Supreme Court Takes On Spending Limits for Candidates

By LINDA GREENHOUSE

Published: September 28, 2005

WASHINGTON, Sept. 27 - The Supreme Court opened a new chapter in the long-running debate over the role of money in politics on Tuesday by agreeing to decide whether Vermont's strict limits on campaign spending and contributions are constitutional.

The court's action suggested, although it did not guarantee, that the justices might be ready to revisit their 29-year-old precedent, Buckley v. Valeo, which in equating money with speech has been widely interpreted as ruling out any restrictions on expenditures by candidates.

Whether the court is embarking on a fundamental reappraisal of its campaign precedents, or whether it is intervening to clear up growing confusion in the lower courts, the case will inevitably become a highlight of the Supreme Court's new term, which formally begins on Monday.

Vermont is the only state to have placed limits on candidates' spending. Its contribution limits, $400 to candidates for statewide office during a two-year election cycle and lower for other offices, are the tightest in the country.

The justices, as has been their recent custom, got a jump on the term by adding cases to the new term's calendar from among those that arrived during the summer recess. On Tuesday's list, there were 11 new cases, which will be argued in January and February.

The Vermont case underscored the significance of the transition the court is now facing as it awaits not only the arrival of John G. Roberts Jr., who is expected to be confirmed by the Senate on Thursday as the next chief justice, but also a successor to Justice Sandra Day O'Connor.

Justice O'Connor, who will retire when her successor is confirmed, took part in selecting the new cases on Tuesday. As in many other areas of law, she has been at the center of the court in campaign finance cases, and cast the deciding vote two years ago when the court upheld a major new federal campaign finance law, the Bipartisan Campaign Reform Act, more commonly known as the McCain-Feingold law. The late Chief Justice William H. Rehnquist was one of the dissenters. The 5-to-4 decision upheld curbs on the unlimited contributions to political parties known as soft money.

A second new campaign finance case that the justices accepted on Tuesday challenges the application of another section of that law, asking the court to establish as exception for "grass-roots lobbying" to the ban on corporate funding of certain advertisements in the weeks before election day.

The Vermont law was enacted in 1997 as a direct challenge to the Supreme Court's campaign finance precedents, or as Vermont's secretary of state, Deborah L. Markowitz, put it in an official memorandum, with the "express legislative goal of giving the Supreme Court an opportunity to re-evaluate its decision in Buckley v. Valeo."

While the law's strict contribution limits were notable, its main departure was in restricting campaign expenditures. Candidates for governor, for example, are limited to spending $300,000 during a two-year election cycle, regardless of whether the cycle includes a primary election.

In a 2-to-1 ruling last year, the United States Court of Appeals for the Second Circuit, which includes Vermont, endorsed the state's basic approach. It held that the state had correctly concluded that Buckley v. Valeo was not a complete prohibition on spending limits, but that such limits could be justified by rationales beyond the anticorruption rationale that the Supreme Court considered at the time.

These additional rationales included two that the appeals court panel's majority said were now "compelling": addressing the growing public cynicism about the impact of money on politics, and limiting the amount of time that candidates had to devote to raising money.

The appeals court then sent the case back to the federal district court in Vermont for a determination of whether in setting its spending limits, Vermont had chosen a sufficiently "narrowly tailored" means of achieving its valid objectives. In another portion of its ruling, the appeals court upheld the contribution limits.

The full appeals court then debated whether all 11 judges should rehear the case, and decided against rehearing by a vote of 6 to 5. The dissenters argued forcefully that no matter what state officials or lower court judges had to say, only the Supreme Court itself had the authority to cast Buckley v. Valeo in a new light.

Ordinarily, the Supreme Court refuses to hear a case that has not proceeded to a final judgment in the lower court. But the justices were evidently persuaded that the Second Circuit panel's analysis merited review without waiting for an answer to the "narrow tailoring" inquiry. The district court has not yet issued its ruling.

The attorneys general of Connecticut, New York and 11 other states filed a brief urging the court to hear the case and decide the "critical issue" of the constitutionality of spending limitations, which the officials said were the subject of growing confusion in the lower courts and mounting interest among state and local legislators. Federal appeals courts have recently invalidated spending limits enacted by the cities of Albuquerque and Cincinnati.

The plaintiffs who challenged the Vermont law, and who filed appeals in the Supreme Court, were the American Civil Liberties Union and a coalition represented by the James Madison Center for Free Speech in Terre Haute, Ind. That coalition included the Vermont Republican State Committee, the Vermont Libertarian Party and the Vermont Right to Life Committee.

The Supreme Court accepted both appeals: Randall v. Sorrell, No. 04-1528 (the American Civil Liberties Union's case) and Vermont Republican State Committee v. Sorrell, No. 04-1530.

In addition, the court accepted a separate appeal, Vermont Public Interest Research Group v. Randall, No. 04-1697. Represented by the National Voting Rights Institute, an advocacy group that supports spending limits, the Public Interest Research Group said it supported the Second Circuit's decision and would offer additional rationales in support of spending limits.

"The broader governmental interest in political equality among citizens also deserves consideration," the group said.

The American Civil Liberties Union's brief called the Second Circuit's opinion a dramatic departure from the Supreme Court's precedents. The First Amendment does not permit the state to decide how much speech is enough for either candidates or voters," the brief said.

The second campaign finance case the justices accepted on Tuesday was Wisconsin Right to Life Inc. v. Federal Election Commission, No. 04-1581. In its 2003 decision rejecting a broad challenge to the McCain-Feingold law, the Supreme Court upheld a provision that restricted the use of corporate treasury funds to pay for "electioneering communications" during a 60- or 30-day window before general or primary elections. The prohibited communications are those that refer to a clearly identified candidate for public office.

The Wisconsin Right to Life organization is arguing that although it is a corporation, it should be permitted to challenge the broad prohibition as applied to the sort of "grass roots lobbying communications" that it seeks to broadcast. A special three-judge federal district court here dismissed the case in May of this year as foreclosed by the Supreme Court earlier ruling