Randall v. Sorrell - Oral Argument

Argument of James Bopp, Jr.

Chief Justice Roberts: We'll hear argument first this morning in 04-1528, Randall v. Sorrell, and the consolidated cases.

Mr. Bopp.

Mr. Bopp: Thank you.

Mr. Chief Justice, and may it please the Court--

As this Court made clear recently in Republican Party of Minnesota v. White, since political candidates are the ones who take office, it is imperative that they be allowed freely to express themselves on matters of current public importance.

As a result, this Court has never allowed the government to prohibit candidates from communicating relevant information to voters during an election.

Vermont, however, has adopted low expenditure and contribution limits for the opposite purpose, reducing overall candidate campaign spending, and these limits would have that effect.

This is fundamentally incompatible with any reasonable interpretation of the First Amendment and is not justified by any truly compelling governmental interest.

As a result, they are unconstitutional.

Now, Vermont's expenditure limits are an unprecedented, direct restraint on candidate speech.

Once these low expenditure limits are exhausted, a candidate may not drive to the village green to address a rally, may not return the phone call from a reporter at the local newspaper, and may not call a neighbor to urge her to get out to vote.

This Court has never allowed the government to prohibit candidates from communicating this sort of relevant information during a campaign.

Further, this Court has long held that more speech is better than less speech.

As long as contribution limits are available to address any realistic concerns about corruption, the public will benefit from candidates' being allowed to spend all that they can lawfully raise in their campaign.

Now, the record is clear in this case that the expenditure limits will deprive candidates of substantial resources.

The district court erroneously looked at average spending over the last three elections and found that in all but one category, that is, Senate candidates running in single member districts, that the average spending for all candidates in those campaigns were below the limits set by the expenditure limits in Vermont.

However, in Buckley, the last case for... where this Court considered candidate expenditure limits, the Court looked at the number of races affected, not the average spending in all races.

And in Buckley, the Court looked at the expenditures in U.S. Senate races and found that in previous election, that 26 percent were over the mandatory expenditure limits considered in Buckley, and in the House, 3 percent of the races had spending greater than the... these limits.

Justice Ginsburg: Mr. Bopp, would you clarify a procedural point?

As I understand it, on the expenditure issue, there is no final decision that has gone back to the district court for further proceedings.

Mr. Bopp: Well, there were... that is correct, that there is a remand.

Justice Ginsburg: And it may... the district court might... may well find that nothing passes constitutional muster in the end.

Mr. Bopp: Well, they could potentially, yes.

However, the... the Second Circuit did... did make decisions of law.

They found that these two interests that the State is alleging, that is, in preventing corruption and in conserving incumbent time, were together a compelling governmental interest, and we... we allege that they are not and that on this record, this Court can determine that they are not... they are not together a compelling governmental interest.

Justice Ginsburg: Are you arguing now then that there may be no limits on expenditures?

Mr. Bopp: Well, the... this Court has now considered, including this case, a dozen times in which the government has sought to limit expenditures, either of candidates or PAC's or political parties, and despite the work of the most brilliant lawyers in the United States, they have not come up with any compelling governmental interest that this Court has accepted.

And we believe that this record demonstrates that these claimed interests either are not compelling or are not proven.

Now--

Justice Souter: Do you... when... when you make that point, that on this record the... the claimed interests are not compelling or not proven, would you have us leave the door open for a greater degree of proof?

For example, take the... the problem of candidate time.

The lower the donation limits are, the... the more donations there have got to be, and... and there's... there's plenty of comment, particularly in some of the amicus briefs, on the amount of time that political candidates generally spend scrounging around for money.

If we decided the case your way, would the door be left open for a more impressive and compelling record on this issue?

Mr. Bopp: --Well, we... we are asserting that that is not a compelling interest in and of itself, and this Court should reject it.

I... I just don't see--

Justice Souter: But you also say, on this record.

Mr. Bopp: --Yes.

And in addition... well, the... the point about it not being a compelling interest I think is an analytical point that doesn't have to be... that doesn't rest on this... strictly on this record.

Justice Souter: So I... I take it your point then on the combined corruption/competition for money problem is that there isn't any record that would support it.

Mr. Bopp: If it were a compelling interest, there's no record here that is a problem in Vermont.

Justice Souter: Right, but you're saying this combination cannot be a compelling interest as a matter of law, consistent with the First Amendment.

Is that correct?

Mr. Bopp: Yes, it is.

I don't see how it is a compelling governmental interest to limit challengers to only fund raise to the extent that an incumbent finds comfortable or convenient.

Justice Souter: Yes.

Justice Kennedy: Well, just--

Justice Scalia: Or at least where... where the limitation... you make a big point of this in your brief as... as I... as I recall.

At least where the reason the candidate would have to spend so much time is the very small contribution limit established by the same statute.

It's... it's rather like the... the murderer asking for mercy because he's an orphan, having killed his parents.

Mr. Bopp: It is a self justifying statute by imposing the lowest contribution limits in... in the Nation, adjusted for inflation for 1974 dollars, when the $1,000 limit was approved.

This is a contribution limit of $50 for an--

Justice Kennedy: --Well, to get back to Justice Souter's questions, could you answer it this way?

Let's assume that some members of the Court simply accepted the proposition that money buys access.

And... and I don't think maybe we can take judicial of that, but I... I think that's a common sense conclusion that we can reach.

And you tend to fight this in your brief to say that this doesn't happen.

I tend to doubt that.

I tend to think money does buy access.

What... if... if we or I were to conclude that, what would follow?

Mr. Bopp: --Well, I think it's not a matter of just access.

It has to be a matter of privileged access that this Court found in the--

Justice Kennedy: All right.

Let's say it's privileged access.

Mr. Bopp: --Well, if it... if it's privileged--

Justice Kennedy: I mean, isn't the answer that the... that this is up to the voters.

The voters can see what's going on and throw the legislator out if they choose.

Mr. Bopp: --Indeed, and in fact, the... there are other less restrictive ways of... of dealing with this.

For... for instance, Vermont prohibits contributions from lobbyists during the session.

Other legislatures have imposed a prohibition on incumbents from raising any money during the time the legislative session... the legislature is in session.

So there are ways of dealing with the question of access that are not the blunderbuss approach here.

Justice Kennedy: It... it is true that all the polls say that there's public disaffection and cynicism.

Does that translate into action to defeat incumbents who take particularly large sums of money?

Is there... is there statistical evidence to show that?

Mr. Bopp: I'm not aware of that.

But certainly the press and opponents often, you know, point to examples where they believe that their challenger is under too much of an influence of a particular entity, and the voters, you know, in certain circumstances take that into account in their voting.

And furthermore, it is true that there is a general cynicism about politicians and government that has existed since the first colonists came to our country and continues today.

In fact, our governmental system is established on the proposition that we need to limit the... the government, and we need to have checks and balances because we don't want free rein by politicians because we are concerned about their exercise of power.

But if this is enough--

Justice Stevens: May ask you this question, Mr. Bopp?

This... in... following up on Justice Ginsburg's inquiry, is it your view that there is no set of facts, no matter how scandalous and so forth and so on, Watergate and all the rest of it, could ever justify an expenditure limit?

Mr. Bopp: --That is not our position.

Justice Stevens: Well, if that's the case, then why... why would it be inappropriate to have further hearings in this case to see whether they're... they could be justified?

Mr. Bopp: Because there have been legal findings by the Second Circuit that we believe are erroneous.

The... the first, as I mentioned previously, is that... that we do not believe that the... preserving incumbents' time through expenditure limits can ever be a compelling governmental interest, to limit what challengers can spend... raise and spend in their own election.

I mean, this interest... the expenditure limits don't apply just to incumbents who... if there is a concern about--

Justice Stevens: No, I understand.

I'm just curious to know what sort of... what sort of evidence could ever support an... an expenditure limit in your view, if... if any.

Mr. Bopp: --I have a... a very difficult time justifying expenditure limits.

I know there's a debate on this Court on whether or not there are per se situations under the First Amendment.

If there was ever a candidate for a per se First Amendment ban on a law, surely it would be this type of case.

In other words, we are talking about speech that is at the core of the First Amendment, and secondly, we are talking about candidate speech.

Candidates are the ones that go into office.

They are the ones that are going to be exercising governmental power.

These low expenditure and contribution limits would have the effect of making candidates a bit player in their own election so that the voters--

Chief Justice Roberts: Counsel, with respect to the contribution limits, what... what makes this case different from the... the Shrink PAC case from a few years ago?

Mr. Bopp: --Well, several things.

First is there was actually a paucity of evidence in the Shrink PAC case.

There was only an allegation of one PAC that wanted to give one contribution to one candidate, and this Court said that, you know, you didn't need a lot of evidence to combat such a weak... weak claim.

So secondly is the novelty and plausibility of a... adjusted for per election in 1974 dollars of a $50 contribution limit, that that would actually give rise to realistic concern about actual and perceived corruption.

So, again, in Shrink PAC--

Chief Justice Roberts: So you think it... you think it's the dollar amounts that are involved?

Mr. Bopp: --Well, one of the decisions that the Court has to make under your jurisprudence is that... that contribution limits can only eliminate large contributions that give rise to this realistic perception or actuality of corruption.

So it is... whether it's large or not and giving rise to that concern because of the size, that is an integral part of the Shrink analysis.

Justice Souter: It... it was pointed out in... in one of the briefs... and I... I didn't go back and check it myself, but I'd like your comment.

It was pointed out in one of the briefs that the limits in Vermont were substantially close to or even... even higher than the... than the limits in the Missouri scheme, out of which the Shrink litigation grew.

Do you know whether that is correct?

Mr. Bopp: Well, it depends on how you... you compute it.

The--

Justice Souter: It always... it always does, yes.

[Laughter]

Mr. Bopp: --The... well, certainly what the... what the evidence was in Shrink was it was a $1,075 limit, again adjusted for inflation, was about $375 adjusted for inflation compared to the Buckley limits, and because of the paucity of evidence and the fact that it wasn't really novel to say that a $1,000 limit could give rise to corruption because--

Justice Ginsburg: But there were lower limits, Mr. Bopp, and I think that's what Justice Souter was asking about.

Justice Souter: Yes.

Justice Ginsburg: There were the thousand dollars, but I think it went down as low as $250 in--

Justice Souter: Yes, take the whole schedule in Missouri.

Mr. Bopp: --Yes.

Well, the... the contribution limits that this Court considered was the $1,075--

Justice Ginsburg: --There... there was a court that subsequently considered the rest and upheld the contribution--

Mr. Bopp: --Yes, there was.

The Eighth Circuit did so and the... the lowest limit there was $275 per election, which would be $500 for... for the... the entire election cycle.

And the... and... but really that... that was on a... a record that this Court found to be, frankly, inadequate to... to raise any serious questions about the... whether the amounts concerned gave rise to a realistic threat of corruption.

And the record here demonstrates that... that the... that the only time really there is a actuality or perception of corruption in Vermont is when they... is when we're talking about amounts in excess of $1,000.

That was the prior limit.

Justice Scalia: And we... we didn't send it back so that more of a record could be made, did we?

Mr. Bopp: No.

No.

And, you know, we had a 10-day trial.

We had numerous witnesses here.

The... Shrink had been decided.

I mean, there was... everything was before the court to consider the... the matter.

And so, you know, they had their chance at... at proof.

And... and in the numerous witnesses, they made their best case.

They could not identify one single politician in Vermont that was... that anyone would... would claim was corrupted in any way by a contribution... by contributions under $1,000.

They could not name one single incumbent politician in Vermont that neglected any specific duty that he or she had.

Justice Scalia: Well, but you know.

You expect them to name names?

I mean, here--

[Laughter]

Mr. Bopp: Well, if--

Justice Scalia: Really, that... that's... that's a lot to ask.

Mr. Bopp: --Well... well, they at least have to give, you know, realistic circumstances.

They gave a few circumstances--

Justice Kennedy: Well, suppose three legislators had been corrupted, venal, criminal corruption, actually taking no wink wink, nod nod, a specific agreement to vote for money.

So what?

Does that change your case?

Mr. Bopp: --Well, the... the responsibility that Shrink imposes is to... to demonstrate both actual and perceived corruption at that the--

Justice Kennedy: Suppose... suppose that had been demonstrated in... in a particular State.

Does that mean, in your view, that a State can have strict contribution limits and support?

Mr. Bopp: --If it's just anecdotal, no.

It has to be--

Justice Kennedy: No.

It's true.

It's... it's done.

There have been criminal convictions.

Mr. Bopp: --Well, the... if it's isolated examples that are unconnected to any perception of corruption at that level, then it would not be adequate on... on its... on its... by itself.

Now, of course, in Shrink, the Court cited to both actual and perceived evidence of corruption at the level that the... you were considering that limit.

Justice Kennedy: Well... well, if... if you... if you concede and... and you tend, at least, to back away from the proposition that the case I put would be an inadequate ground or an adequate ground for legislative limits, then I suppose you can say the State has the power to prevent this from happening to begin with.

Mr. Bopp: Well, this Court has never approved restrictions on fundamental First Amendment values based purely upon speculation or concern about something that's happening some other place.

In other words, these are real limits on people in Vermont, and it seems to me that to approve the lowest contribution limits in the Nation and these very low expenditure limits, the State would have to demonstrate that Vermont is the most corrupt State in the Nation.

And they're far from it.

In fact, the opposite--

Justice Scalia: Only... only the most corruptible.

[Laughter]

Mr. Bopp: --Nor corruptible.

The... the evidence is quite clear.

Even in the few examples that they cite to like the tobacco industry passing out $40 checks after a... a vote defeating a bill.

Of course, that's still legal under this... this act.

But, you know, even pointing out that they... that the person who talked about that example made it clear that he didn't believe anybody was... was influenced by post contributions after a vote regarding a matter that's not even prohibited by this... by this act.

So it was... it was a lot of testimony about how truly clean Vermont is, not the most corrupt, where people... politicians would be tempted at these quite low limits to, you know, sell their honor and... and personal, you know... and their... and affect their own, you know, personal character and reputation.

Justice Souter: Mr. Bopp, toward the end of your brief, you... you make the argument that if we accepted the State's position in this case, we implicitly would have accepted the position that totally... totally publicly funded elections would be constitutional.

And... and I... I realize your... your concern there was with expenditure limits, obviously, not contribution limits.

You didn't come out and say it, but I... I assume your position is that that would be unconstitutional per se.

A totally publicly funded scheme would be unconstitutional per se.

Mr. Bopp: The key would be if it's mandated, voluntary--

Justice Souter: Yes.

Mr. Bopp: --If it was mandated, yes, it would be unconstitutional.

Justice Souter: And... and its unconstitutionality would rest on the limitation on expenditure, in effect?

Mr. Bopp: Yes.

Oh, yes.

Well, there would be a prohibition in that case if I understand your--

Justice Souter: Oh, yes, yes.

Mr. Bopp: --on... on contributions, and there would be also a... a mandatory expenditure limit because you could only spend what the government gave you.

So that would have all those features.

Now, if it was, of course, voluntary, it would solve the... the two problems that... that the State talks about because if you have a voluntary public funding system... and this is, again, why remand is... is inappropriate.

You don't need to go back and... and determine whether or not the legislature considered providing adequate public funds.

I mean, it's whether that alternative exists.

Justice Souter: But on... on your view, if... if there were a... a mandatory publicly funded scheme and the... the limits on expenditure were very high... it was a very generous scheme.

They gave them lots of money... it would still be unconstitutional because there would be... I... I take it on your view, because there would be an elimination of any way to participate by contributing.

Is that correct?

Mr. Bopp: There would be an absolute prohibition, and this Court in... in Beaumont reserved that question of whether or not an absolute prohibition... and... and then in McConnell, you struck down the absolute prohibition on minors' contributing to campaigns.

So, yes, there would be a absolute prohibition on any way for any individual to associate with a campaign through a contribution.

Justice Scalia: Well, it would also prevent the candidate himself from expending his entire fortune, if he wishes, in informing people of why he should be elected--

Mr. Bopp: Yes, that is true.

Justice Scalia: --think that's okay.

Mr. Bopp: And... and in the record below, plaintiff Donald Brunelle said that he was prepared to spend considerable sums in support of his State Senate election, which... and considerable sums above the expenditure limits that were before... that were adopted by Vermont.

So the... the question is an independent--

Justice Scalia: Which raises no possibility of corruption.

Mr. Bopp: --Well, nor... nor on fund raising using up your time because all a wealthy person has to do is write a check.

And... and, of course, in Vermont, they even have an exception for not only just the wealthy... wealthy candidate, but the wealthy family.

So, you know--

Justice Scalia: I don't know what you mean they have an exception for the wealthy family.

Mr. Bopp: --Yes.

To a third degree of consanguinity, people who are related to you to that degree are not subject to the contribution limit.

So, you know, it's hard to justify Vermont's scheme if you're concerned about the influence of the wealthy because they're giving the wealthy carte blanche to fund their own campaigns, even under these limits.

So a wealthy person who runs for Governor... he has no fund raising costs.

So... and... and he can get contributions from others that are related by blood, but not by marriage, interestingly, to... to him.

So the public funding or the expenditures by... by the wealthy neither give rise to... and both solve... either don't give rise or solve the problems that they claim.

So there's... there's... you don't need a remand to consider that... that question, and that is one of the questions that the Second Circuit has asked that... that the matter be remanded for.

Now, in addition, the expenditure and contribution limits here are not going to allow even effective campaigns.

We have considerable evidence in the record that to run an effective campaign for Governor in Vermont, it takes $600,000 to $800,000; for the Senate--

Justice Ginsburg: --Mr. Bopp, may I ask you?

You keep... the way you're discussing this case, one would think that the trial court found there was an evidentiary insufficiency, but I thought, at least on the contributions part, the trial court found that the evidence sufficed to justify those limits.

Mr. Bopp: --They did, but erroneously, and I... we believe that you have a responsibility to do an independent examination of the record.

For instance, there was a finding by the district court that these amounts were, quote, suspiciously large.

Now, if you look at the record and you look at the six individuals--

Justice Scalia: Excuse me.

What... what amounts were suspiciously large?

Mr. Bopp: --The contribution limits... amounts over the contribution limits for--

Justice Ginsburg: Can you... can you point to the place in the district court opinion that you're referring to?

Mr. Bopp: --I am sorry.

I do not have that in front of me.

That the district court found that the amounts prohibited under the contribution limits by Vermont were, quote, suspiciously large, and then they cited six different witnesses.

We have reviewed each... in our reply, each one of those witnesses, and it is simply not true that any of them said that it was suspiciously large, that is, that if there was any relationship between contributions between the old limits of $1,000 per election and these new, much... much lower limits, if there was any... any witness related contributions of that size to any threat of corruption.

In fact, in the examples that are given, they disclaim that there was any... that anybody was bought or influenced in any way by the contributions that were made.

Now, the... in terms of an effective campaign, of course, under Shrink if a expenditure... if a contribution limit amounts to an expenditure limit... and the Court commented on this.

This Court commented on this in... in Citizens Against Rent Control v. Berkeley.

If a contribution limit acts as an expenditure limit, then it can... it will be also be struck down if the candidates cannot mount effective campaigns.

And here we have demonstrated in the record what an effective campaign amounts to, and the amounts even for the House district of $2,000 would be simply used up by 1 brochure, 100 yard signs, and 1 postcard mailing.

All of these have been valued in the record, and that would amount to $1,500 to $2,000, almost the entire amount allowed, not allowing even one mailing to all voters in... in that House district.

I'd like to reserve the balance of my time.

Argument of William H. Sorrell

Chief Justice Roberts: Thank you, counsel.

General Sorrell.

Mr. Sorrell: Mr. Chief Justice, thank you, and may it please the Court--

Justice Kennedy, you raised the issue of whether money buys access.

It clearly does.

Our Governor admitted that in a State of the State address.

But we also had testimony at trial from a former statewide officeholder that money, of course, buys access, but on the bad days, it buys influence.

And we had the President--

Chief Justice Roberts: Counsel--

Mr. Sorrell: --of the Senate--

Chief Justice Roberts: --Counsel, you... you say in your brief... I'm reading from page 13... that the record convincingly shows that the ties among donor groups and elected officials often determine the positions officials take.

Can you give me an example of an official who took a position because of the ties to donor groups?

Mr. Sorrell: --The... there was testimony that the President of the Senate said to another Senator who was testifying at trial, we've lost the drug money.

I'm not willing to lose the food manufacturer money, so I'm not going to sign this bill.

That same President of the Senate testified in a legislative hearing... I... he admitted that he makes decisions in performing his legislative duties because of that whole lot of money that he had collected in the year before.

Chief Justice Roberts: So your position is that that official's official positions were determined by the donor groups, as you say in your brief.

Mr. Sorrell: Influenced and--

Chief Justice Roberts: Well, your brief says determined.

And did... did you--

Mr. Sorrell: --Have an influence and we would suggest an undue influence in some cases.

Chief Justice Roberts: --So it should say influenced rather than determined.

Mr. Sorrell: We didn't have anyone, as Justice Scalia asked, who stood up and admitted to having taken bribes.

We did have the Senator, who was the chair of the Senate Finance Committee, who said that she's not in favor of tax credits, but she had a donor to her campaign who had given $500 in one campaign cycle and $1,000 in another cycle, and she allowed a tax credit to go through her taxing committee, even though substantively she didn't like tax credits.

Chief Justice Roberts: How many prosecutions for political corruption have you brought?

Mr. Sorrell: We have not had any of legislators or statewide officers that I'm aware of.

Chief Justice Roberts: Do you think that political corruption in Vermont is a serious problem?

Mr. Sorrell: It is a serious problem.

Over 70 percent of Vermonters at... there was testimony at trial from an expert that over 70 percent of Vermonters believed that corporate interests and wealthy individuals have an undue influence on politics in the State, and I think 73 percent believe that the average citizen--

Chief Justice Roberts: Would you describe your State as a clean State politically or as a corrupt one?

Mr. Sorrell: --We have a real problem in Vermont.

We haven't had a Governor go to prison.

We haven't had legislators tearfully apologizing for having taken bribes, facing an indictment the next day.

But we have got a problem in Vermont.

In over 65 hearings before our legislature and then through a 10-day trial, we established that as the trial court said, the threat of corruption in Vermont is far from illusory.

Justice Scalia: To the extent that Vermont legislators can be bought off by $51?

[Laughter]

Mr. Sorrell: There's nothing in the record--

Justice Scalia: That's very sad.

[Laughter]

But that's the limit you've placed on... on contributions.

Mr. Sorrell: --I... no.

Justice Scalia: I mean, the... you know, if... if you accept more than $51, you're... you're likely to have your vote determined by that.

Mr. Sorrell: No, I... we don't suggest... we don't suggest that.

Justice Scalia: Then why... why the $50 limit?

It certainly isn't based on the corruption--

Mr. Sorrell: I don't know what $50 limit you are talking--

Justice Breyer: No, no.

He's thinking in... he sometimes thinks in the past.

He's--

[Laughter]

He's translated it into 1974 or '72 real dollars.

Mr. Sorrell: --Oh, it's--

Justice Breyer: It's $200.

The same question or $201.

Mr. Sorrell: --It's the math.

The reality is that these contribution limits that we had... we had examples under the old contribution limits.

Even Petitioner Randall admitted that in Vermont, a $1,000 contribution... if you receive a $1,000 contribution in Vermont... this is one of the petitioners... then Vermonters think that you've been bought.

And that's the reality--

Chief Justice Roberts: And they can... and presumably they act accordingly at the polls.

If they think someone has been bought, I assume they don't reelect the person.

Mr. Sorrell: --The Buckley court thought that disclosure obligations and contribution limits alone would be... would suffice to address corruption and--

Justice Breyer: But I have the same question Justice Scalia had.

I mean, the... the question is you... you have limits here of $100 per election.

It's $200 per cycle.

Mr. Sorrell: --For a House race, yes.

Justice Breyer: For a House.

$300 for the Senate, $400 for a candidate for statewide office, including the Governor.

That's $200 for an election for Governor.

You throw in contributions in kind.

You say that the political parties themselves cannot give more than that $200 for an election for the Governor.

If we translated those into 1974 dollars, they're just the numbers Justice Scalia mentioned, and I would like to know why are they... why does not give incumbents a tremendous advantage, that if you have the incumbent plus a newspaper, it's hopeless, that there's no way of spending as a challenger.

In other words, why aren't these limits far too low?

Mr. Sorrell: Incumbents had a much more of an advantage in the pre Act 64 world.

They could raise more money and spend more money than--

Justice Breyer: It's not going to help to say incumbents had a bigger advantage before.

That is, the question is, what we're interested in is... at least what I've written that I'm interested in, is at what point do these become so low that they really, as a significant matter, shut off the possibility of a challenge.

And from that point of view, your numbers, which do not tell me the expenditures in a competitive district, and your numbers, which do not explain all the problems that Judge Winter had with these things, do not help.

That's why I'm asking you the question.

Mr. Sorrell: --Vermont has the--

Justice Breyer: I want your answer.

Mr. Sorrell: --Vermont has the second lowest gubernatorial spending in the country.

In the record it shows that in the largest urban area in the State, in the Burlington area, you can buy three 30-second TV ads in prime time on tier one cable for $45.

Justice Breyer: I'm not talking about the expenditure.

I'm talking about the contribution limits.

I and my friends have the following thought.

We don't know who the candidates for State rep are, but we want a Republican slate or we want a Democratic slate.

So we get all our $5 together, give them to the Democratic Party or the Republican Party in Vermont, and lo and behold, that party cannot give more than $100 in an election to a State rep, et cetera.

Now, to the... to the ear, that sounds as if a challenger or a slate of challengers or a party that wants to challenge is going to have a really tough time.

So I want you to explain it.

Mr. Sorrell: The extensive record below shows that with these contribution limits, attacking the corruption and the appearance of corruption issue, the candidates can amass the resources necessary to run effective campaigns at all levels.

Justice Scalia: --It shows that on average.

It doesn't show that in the competitive races, which is where the... where the shoe pinches.

Mr. Sorrell: The... the reality is that... that in virtually all classes of races, other than the single member Senate races, that average spending was below these expenditure limits, and these include contested cases with primaries, without.

Justice Scalia: That's just what I said.

Your figures show that the average spending is below, but that's not what's significant.

What's significant is what Justice Breyer posed, where... where there is a contested race and... and some new candidate wants to unseat somebody who's been in there for years.

That's... that's where the shoe pinches.

Mr. Sorrell: And, Justice Scalia, under our law, the challenger can spend more than the incumbent because the incumbent has a lid not... of 85 percent or 90 percent of the expenditure limit, depending on whether it's a legislative race or a... or a statewide race.

But the... the issue here is you're going to have some... some outliers.

But we have core constitutional interests in trying to enhance the integrity of our campaigns.

We have this problem.

The legislature reached a balance here.

It looked at what... how much you would need to run effective campaigns.

It set--

Justice Kennedy: But in... in any... or in many campaigns, the... the issues take shape during the process of the campaign, and there are historical events, national events that suddenly occur that people want to comment on.

And I... I just don't see that there's any capacity for adjusting so that the public can know how candidates are facing issues that are beginning to emerge that the public has a vital interest in.

My understanding was that a quarter page ad in the Burlington newspaper was, I think, $1,400.

Now, it's... it's gratifying to know that Vermonters are splurging on cable television, but it... it--

[Laughter]

--it seems to me that this is a highly restrictive rule insofar as having the campaign be able to address the issues that the voters say that they've become interested in.

Mr. Sorrell: --We have the second lowest... smallest legislative districts in the country, 4,000 citizens per single member legislative district.

Sure, that's what it costs to take out an ad in the Free Press, but there's nothing in the record to show that House candidates, legislative candidates, take out those size ads in... in the Burlington Free Press.

The record is otherwise.

The record reflects that it's primarily door to door campaigning for legislative races.

If you're taking out an ad, it's in... it's a flyer in one of the... the weekly papers.

Petitioner Donald Brunelle admitted that he ran a competitive race for the House, spending $1,000, that included yard signs, a mailing to his constituents, and flyer advertisements in... in the newspaper.

Justice Scalia: Did he have a primary?

Mr. Sorrell: I don't know whether he had a primary or not.

Justice Scalia: That's another feature of... of this scheme that I find quite puzzling.

You get the same expenditure limit for the election cycle whether you go through a primary or not.

What an advantage that is for the incumbent.

Mr. Sorrell: The... there was testimony in the record that those who have a primary might actually get a bump over others who are not challenged.

But as the district court pointed out, in Vermont what makes Vermont different is that our primary is late.

It's the second Tuesday in September, and so it's less than 8 weeks from the general election.

It's not like having a primary in the spring.

And as the legislature during those 65 hearings considered the campaigning, they considered all kinds of campaigns, including contested primaries and not, and again, average spending in these campaigns was, with minor exception of the single member Senate districts, of which there are three... that average spending was below these expenditure limits.

So in the average campaign, you could actually spend more than... than on average is being spent.

And the issue, when you've got competing constitutional interests, is whether we address our problems of corruption, appearance of corruption.

We try to free up candidates' and public officials' time from fund raising.

We try to create competitive elections and bring more citizens into the process voting, grassroots campaigning, and standing for election.

We want more people to run.

Justice Souter: Mr. Sorrell, would you go back to the... your comment on... on average expenditures?

Do we know from the record how many of the... how many of the contests, on the basis of which the average was calculated, were contests in which there was a... a contested primary?

Mr. Sorrell: We don't have that evidence in the record.

What we have is that we... the experts looked at total spending, which would include primary spending and general election spending, and our figures went from that.

And our expert, by the way, considered all races, even those for which campaign finance reports were not filed, meaning that the candidate hadn't raised or expended more than $500, and assumed $500 in spending in each one of those... each one of those races.

So our average spending figures actually might be a little higher than... than reality.

Justice Ginsburg: Was there any testimony or evidence on the other side of the point that Judge Winter makes?

That is, you have someone running in a primary and then faces an incumbent in the general election, but there's nothing left in the till because it was a hard fought primary.

That... the advantage to the incumbent in that situation was a large concern to at least some of the judges on the Second Circuit.

Mr. Sorrell: And that might be an issue that on remand... and this case is being remanded on a couple of issues that aren't even before this Court.

Justice Ginsburg: Not on the contributions, is it?

Mr. Sorrell: No, it's not on the contributions, but it is going back to the court on issues of transfers of money from national parties to State parties and on whether related or coordinated expenditures are, indeed, allowed to be an expenditure.

So the case is going back to the trial court on those bases anyway.

Justice Souter: But it's not going back on the expenditure limit.

Mr. Sorrell: I--

Justice Souter: I mean, the problem, I mean, I was getting at and Justice Ginsburg is getting at, Judge Winter got at it.

The... the problem is... is the... the total limitation on an election cycle, including the primary, when the primary involves a challenge so that the challenger has an uphill fight presumably to start with in the primary.

And if he's going to maintain an effective uphill fight in the primary and he's lucky enough to win, he's going to get to the general election and he's going to be broke.

That's... I mean, that's... that's the problem that we're concerned with.

Mr. Sorrell: --That has not been a problem that was reflected in the record either before the legislature or at trial.

This is a facial challenge for the law, and you know, that situation of a primary candidate who, for whatever reason, felt that he or she needed to expend up to close to the expenditure limit... it wouldn't be very prudent, but that could be an issue.

But, you know, we do not control independent expenditures under our law, and we certainly don't limit volunteer services.

There's a tremendous amount of campaigning that can go on between a primary and a general election even with a limited amount of funds available.

Justice Scalia: If the burden is on the candidate to establish that... that somebody's expenditure is independent and shouldn't be counted against his expenditure limit.

Mr. Sorrell: No.

There is a presumption under our law--

Justice Scalia: A presumption, which means the burden, to go forward and show the opposite, is on him.

Right?

Mr. Sorrell: --Well, but it could be on the... on the party because--

Justice Scalia: And the money that he spends in overcoming that presumption is charged against his expenditure.

Isn't that right?

Mr. Sorrell: --No, Justice Scalia.

The Secretary of State reached a... issued an opinion that we... our office agrees with, that expenditures on attorneys for, you know, ballot access questions and the like are not in furtherance of the candidacy and would not apply against the expenditure--

Justice Scalia: The other side says the opposite.

I'll ask them whether that's--

Mr. Sorrell: --But the... the Secretary of State's public opinion that we, the enforcement authority, agree with is to the contrary.

Justice Souter: May... may I ask--

Justice Kennedy: Well, I suppose the Vermont courts could construe it more narrowly at some later point.

I would hate to rest the opinion on that.

Mr. Sorrell: The... the... under Vermont law, a presumption such... such as this is not a burden... creates no burden of persuasion, nor does it change the burden of proof.

Justice Souter: --Well, you know, I looked at your... the... the references in your brief for that proposition, and I did not see them borne out.

You referred to a... a footnote in the district court opinion which, in turn, refers to the remark of a sponsor of the amendment that... that resulted in the presumption being in the law.

And the only thing that was attributed to the sponsor was that the presumption should be regarded as rebuttable.

The... the footnote in the statement did not indicate that the presumption was a disappearing presumption, once the other side went forward with any evidence.

So I don't see, based on your... your citations, that the presumption goes away simply by... by one party going forward with evidence.

Mr. Sorrell: Well, if you... if some entity that has the burden of proof to show, in fact, that it was a related or coordinated expenditure has the party on the one hand and the candidate on the other saying, we did not coordinate here, I didn't ask for it, I didn't approve it, and then where is the evidence?

Justice Souter: The... the point is what if we don't have that simple of a situation.

Let... let me ask you this.

Maybe we can short circuit this.

I mean, do you represent as an... as a statement of Vermont law that this Court should decide the case on the assumption that the presumption is a disappearing presumption, once evidence is offered against it?

Mr. Sorrell: Yes.

Justice Souter: Okay.

Mr. Sorrell: Well, credible evidence, yes.

Yes.

Chief Justice Roberts: Is... is an affidavit from the candidate enough credible evidence in your view?

Mr. Sorrell: Yes.

Justice Scalia: --And thereafter, all the... all the candidate has to say is in an affidavit, no, it wasn't coordinated, and then the burden is on the State to show that it was.

Mr. Sorrell: If the State is the party that's trying to prove that it was, in fact, a coordinated expenditure, under the law... it would typically be a opposing candidate who tries to--

Justice Scalia: Okay, the opposing candidate or the State.

Mr. Sorrell: --So Justice Brandeis said that there's room under our system for a courageous State to experiment.

Justice Breyer: Just can I ask a technical question here?

Mr. Sorrell: Yes.

Justice Breyer: Just... is... is it the case or not the case that if I contribute my car to drive the candidate for Governor, let's say, between Burlington and Montpelier, and I buy the gas, does that count against the limit?

Yes or no.

I'm a volunteer and I buy gas and drive him back and forth.

Mr. Sorrell: Yes, you drive.

Then the answer is no.

Justice Breyer: No.

He drives.

Mr. Sorrell: Well, but it's your car, you're there.

No.

Justice Breyer: No, I'm not there.

I lent him the car.

[Laughter]

Okay.

I got the idea.

If he does... if I do, it's not.

What about I have a coffee... coffee.

I wanted to get the line.

I see it.

Coffee.

I want to have coffee and donuts, free donuts because... and coffee for people to come in.

Is that counted or not?

Mr. Sorrell: As long as it's under $100.

Justice Breyer: No, no.

It's $200.

Coffee and donuts are expensive.

[Laughter]

Okay?

Count it or not?

Mr. Sorrell: We don't... our coffee is not that expensive, but--

Justice Breyer: Donuts and coffee.

In other words, it counts as long as it's over $100.

Mr. Sorrell: --Yes.

Justice Breyer: Under $100.

Under $100.

Mr. Sorrell: No.

Over $100 counts.

Justice Breyer: Counts.

Mr. Sorrell: Under $100, it does not.

My time is expired.

Chief Justice Roberts: Thank you, counsel.

Mr. Sorrell: Thank you.

Argument of Brenda Wright

Chief Justice Roberts: Ms. Wright.

Mr. Wright: Mr. Chief Justice, and may it please the Court--

I'd like to return to a question that Justice Kennedy asked earlier about why, if there are examples of corruption that the public becomes aware of, why the public doesn't respond simply by voting the individual out of office.

And I think it's important to point out that some of the most serious examples of corruption on this record or of the undue influence achieved by monetary concerns were not examples that ever became public except in the course of the trial of this case when we had witnesses come forward to testify about some of their own personal experiences in the legislature.

By the very nature of the problem of candidates becoming unduly beholden to the interests that can provide the greatest sums for their campaigns, those kinds of incidents are not going to typically be a matter of discussion--

Justice Scalia: No, but I... I thought that the point was that the public mistrusts their representatives because of large donations, and I thought the point being made was, well, if that's the case and the public sees that this fellow has gotten a $10,000 donation, the public will say this... this fellow is in that... is in that corporation's or that person's pocket.

Mr. Wright: --But the--

Justice Scalia: And I won't vote for that person.

You... you don't have to show that... out of the mouth of the candidate, that... that he voted for the bill because he got $10,000.

The mere fact that it's on the public record that he got $10,000, if... if what you say is correct, that... that people are worried about, the... the corruptive effect of such donations, people should logically vote against that candidate who accepts so much money.

Mr. Wright: --Two points on that, Your Honor.

First of all, the problem of holding candidates accountable in that manner is greatly exacerbated when you have a system of unlimited spending in which all of the candidates involved feel compelled to go out and raise as much as they can in order to forestall the possibility of being outspent.

Then when a voter says, well, why are you doing this, the candidate has a ready made answer.

If I don't do this... you know, maybe I'd rather not, but if I don't, I'm going to be bested in the fund raising arms race.

And voters reluctantly have come to--

Chief Justice Roberts: But I thought--

Mr. Wright: --understand that that's--

Chief Justice Roberts: --when you look at the... the record, Vermont would be the last place that you'd be worried about it.

The political culture, as we just heard, is that it's easy to go door to door, and that's what the Vermonters expect.

And it doesn't take an arms race to get on your feet and go door to door.

And it seems to me that there's a real dilemma on the respondents' side of the case between justifying low limits by saying you don't really need money to run effectively and at the same time suggesting that there's a serious problem with too much money.

Mr. Wright: --Well, but--

Chief Justice Roberts: Which is it?

Mr. Wright: --what we do have is candidates... even though it is possible to run effective campaigns in Vermont for lower amounts, candidates nevertheless go out and raise often much more than what they need.

Here's an example from the record.

We had Senate candidate Vincent Illuzzi.

In 1998, he raised $39,000, almost $40,000, for his Senate campaign.

His challenger was able to raise almost nothing.

He only spent $30,000 worth of that.

Candidates don't need $39,000 or $30,000 to run an effective Senate campaign, but an incumbent that builds a war chest has the ability to deter serious challenges.

Justice Alito: Could candidates--

Justice Breyer: On your question... the... I'm sorry.

Justice Alito: --Could candidates run effective campaigns if there were no... with these contribution limits if there were no expenditure limits?

Mr. Wright: Yes, Your Honor.

The... we believe the record strongly shows that.

For example, there was a mayoral election in Burlington run under these limits during the time that the case was--

Justice Alito: No.

I mean, if there were no expenditure limits, if candidates could expend as much as they want, could they raise enough money with these contribution limits--

Mr. Wright: --Yes.

Justice Alito: --to run effective campaigns.

Mr. Wright: Yes, Your Honor, because this Burlington mayor's race, as an example, was one in which there was no limit on... on spending, and both candidates were able to raise amounts either similar to what they had raised in the past or at least amounts that met the campaign budget that they had sought to... to follow.

I think in looking at the level of the contribution limits, it's important again to understand the scale of politics in Vermont.

If we want to compare them to Missouri, a $2,000 limit for a gubernatorial race in Missouri was approved by this Court, and in Missouri you had an election in 2000 where each candidate was spending $8 million or $9 million in a gubernatorial race.

I mean, that compares very directly if you--

Justice Breyer: I thought the--

Mr. Wright: --did the same ratio for Vermont.

Pardon me?

Justice Breyer: --Wasn't it the State auditor?

Mr. Wright: Not the $8 million or $9 million.

Justice Breyer: No, I know, but didn't we have in front of us a limit, which I wrote was rather border, that involved a State auditor campaign?

Mr. Wright: In Missouri?

Justice Breyer: I thought so, in Shrink Missouri.

Mr. Wright: It may have been the State auditor, but it also the--

Justice Breyer: Which is not quite the same political volatility perhaps, but--

Mr. Wright: --No, but the--

Justice Breyer: --I have a different question I'd like to ask you which I haven't heard addressed yet.

On the expenditure limits, there is a case, Buckley v. Valeo, and the Court held in that case that expenditure limits are not constitutional.

Now, whether I agree with that or don't agree with that, am I not bound by that?

And insofar as you try to distinguish it, you've read what Judge Winter said about your efforts to distinguish it.

And therefore, I'd like to hear why you think I'm not bound by a past precedent in an important matter, with which I may or may not have agreed at the time.

Mr. Wright: --Yes, Your Honor.

We believe expenditure limits can be upheld without overruling Buckley v. Valeo, and that's for several reasons.

First, Buckley created a rule of exacting scrutiny that applies to expenditure limits.

That is not a rule of automatic invalidation.

And very importantly, when Buckley declared that the interest in deterring corruption and its appearance was not adequate to support the expenditure limits, that was on a record in which neither spending nor contributions had been subject to meaningful limits prior to the time of FECA and the amendments that the Court was considering.

There simply was no record to show the Court of how contribution limits alone would really work to address the problem of corruption and the appearance of... of corruption and encouraging public confidence in government.

Now--

Justice Scalia: I thought... I thought what that case said and what many of our other cases say, with regard to expenditures in particular, is that you're not talking about money here.

You're talking about speech.

So long as all that money is going to campaigning, you're talking about speech.

And when you say you don't need any more speech than this, that's a very odd thing for... for a... a United States Government to say.

Enough speech.

You don't need any more than this.

And that's the reason the expenditure limits, as opposed to contribution limits, were regarded quite differently in Buckley and I think should still be regarded differently today.

You're constraining speech.

It's not money you're constraining.

Contribution limits, you're constraining money, but when you say you can't expend more than this on your campaign, you're saying, no, no, no, this is enough speech.

We're going to... we, the State, are going to tell you how much you should campaign.

That's very unusual in... in American democracy.

Mr. Wright: --Your Honor, I think that's certainly why Buckley applied exacting scrutiny.

But I think what Vermont understood is that political spending has inescapably a dual character.

Yes, campaign spending enables many forms of speech, but it also has another side because higher and higher levels of campaign spending result in candidates who are beholden to the constituencies that can provide the greatest amounts of funds for their campaigns.

And what you end up with, the consequence, is legislators who say, you know, I've lost the drug money and I can't afford to lose the food manufacturer money--

Justice Scalia: Limit the contributions.

Mr. Wright: --so I'm not going to--

Justice Scalia: That solves that problem.

Limit the contributions.

Mr. Wright: --Well--

Justice Scalia: But you want to limit expenditures, even if it's the person's own money.

No possibility of corruption.

You're saying, no, this is enough speech.

We don't want to hear any more from you.

We, the State, will tell you how much campaigning is enough.

That's extraordinary.

Mr. Wright: --Because the... the interests that Vermont is seeking to serve are fundamental to the core functions of government, preserving the quality of representative government, preserving the integrity of government, assuring the public that its officeholders can act in the best interests of the public and make decisions on the merits, not simply based on their need for campaign cash.

And this question of accountability that's so important is tied to the ability to say, I've... I've met my spending limits, I've raised all that I need to... to raise.

If somebody comes to me with contributions from a source that I don't feel comfortable taking, I can turn that down without suffering a tremendous competitive disadvantage.

I think one of the other key features of the expenditure limits that Vermont seeks to impose here is that they will do so much to encourage competitive campaigns.

We had a record in Vermont that showed that for the previous nine election cycles before the act was enacted, only one incumbent had been defeated for a statewide office.

In the meantime, in the City of Albuquerque where they had spending limits for 25 years, every challenger who came out to challenge an incumbent mayor was successful.

No one can say on that record that spending limits would do anything but to enhance competition.

In the... one of the other interests that I would like to turn to, before we close, is Vermont's interest in protecting the time of officeholders from the burdens and distractions of fund raising.

We had a record in which seasoned politicians in Vermont were saying that candidates for office, even in Vermont, were spending as much time begging for funds as they do campaigning.

We had a record in which a Senator reported leaving the floor of the Senate during a floor debate to take a call from a donor.

Chief Justice Roberts: How do you... how do you police that, though?

Because an incumbent can... has so many opportunities to go before the public that wouldn't necessarily be categorized as campaigning but as part of his or her official duties, while everything a challenger does is going to be credited against his account.

Mr. Wright: Well, Your--

Chief Justice Roberts: You may answer the question.

Mr. Wright: --Yes, Your Honor.

We believe that under almost any system, incumbents are going to still have advantages and no campaign finance system can fully address that.

But we believe that if the challenger now has the ability to outspend the incumbent and the incumbent doesn't have that additional advantage of being able to outspend the challenger, as is most often the case, then competition can only be enhanced.

Rebuttal of James Bopp, Jr.

Chief Justice Roberts: Thank you, counsel.

Mr. Bopp, you have 4 minutes remaining.

Mr. Bopp: Thank you.

The one example that they keep going back to regarding the President of the Senate tells the breadth of this challenge.

As long as Vermont allows periodic elections, incumbents are going to consider the effect that their votes have on future elections.

And... and while it makes it more scandalous to say we will lose the food manufacturers' money, what they are concerned about is losing the food manufacturers' support.

So as... if this the definition of corruption, it is sufficient now to... for the State of Vermont to abolish elections generally.

Now, secondly, as to the effect on challengers, the record demonstrates that challengers... and there's expert testimony to the fact that challengers are more frequently challenged in primaries than are incumbents, and the Randall brief on pages 16 and 17 point out the testimony of people who have been subject to a primary and demonstrates that they are not able to mount an effective campaign in the general.

Furthermore, the expenditure limits have the perverse result of depriving challengers of more money than incumbents, probably making them attractive to incumbents.

In the Senate, for instance, incumbents would be deprived of 20 percent of their total resources, while challengers would be deprived of 36 percent of their total resources.

Justice Scalia: I don't understand how that comes.

How does that come about?

Mr. Bopp: It comes about because challengers frequently in Vermont actually spend more than do incumbents.

I... I know that... that the general perception is the opposite, but the general perception is not true in Vermont.

And... and that points to the... the fact that the way this law is constructed strongly suggests that is... it is seeking to favor incumbents.

Furthermore, we had expert witness testimony on the effect of contribution limits on competitive races.

The... we had... Mr. McNeil testified in examining the competitive races in the 1998 election that the vast majority in both the House and the Senate would not be able to mount an effective campaign with the available resources that would have been available after imposing the contribution limits.

And, of course, these were in the amounts of 28 percent in the Senate, 22 percent in the House, which is way beyond the 5.1 percent that this Court in Buckley thought that could be made up by the imposition of a $1,000 limit.

I mean, this... this law is so constructed that it would make it virtually impossible for, for instance, countywide candidates in Chittenden County, a county of 150,000, the largest county in Vermont... they would be limited to $4,000 for the primary and the general election.

That's 3 cents for each person in Chittenden County.

And, of course, this is an important county.

Senator Leahy came from that county as State's attorney and became the United States Senator.

And finally, with respect to the rebuttable presumption, actually the... the statute answers the question of whether or not this presumption disappears.

If you look at 2809, subsection (e), the last sentence says, the findings and determination of the court... and this is in this court proceeding by your opponent that is trying to claim that this spending over here is actually yours... that the findings and the determination of the court shall be prima facie evidence in any proceeding brought for violation of the chapter.

So it doesn't go away.

The rebuttable presumption never goes away.

And, in fact, each person... each candidate and each independent spender can look at the rebuttable presumption requirement and say, I have to file a report and that governs my report.

Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted.