Second Rate: The Second Circuit lives up to the Ninth’s precedents. [Campaign-Finance limitations]

National Review Online ^ | August 21, 2002 | Robert Alt

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Perhaps the Second Circuit was tired of the Ninth Circuit getting all the press. Sure, the Ninth Circuit is the most overturned circuit in the country, a status punctuated by jaw-dropping opinions like the one striking down the Pledge of Allegiance, but the Second Circuit has a reputation to defend as well. Showing that it can still offer an opinion truly worthy of reversal, a panel of the Second Circuit earlier this month upheld Vermont's comprehensive campaign-finance law, a statute that includes limits on campaign expenditures.

Reaching this conclusion was no easy task for the Second Circuit. After all, the issue of limitations on campaign expenditures, the money which a candidate or political group may spend to promote candidacy and views, is well settled: The First Amendment forbids such restrictions. The Supreme Court 26 years ago in the seminal case of Buckley v. Valeo established the constitutional guidelines for campaign-finance limitations that guide courts to this day. After acknowledging that campaign-finance regulations impinge on core First Amendment speech, the Supreme Court struck down the expenditure limitations, stating that:

The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people, individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign.

In addressing the Vermont law, the Second Circuit noted that the courts have "typically" found that expenditure limitations do not pass constitutional muster. That isn't quite right. The Supreme Court, referring to its own practice recently stated that it "routinely" strikes down expenditure limitations. Yes, routinely, as in, matter of course, not difficult, and in conformity with, appropriately enough for the campaign-finance context, controlling legal authority. This well-settled status was reconfirmed recently by none other than the Ninth Circuit. In a suit successfully litigated by the Claremont Institute's Center for Constitutional Jurisprudence, the Ninth Circuit found that a city ordinance which limited expenditures was subject to the strictest constitutional scrutiny, following which the district court struck down the statute. Indeed, the issue is so clearly settled that the proponents of the Vermont law passed it fully believing it to be unconstitutional. They expressly claimed that they offered the bill for the purpose of mounting a challenge to Buckley.

How then did the Second Circuit circumvent this clear requirement without claiming to usurp the authority of the Supreme Court to overturn a prior binding precedent? First, they marshaled legal authority in a manner that would likely earn a failing grade in an introductory legal writing course. The court relied upon the non-binding dicta of a minority of the Supreme Court for the proposition that courts should "resist a static interpretation of Buckley's mandate, which may require reinterpretation in light of subsequent experience." Citations to the opinions offered by single a justice or a small group of justices supporting campaign regulations were peppered throughout the opinion, and these non-controlling statements were often given rhetorical if not legal priority over binding Supreme Court decisions. This, of course, is ludicrous. If the Second Circuit wishes to stray from the role of applying precedent, why not give priority to Justice Thomas's dissenting opinion in the very same case, which would give campaign speech greater, rather than less protection?

Emboldened by the newfound freedom to reinterpret Buckley, the court then opted to look beyond the only justification the Supreme Court has ever recognized as justifying restrictions on campaign speech — addressing corruption and the appearance of corruption — and found that Vermont had discovered a new compelling state interest: assuring that candidates aren't "forced" to give greater access to contributors than to non-contributors. But what the court considered "powerful evidence" establishing this problem and this interest doesn't even pass the laugh test. The evidence relied upon by the court was largely anecdotal, including politicians whining about the "agony" of worrying about money, op-eds in newspapers, testimony by politicians about how they felt pressured to meet with contributors, and unsupported statements from politicians and interested lobbyists about how reducing money will increase real debate. While these may make for interesting fodder for the New York Times editorial page, they do not meet the evidentiary requirements necessary to sustain a regulation against a protected First Amendment right.

Judge Winter, to his tremendous credit, mounts a vigorous dissent (it's over 100 pages). As he notes, the Vermont bill is sweeping in its restrictions of speech. Campaigns for state senate are restricted to spending no more than $4,000, and campaigns for the state representative are limited to $2,000. This restriction is comprehensive, including among regulated expenditures virtually all campaign expenses: advertisements, office rent, office supplies, all the way down to gasoline to get to-and-from events. Under the Vermont law, it is quite literally possible that a candidate may not be able to drive to a campaign speech for fear of exceeding the expenditure limits.

Furthermore, the restrictions apply to a broad array of expenditures deemed by presumption to be coordinated with outside groups. This brings within the ambit of the act's limitations parties, advocacy groups, and even newspapers that support candidates. Thus, if a candidate meets with a newspaper editorial board, and the editorial board chooses to endorse the candidate, the cost of the column space is counted against the candidate's expenditure cap. Similarly, if an advocacy group asks for a picture for a mailing supporting the candidate's views on an issue, the cost of that ad may likewise be included in the expenditure total. The expenditure limitation therefore has a profound impact not just on the candidate, but on the press and on private citizens who would seek to have a voice in the political process. These examples of how expenditure limitations may impact Vermont races clarify why expenditure limits simply don't make sense from the perspective of promoting speech. Expenditure limitations necessarily reduce the ability of candidates and supporters to express their views in the public square — an outcome inimical to the purpose and meaning of the First Amendment.

Perhaps most stunning is the fact that despite these clear flaws in the Vermont law and in the Second Circuit's decision — flaws that will inevitably lead to this decision receiving an ignominious end either at the hands of the full Second Circuit or the Supreme Court — the self-proclaimed reform advocates actually embraced the opinion. Scott Harshbarger, president of Common Cause, issued a press release stating that the passage of McCain-Feingold coupled with the Second Circuit's opinion "shows that the tired arguments made by reform opponents are losing their appeal both in the Congress and in the Courts."

I guess the free-speech guarantee of the First Amendment is a "tired argument."

— Robert Alt is an adjunct fellow for the Claremont Institute.