Randall v. Sorrell - Opinion Announcement

Argument of Speaker

Mr. Speaker: Justice Breyer has the announcement in 04-1528, Randall versus Sorrell, and the consolidated cases.

Argument of Justice Breyer

Mr. Breyer: I am going to announce the judgment of the Court in this case, which is that Vermont's campaign-finance law violates the First Amendment.

There are six people who think that conclusion, but they think it for quite different reasons, and so I am announcing an opinion, in which the Chief Justice joins in whole and Justice Alito joins in part.

Now, there are two parts to this law.

The first part has to do with expenditure limits.

It tells the Governor, “You can’t spend more than $300,000,” and the limits go down so that for a state rep it is $2,000.

So the first part is expenditure limits; and the second part is contribution limits -- that is on individual and party contributions to a candidate -- and those limits vary from $400 for an individual or a party for a particular candidate for Governor down to $200 for a state rep.

Well, I overstate, because in fact those limits are not $400; they are for two elections, the primary and the final, so really it is closer to $200, depending on how you allocate it for Governor, and $100 for state rep.

And those limits apply also to political parties if they want to give some money to the candidate, and they also apply to contributions in kind.

Well, we first have to consider the expenditure limits, and on the expenditure limits -- but, remember, I am speaking just for the Chief Justice and myself -- we think there was a case, Buckley versus Valeo, a very well-known case, and that case said that expenditure limits violate the First Amendment, but contribution limits do not.

Well, we are considering expenditure limits, and in our view this Vermont statute on the expenditure-limit side is unconstitutional because of stare decisis, and we elaborate that a bit in the opinion and we see no good reason for departing from stare decisis in respect to expenditure limits.

Then the parties have argued another point in respect to expenditure limits.

That point is that, well, what they did not think of in Buckley v. Valeo is once you have contribution limits, it takes a lot more time for a candidate to raise money, and that is a problem; but we do not think it is a problem they did not think of; that is, at the time of Buckley v. Valeo, that was pointed out to the Court, and also we think it is fairly obvious that once you have low contribution limits, a candidate will have to spend more time to raise an equivalent amount of money.

So we do not really see anything new there.

And in that part of the opinion, I am joined by both the Chief Justice and Justice Alito.

Now, we turn to the contribution limits.

Now, contribution limits are difficult, and the reason they are difficult under Buckley v. Valeo and our cases is the following: with a contribution limit, it is not the case the lower the better, in our view.

The reason it is not the case the lower the better is because what you are trying to do is produce a fair electoral contest and to sort of ward off various things that might impede the fairness of that contest.

Well, no limits at all, in the judgment of the Legislature, would impede that because of corruption or appearance of corruption; but if you get too low, you can give the incumbent a major advantage, because the incumbent has name recognition, the incumbent is well-known to the press.

And therefore it is not the case, in our view, the lower the better.

Rather, if you really see First Amendment interests on both sides of this equation, there must be a lower limit somewhere.

Does this Vermont statute go below the lower limit?

Well, we think that -- and here, I am joined by the Chief and Justice Alito throughout -- we think that the Legislature has a lot of leeway in defining those lower limits, but at some point they go too far.

We have looked at this closely.

Why closely?

Because on its face, the limit in front of us, say, $200 or $100, depending on how you count it, that would be way, way, way lower than the limit in Buckley ever was.

That limit was $1,000 in the early 1970s for a Congressional seat.

$1,000 in 1970, if you translate the limits here back to the limits in Buckley, i.e., you adjust for inflation, you get about $56.

And so this is about 5% of what they were in Buckley.

That, it is the lowest in the nation if you look at it all in total, all in total, and certainly the lowest we have considered.

Lowest in the nation is arguable, but lowest we have considered is not arguable.

So we have looked at it carefully.

And here, basically, is what we found.

First, the record suggests, though it does not conclusively prove, that the low contribution limits of $200 or $400 will significantly restrict the amount of funding available for challengers to run competitive campaigns.

There were petitioner’s experts in the trial court, and they tried to show that there would be a dramatic lessening, particularly in the amounts that parties could give to the candidates; the amounts might be cut that they would have by a third to a half or more.

On the other side, what they did was try not to refute the competitive campaigns, but to look at average contributions to average campaigns, funding in average campaigns.

But the point here is competitive campaigns, because the problem here is insulating the incumbent from a competitive challenge.

And so we are concerned about that, and that counts as a factor against the constitutionality of the contribution limits.

Then turn to the limitation on political parties.

Well, here, unlike any other statute we have considered, the amount that a political party can give to a candidate from that party is the same as the amount of an individual; it is not some multiple of that.

Now, we know that there is a problem of circumventing individual limits by giving to parties; but this statute pays no attention to what is on the other side.

Well, what is on the other side?

Well, these limits are so low that, for example, if the Democratic Party or the Republican Party decides that it would like to have a couple of meet the candidate for Governor, meet our candidate for Governor, coffee and doughnuts, coffee and bagels maybe they could do it once or twice; but, I mean, even in Vermont -- I know Vermont is a terrific state -- but I suspect that coffee and doughnuts or coffee and bagels is going to eat up, if you have 100 and 200 people in that room, that $200 to $400 pretty quickly, and then the party will not be able to pay for an event to meet the candidate, let alone postage or other things.

But I’ll put that to the side, because maybe they can figure a way around that.

More importantly is this: suppose we have 6,000 people in the state of Vermont out of a population of, let’s say, 360,000.

Suppose we have 6,000 who reason as follows: I do not know who should be in the State Legislature, but I do know one thing.

I would like a Democrat.

I would like the Democrats to control that State Legislature.

So what I am going to do -- the same with Republicans on the other side -- I am going to give $1, $1 to the Democratic Party, 1.

That is not an enormous amount.

But with that dollar, I want them to put it in the key races, so we can have our party controlling the Legislature.

And now suppose that the party discovers there are three key races where challenges really matter.

Could it put that $6,000 in those three key races?

No.

2,000 in each?

No.

It would be limited to $200 or $300.

Now, who have you hurt there?

You have hurt the 6,000 people, each of whom wanted to give $1 to make certain that its party controlled the State Legislature.

Now, we are not saying that there should be circumvention of individual limits; but we think interests like that, the State has to pay some attention to it, which it did not here.

And there are more problems.

The problem of contributions in kind is a serious one.

When you have very low limits and you have volunteers and those volunteers want to drive a candidate around the state use their own gasoline or maybe use their own stamps or maybe use their own postage, these low limits eat up that postage amount or the dollar for coffee and so forth pretty quickly, and the consequence of that is the risk of campaign violation; and the risk of campaign violation is a risk of very bad publicity, even if it is a minor violation.

So put those together and add one other thing: that it is not indexed for inflation.

So that means that even if we are wrong, eventually we would be right.

Further, we could not find any special justification for this.

So putting together the very low limits for the individual gifts, the same limits being on the political parties, the problem of contributions in kind, the fact that it is not indexed for inflation and the possibility that we could not find any possibility of special justification, putting those five things together, we think that this statute is lower than the Constitutional bound.

It is too low on the low side; therefore, it violates the First Amendment.

Well, as I said, that is just Justice Alito and myself … and the Chief Justice.

I don’t want to forget that.

All right.

Now, the other opinions, Justice Alito has filed an opinion concurring in part and concurring in the judgment; Justice Kennedy has filed an opinion concurring in the judgment; Justice Thomas has filed an opinion concurring in the judgment, in which Justice Scalia joins; Justice Stevens has filed a dissenting opinion; and Justice Souter has filed a dissenting opinion, in which Justice Ginsburg joins and which Justice Stevens joins in part.

I did not forget anyone.