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SCOTUS Strikes Down Campaign Finance Laws; Public Financing Strongest Constitutional Option

This week, the Supreme Court struck down Vermont's strict limits on campaign contributions and expenditures by candidates.  In a set of fractured opinions in Randall v. Sorrell, the Court did not put an end to all campaign finance limits but did put a roadblock in the way of anything much more restrictive than most present laws.  So if there is going to be more serious reform to lessen the power of special interest money in politics, the only real remaining route to reform are systems of public financing of elections like Maine and Arizona.

Background on the Decision:  To help legislators respond, the following is a brief summary of the case, but we recommend the following more indepth analyses as well:

  • National Voter Rights Institute
  • Brennan Center for Justice
  • ScotusBlog posts here and here
  • Expenditure Limits: Vermont's legislature adopted Act 64 as a means of reducing the appearance of corruption and freeing elected officials from the relentless pursuit of funds. Act 64 was notably different from many campaign finance laws around the country in that it placed hard limits not just on the amount that individuals could contribute to campaigns, but that it also placed mandatory limits on how much money campaigns could spend. Spending limits had been rejected by the Supreme Court in the Buckley decision as violating the First Amendment. Defenders of Act 64 raised a new argument -- regarding the need to preserve elected officials' time for activities other than fundraising -- but saw this argument rejected by the three Justices whose opinion is now the closest thing to law on the matter.
  • Contribution Limits: While the Court rejected the view of Justices Scalia and Thomas that any limitation on contributions is a violation of the First Amendment, Justice Breyer's holding opinion (joined by Chief Justice Roberts and Justice Alito) applied a five-part test in ruling that Vermont's strict contribution limits were unconstitutional. The harm found was that overly strict contribution limits both threaten speech and can prevent challengers from being able to mount serious campaigns against incumbents. Lower courts will need time to sort out this opinion, but the ruling does threaten laws in other states with strict contribution limits.

Public Financing: Fortunately, nothing in the decision threatens voluntary public financing of elections, the clear alternative to mandatory expenditure and contribution limits.   Voluntary public financing systems free candidates from the time-consuming process of fundraising and the ensuing obligation to campaign contributors and, by requiring participants to opt into expenditure limits, help put some cap on out-of-control spending in elections in favor or candidates focusing on talking to real voters.  If there is any good result out of the Court's decision, it may help focus reform away from endless tinkering with a broken campaign finance system and towards full public financing reforms -- the best solution policy-wise, politically, and Constitutionally.

Fortunately, the clean campaigns movement is really taking off. The states of Arizona and Maine already have public financing laws in place, as do the cities of Portland, OR and Albuquerque, NM, and Connecticut just enacted a system that will go into effect in the 2008 election cycle. A clean elections initiative has qualified for the ballot in California for this November's election. And other organizations across the country are working on reforms in their own states.

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