Supreme Court strikes down Vermont campaign finance law

In a fractured decision, the Supreme Court ruled that the Vermont campaign contribution limits (from $200 to $400) were unconstitutional.

From CNN:

The 6-3 ruling deeply divided the high court, with justices issuing six separate opinions, and failing to reach an over-arching consensus on the issue. ... Writing for a shaky majority, Justice Stephen Breyer concluded the laws, "disproportionately burdens numerous First Amendment interests, and consequently, violates the First Amendment."

From the Boston Globe:

Breyer wrote that, "At some point, the constitutional risks to the democratic electoral process become too great." Preventing corruption or its appearance is a noble goal, "yet that rationale does not simply mean 'the lower the limit, the better.'" ... The court's opinion did not overturn its last major campaign finance ruling, Buckley vs. Valeo of 1976, despite the desire of Justices Anthony M. Kennedy, Clarence Thomas and Antonin Scalia to do so. That decision limited campaign contributions but not expenditures by candidates.

Read the full decision (PDF) from the Supreme Court.

Question: What implication does this have, if any, for the campaign finance initiatives intended for Oregon's general election ballot? What about Portland's voter-owned elections system?

  • Janice Thompson (unverified)

    The key element of this decision in terms of public funding reform like Portland's Voter-Owned Elections is that the Supreme Court overturned mandatory spending limits that were also in the Vermont law. Voter-Owned Elections, then, continue to be the only constitutional approach to putting limits on overall campaign spending because participation is voluntary.

    In terms of the Court's overturning Vermont's contribution limits it is important to note that the underlying idea of limiting contributions wasn't overturned. Rather the Vermont limits were specifically overturned with the decision mapping out five criteria for assessing contribution limits.

    This press release from the National Voting Rights Institute includes a summary of the five criteria,

    I'll leave it up to folks more familiar with initiative petition #37 to evaluate it in terms of these five factors used in this decision.

  • (Show?)

    This is part of what looks like a very quiet revolution to me. While everyone was looking at social issues, the GOP managed to put two justices on the court who have a long record of siding with entrenched power. This decision is great news for big money, not so great for states who want to limit money in politics. Last week, the Supremes backed developers over the Clean Water Act. What is emerging is that the Court seems ready to overturn much of the legislation that was the hallmark of the great progressive era in US politics. Expect the world to look a lot riskier and more hazardous; expect citizens' ability to fight these dangers to decline. This is just the start.

  • askquestions1st (unverified)

    What it says first is that Ron Wyden and the rest of the kind of Democrats who actually defended a vote for Roberts are part of the problem, not part of the solution.

    What it says second is that Dems are going to have to get a lot smarter, and a lot tougher in speaking out than has been the history of the last few years.

    Here's a proposal for discussion: If Dems do manage to take control of the Senate, how about if the political infrastructure including the blogosphere touching off a seismic shift in the balance of power by making the character and integrity of five Supreme Court justices a matter of controversy: Scalia, Kennedy, and Thomas for illegally intervening in the 2000 Florida Election recount (remember they even said their decision was a one-off for their preferred candidate and had no precedential standing), Roberts for unexamined "inconsistencies" in his statements under oath about his anti-Roe legal activism during his confirmation hearing and his unethical behavior in the Hamdan case, and Alito for lying under oath about his involvement and memory thereof in the Concerned Alumni of Princeton (among other things). The best way to curb the unprincipled excesses of this ultra-radical pro-authoritarian activist court is to work towards a balanced media environment in which the right and ability of these five justices to exercise such power is legitimately in question.

  • Gil Johnson (unverified)

    Well, the Dems will never do any of the above. I say we get a small group of people to pose as right wing billionnaires and invite Scalia out to a fancy resort in Wyoming. Let him taste a lot of fine wine and have a few cocktails, then give him the keys to a new Ferrari, which unfortunately has had the GPS system messed with, and let him driver over a cliff.

    Oh my, as Nixon told Haldeman, "But that would be wrong."

  • Jennifer W. (unverified)

    Jeff called the appointment of two conservative jurists a "very quiet revolution"...Quiet? Excuse me?

    Does the word "Scalito" ring a bell? Maybe you read something about John Robert's wife leaving the hearings in tears? The liberals hardly gave Alito or Roberts a pass: there weren't enough liberals to influence the outcome.

    The confirmation hearings hardly went unnoticed. If the progressives want to have more influence on future Supreme Court nominees, nominating a Presidential candidate with higher positive than negative attributes would be a good place to start (translation: no Hillary). And let the Screaming Man go back to Vermont so he can nationalize maple syrup production, or maybe even move Vermont to Canada (but only if Bernie and Leahy promise not to come back). Heh, heh.

  • Buckman Res (unverified)

    “Voter-Owned Elections, then, continue to be the only constitutional approach to putting limits on overall campaign spending because participation is voluntary.”

    Unfortunately, contributions to Taxpayer Funded Campaigns (TFC) are not voluntary for the citizens whose dollars are wasted on this now-proven failure to “clean up” local elections.

    Now we hear that the money given to Ms Boyles for her campaign is not likely to be recovered, money that could have go to vital city services.

    Let the taxpayers vote on TFC, that’s what should have been done from the get-go.

  • (Show?)

    Roberts was always a wash. Scalito was the justice that should have been stopped.

    Proven failure to clean up elections? I thought the person who was dirty got caught?

  • Bob Tiernan (unverified)

    This is a very good decision, although I'd have been much happier had they overturned the dreadful decision regarding McCain-Feingold. It's not activist for a Supreme Court to protect individuals from state and local governments erasing rights (which is the system we're supposed to have, rather than the post-Slaughterhouse view of states rights that has prevailed for a century or more (particularly after the New Deal).

    All state limitations ought to be looked at. I don't know about "Voter-Owned" elections (funny, I don't feel as if I own elections, and wouldn't want to anyway. Does that mean I get to limit who runs?).

    Now to the comments:

    Jeff Alworth: This is part of what looks like a very quiet revolution to me. While everyone was looking at social issues, the GOP managed to put two justices on the court who have a long record of siding with entrenched power.

    I wasn't aware that defending the First Amendment equates siding "with entrenched power". But I guess if one says that often enough....

    This decision is great news for big money, not so great for states who want to limit money in politics.

    I.e. states that want to limit the First Amendment.

    What is emerging is that the Court seems ready to overturn much of the legislation that was the hallmark of the great progressive era in US politics.

    Much of it needs to be overturned because of violations of individuals' rights, particularly economic rights. Some of it is just fine, but government was empowered a great deal by such legislation, and things got even worse with the New Deal court. "Good" ideas are not always Constitutional.

    Gil Johnson: I say we get a small group of people to pose as right wing billionnaires and invite Scalia out to a fancy resort in Wyoming....

    We could have used a few more Scalias on the court when the Kelo case was decided. That decision was the inevitable result of many decades of watering down of property rights in this country. You were probably one of the many who kept looking the other way until it was too late, but we'll save that for another time.

    Bob Tiernan

  • (Show?)

    My take is that the decision is no problem for Petition 37.

    I have read the various opinions and the dissents (3 dissenters). There is no "majority" opinion per se but a series of "concurrences" to a plurality opinion by Breyer, Alito, and Roberts. There is no doubt, however, that the Breyer opinion was effectively a majority decision.

    Bottom line is that the Court struck down Vermont's overall limits on what a candidate's campaign can spend in an election campaign. Our Petition 37 contains no such limitations. Under Petition 37, a candidate's campaign can spend all the money it obtains in compliance with the contribution limits. This is similar to the laws in 44 other states with contribution limits.

    The Court also struck down Vermont's contribution limits. It appears that a very major reason was that the statute limits what a political party can contribute to a statewide candidate to only $200 per election. Our similar limit in Petition 37 is $50,000. Also, Vermont limited what a political party could contribute to a legislative candidate to $150 per election. Our similar limit in Petition 37 is $10,000. The Court mentioned that, in contrast to Vermont, 7 states limit contributions to candidates in statewide races to $500 or below but that those states do not impose such draconian limits on political parties. There were other reasons as well, none of which apply to our Petition 37.

    Nevertheless, it would have been nicer if the Court had upheld the Vermont limits.

  • (Show?)

    Actually, our limits on what a political party can contribute to a candidate are much higher than I stated above, because the Petition 37 limits are not "per party" but are "per party finance committee." Every party organization can have its own "party finance committee," including the state party or any "subdivision thereof." As I have stated elsewhere, Petition 37 limits how money gets into a political party but does not effectively limit how much of that money the party (including its subdivisions) can contribute to a particular candidate or otherwise assist a particular candidate. We made this change in early 2005, after consulting with local D party officials. That was one of the changes to Petition 7 that caused it to become Petition 37.

    How strange that this particular feature (how much a political party can contribute to a candidate) would become central to a subsequent U.S. Supreme Court decision.

  • (Show?)

    Don't Republicans spend around 20 hours out of every 24 railing against "activist judges", and the other four screaming about "states rights"?

    That is, of course unless they're arguing vehemently that money is somehow identical to speech. In such cases, simple logic and the "reasonable person" standard are nowhere to be found....

    It's a puzzler. Must be a "faith based" thing........

  • PanchoPdx (unverified)


    I'll agree that "money isn't speech" if you'll agree that "money isn't the right to have an abortion."

    Then it would presumably be kosher to prevent abortion clinics from charging more than $10 per proceedure and to prevent charitable organizations from donating more $50 to any abortion provider to offset expenses.

    Or if that analogy is too abstract, how about we limit payroll spending for Oregon newspapers to $50k a year per paper. They would still be free to speak all they want, print all they can sell. They would just have to come up with less expensive ways to provide content.

    Would you consider the US Supreme Ct activist if it struck down either example?

  • Tom Civiletti (unverified)


    Just how do your examples relate to the campaign finance issue? The motivation behind campaign finance reform, whether based on contribution limits or public financing, is that the present system subverts the democratic electoral process.

    Is the cost of abortion procedures causing unwanted pregnancy? Are newspaper payrolls causing periodical glut or some other societal problem?

    I don't think any campaign finance reform advocates claim that reform can have no effect on political speech. Clearly, that is the purpose of reform. Free speech rights must be balanced, however, with the integrity of the democratic system. Just as yelling "fire" in a crowded theater is not protected, neither should be a system that allows candidates to be purchased by the highest bidder.

  • PanchoPdx (unverified)

    Since when have liberals given into the idea that fundamental rights (like free speech) should be subject to a balancing test?

    If we balance the harms of pornography vs. it's regulation, surely an argument can be made that limiting obscenity would reduce some societal harms (ultra-feminists like McKinnon have made such arguments).

    On abortion, just suppose late term abortions become illegal (a possibility) one might then argue that abortion clinics should not have a profit motive, because it might be too great a temptation for them to perform those illegal late term abortions for the extra money.

    With newspapers, one might argue that since they are owned by wealthy people with political agendas that allowing them to speak "too loudly" will drown out the voices of the little people (or some such garbage).

    When you protect rights with balancing tests, you inevitably erode those rights.

    "Fire in a crowded theater" is an inapposite example. There, the speech itself is wrongful (it is a falsehood designed to cause harm).

    With campaign finance reform, there is nothing wrong with the political speech itself, only the feeling of uneasiness that exists from knowing that those speaking may feel an obligation to the people whose contributions made the speech possible.

  • Muzzled Citizen (unverified)

    "When you protect rights with balancing tests, you inevitably erode those rights."

    You are the definition of a hypocrite Poncho, and here is why:

    You are arguing that there should be no balancing test for rights at the same time you are effectively arguing that the balancing test should be how much cash a person is able to hand out. As the justices who support democracy stated in this decision, cash is property, not speech. To argue otherwise is to argue that I should also be able to talk a cop or a judge into forgiving my speeding tickets (or worse) the same way that you want to "talk" to your favorite crony in office.

    If you are not a hypocrite, Poncho, then you must argue that cash is a valid statement to a judge or jury.

  • (Show?)

    Again. Speech is speech and political expression (signs, flag burning, flag waving, demonstrations, I heart George bumper stickers) although not speech are certainly covered under the first amendment.

    Money, as it relates to speech is a tool to amplify the speech of some over the speech of others. The most honest analogy for money in this context is a bullhorn.

    As in: them with money gets one and them without don't.

    Through decades of effort, the corporatists have redefined money as speech and corporations as persons (but only in situations where it suits them). The fairness doctrine repeal has also further tilted the playing field so that fair play, which conservatives and liberals alike say that they espouse, is only a hazy and distant memory.

    Witness the division in the Democratic Party that splits between those to whom sucking up to big donors seems totally natural, and those who see it as fostering corruption.

    Oh yeah and slightly off topic: Why is Our Oregon actively trying to sabotage Dan Meek's efforts to take some of the money out of gummint and Chuck Sheketoff's efforts to mandate a bit more corporate transparency?

    Honest disagreement on minutiae might lead to a neutral position.......but outright efforts to derail seem like something a bit more distasteful.

  • PanchoPdx (unverified)

    Muddled Citizen:

    I've argued nothing of the kind. I won't take offense at your ad hominen, because your supporting argument is so shallow. You don't understand the concept of "rights" or the application of balancing tests to such rights.

    Reread my earlier post. I never said that "money = speech."

    My point was that if you try to apply simple syllogisms like "money is not speech" to other things (say to newspaper reporter salaries or abortion providers), you can justify regulations that significantly burden fundamental rights (freedom of the press or right to choose).

    If you can burden political speech because you fear that some politician might be secretly obligated by a donation, the government is free to burden other fundamental rights for other "worthy" causes.

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