preserve grassroots democracy in the Green Mountain State.
CONSTITUTIONAL QUESTIONS
The new restrictions were challenged as unconstitutional by the Vermont Republican Party and by the American Civil Liberties Union, both of whom relied on Buckley. The Supreme Court will hear the combined cases on Feb. 28 to decide the issue. Vermont Republican State Committee v. Sorrell, No. 04-1530, and Randall v. Sorrell, No. 04-1528.
“Vermont has launched a direct assault against candidates’ rights of free speech, while leaving interest groups and the press free to spend unlimited amounts in elections,” says James Bopp, general counsel for the James Madison Center for Free Speech in Terre Haute, Ind., which represents the Vermont Republicans. “Such a scheme makes candidates bit players in their own elections.”
But Brenda Wright, counsel for the National Voting Rights Institute in Boston, says she hopes the Vermont case will force the Supreme Court to rethink the unlimited spending rule set in Buckley.
“This case is about the law catching up with political reality. It gives the court its first opportunity in the 30 years since Buckley to look at the real-world impact of unlimited campaign spending,” she says.
Campaign reformers say the relentless pursuit of money has corrupted the entire electoral system. “Now you have to be independently wealthy or you spend huge amounts of your time dialing for dollars,” Wright says. “This endless arms race for dollars undermines the democratic system in a way that Buckley did not anticipate.”
Defenders of the Vermont law also note that Buckley dealt with rules for federal candidates. The justices have not squarely decided whether cities and states may limit spending for their public offices.
STATE JUDGES ON ALERT
The outcome also will be closely watched by many state judges, says Deborah Goldberg, a lawyer for the Brennan Center for Justice in New York City. She filed an amicus brief on behalf of judges who say states should be permitted to limit spending in judicial races.
“State supreme court races have become much more expensive in recent years, and all the concerns over the money and politics are amplified for judges who are not supposed to make promises to a constituency,” Goldberg says. “It puts judges in the position of raising huge amounts of money from people who appear before them.”
The contribution limits set by Vermont were also quite low, and they are being challenged as well. Local candidates running for the state legislature or a county office could accept no more than $200 from a donor, while statewide candidates could accept $400 donations.
A federal district judge struck down the spending limits but upheld the contribution limits. After a protracted appeal, the 2nd U.S. Circuit Court of Appeals at New York City upheld both the spending and contribution limits; it said Vermont lawmakers had made a persuasive case that the relentless pursuit of campaign money was damaging to democracy.
“The race for campaign funds has compelled public officials to give preferred access to contributors, essentially requiring candidates to sell their time in order to raise campaign funds,” wrote Judge Chester Straub. Therefore, the state had shown a compelling interest in imposing spending limits, he concluded.
The outcome could rest with Judge Samuel A. Alito Jr., President Bush’s choice to succeed Justice Sandra Day O’Connor.
Three years ago, O’Connor cast the deciding fifth vote to reject a free-speech challenge to the McCain-Feingold Act, which barred unlimited “soft money” contributions to political parties. She agreed with the majority that money bought access to politicians, and that Congress had good reason to limit the free flow of cash. The Vermont case recycles those arguments, but before a recast high court.
MORE ON MCCAIN-FEINGOLD
Meanwhile, this month the court will take up a new challenge to the provision of the McCain-Feingold Act that bars incorporated groups from financing broadcast ads that refer to a “clearly identified candidate” for federal office 60 days before an election.
Fittingly enough, the case focuses on an ad that targeted Sen. Russell Feingold, D-Wis., the measure’s co-sponsor. The question is whether it should be seen as an “electioneering communication,” as the statute defined it.
In the TV ad, which aired in July before the 60-day period began, a pastor asks a simple question as church bells sound in the background: “And who gives this woman to be married to this man?” Rather than answer, the father launches a rambling discussion that includes “a few tips on how to properly install drywall.”
Says the voice-over announcer: “Sometimes it’s just not fair to delay an important decision.” Yet Democratic senators are filibustering President Bush’s judicial nominees, the announcer says, delaying an up-or-down vote. “Contact Senators Feingold and [Herb] Kohl and tell them to oppose the filibuster. … Paid for by Wisconsin Right to Life.”
That summer, Feingold was running for re-election. Wisconsin Right to Life went to court seeking an order that would shield it from the Federal Election Commission and permit it to run its ads in August and September.
It lost. A federal district court said the Supreme Court had already upheld the McCain-Feingold Act’s limited ban on corporate-funded, targeted ads prior to the election. U.S. Solicitor General Paul Clement also said the court’s 2003 decision in McConnell v. FEC, 540 U.S. 93, had “squarely foreclosed” the kind of as-applied challenge brought by Wisconsin Right to Life.
Nonetheless, when attorney Bopp appealed the question, the justices agreed to hear arguments. Wisconsin Right to Life v. FEC, No. 04-1581, scheduled for Jan. 17.
“This is about grassroots lobbying,” not an election campaign, Bopp says. “This is about the right to petition your government and to address government officials who are exercising power right now.”
Since the disputed ad concerned judicial filibusters, not Feingold’s re-election, the Wisconsin group is entitled to an exemption from the ban on corporate-funded ads, he says. In response, the FEC notes that the anti-abortion group had endorsed Feingold’s opponent and announced that his defeat “was a priority” for the organization. Feingold won re-election.
David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.
