Vermont Case Offers Chance to Embrace Spending Limits

Roll Call columnist and Democratic consultant Donna Brazile offered thiscolumn about the Vermont campaign finance case the Supreme Court will examine sometime next year. The primary focus of the case, Randell v. Sorrell, is Vermont's cap on expenditures by political candidates seeking state elective office. The rationale offered by the Vermont legislature and a focus of the litigation is that officerholders spend so much time raising funds that it corrupts the legislative process because incumbents give their time more to contributors and less to constituents.

Brazile notes, not inaccurately I might add,

Every politician I know would much prefer to spend their time doing the job they signed up for, talking with voters, learning about their lives and trying to find real solutions to the problems they face. But the cost of running for public office, largely driven by the expense of the broadcast ads that are the bread and butter of modern campaigns, is so high that fundraising for the next race must begin virtually the day after they win the last one.

Of course, the expenses of running any campaign for public office are significant and no one doubts that. There are options, of course:

The alternative — recruiting wealthy candidates to bankroll their own campaigns — presents its own problems. New York City Mayor Michael Bloomberg (R) is once again in the process of spending tens of millions of his own fortune and drowning out the voice of another candidate of ordinary means. And in New Jersey, an exceedingly nasty race for governor between two self-funders is likely to set a $72 million spending record in the state while proving that more money doesn’t mean better or more enlightening campaigns.

I agree that the predeliction for finding wealthy candidates who can self-fund is neither attractive nor is it particularly good for a democratic society to be trending toward a plutocracy. However, constitutionally, we probably cannot prevent the self-funded candidate from appearing on the ballot.

And so we turn to the Vermont approach. The logic of the Vermont law is this: candidates (particularly incumbents) spend an inordinate amount of time raising money for their campaigns. The need to raise ever larger sums of money, under a limited per person contribution system present in Vermont, means that candidates must spend more time raising money. The time being spent raising money means there is less time for legislators (incumbents) to spend on their official duties, i.e. legislating.

In the Vermont case, the 2nd Circuit Court of Appeals found that the demands of fundraising in most races are so great that corruption is the inevitable result — the banal, insidious kind that happens every day, in every campaign. In typical testimony, Cheryl Rivers, a Vermont legislator who introduced a bill requiring the labeling of genetically engineered food, recalled her inability to get support from the Senate leadership because the pharmaceutical industry was already withholding campaign donations based on her party’s legislative proposals relating to drug companies. The Senate president told her, “We’ve already lost the drug money, and I don’t need to lose the food manufacturer money, too. So I’m not going to sign the bill.” That’s the kind of trade-off that occurs every minute in politics, as campaign positions and legislative priorities are perverted to suit the needs of the biggest contributors.

The court also stated the obvious: With only 24 hours in the day, even the most principled candidate has little choice but to give the bulk of their time and attention almost exclusively to big donor, the special interest with the deepest pockets. Lost in the shuffle are ordinary citizens who can’t afford to pay the price of entry, the maximum allowable contribution. Raising money simply takes so much time and energy that, as a practical matter, officeholders don’t have the bandwidth to do their real job of listening to voters and making policy decisions based on their merits, rather than some trade association’s latest cri de coeur.

Thus the Vermont law was born. Depending on the level of office being sought candidates for that office are not only limited in the amount of money they can receive from any one contributor (a scheme endorsed under Buckley v. Valeo), but now they cannot spend more than a specified amount on the campaign (a scheme declared unconstitutional under Buckley)
Brazile ends with this message:

What’s wrong with reasonable spending limits that leave plenty of cash to run great campaigns but also level the playing field and allow plenty of time for the real work of campaigns and governance?

There’s nothing wrong with that, and a lot that’s right. Opponents will raise the constitutional issues they always do on the topic, but if we truly want our democracy to remain a representative, responsive and honest one, we desperately need a conversation about our current campaign finance system.

I am in full agreement with Brazile that we as a nation need to have a dialogue about how our campaigns are run and funded. However, the Vermont law is likely to be found unconstitutional, but not for the reason that some people will think.

Buckley stood for the proposition that expenditure limits were unconstitutional and a limit on the speech of a candidate for office, a limit on political speech. Buckley stated, and many other cases have reaffirmed, that political speech is the speech the Framers had foremost in their mind when crafting the First Amendment. Thus Bucklet stated that any law dealing with limits on political speech will be subject to strict judicial scrutiny.

Under a strict scrutiny test, a law must be supported by a compelling governmental purpose (to be proven by the government) and narrowly tailored to achieve that specific end. Under Buckley and subsequent cases, corruption or the appearance of corruption have been the only compelling reasons found to support campaign finance laws and regulation.

The Vermont law's purpose is being touted as a way to prevent the corruption that may be possible when lawmakers make the decision to speak to contributors more than their average constituents. Thus, the Vermont law seeks to limit the time spent raising money by limiting the amount of money they can spend. The logic fails almost immediately. Take Vermont Legisaltor Bob Wilson. Assume that he, in an effort to appear more like the common man he represents, decides to take no contribution greater than $25. Let's assume that the expenditure limit for his office is $100,000. Bob is going to need to raise a lot of $25 contributions to reach his limit. That takes time--time that he could spend legislating! The purpose of the expenditure limit is not achieved since Bob is still spending more time raising money, albeit in smaller amounts, that he is legislating.

The solution Vermont should have sought limits not the expenditures, but the actual time in which funds can be raised. The idea that I have espoused in the past is for a temporal limit on fundraising. The law would be thus. No Incumbent who is a candidate for office shall begin raising funds until Jan. 1 of the regularly scheduled general election or the filing of a challenger for that seat. Thus, at least for a little while, a legislator is not spending every waking hour raising funds.

Vermont may very well have a compelling govenrmental interest in the preventing legislators from spending so much time raising campaign funds, but the law they crafted is not narrowly tailored to achieve that goal. Thus, Brazile is right, opponents of hte law will seek to overturn it, and they should succeed.

Linked at the OTB Traffic Jam.