More Reaction to Vermont Case

This from Bob Bauer:

Breyer concludes that while the Court should not attempt to wield its "scalpel" too incisively, making judgments that the legislature did not, he does precisely that. First, he concludes that the Vermont contribution limits are so low, when compared to the schemes in place in most states, that they present the "danger signs" that they would impede the fundraising required for constitutionally protected speech and association. What follows then is Breyer's identification of specific factors bearing on the question of whether the contribution limits adopted by Vermont are "closely tailored." Breyer stresses that these factors must be considered in the aggregate--"taken together," and he finds that when considered in this way, they show that the limits fail to satisfy the constitutional test.

These are the factors:

(1) The effect on the ability of challengers to compete

(2) The imposition on political parties of the same low limits established for candidates

(3) The treatment of volunteer services, especially the allocation of expenses incurred by volunteers to the contribution limits

(4) The absence of an adjustment for inflation

(5) The absence of "any special justification that might warrant a contribution limit so low or so restrictive as to bring about the serious associational and expressive problems..." found by the plurality.

This last stress on the associational significance of the limits, when set this low, will be welcomed by parties. As noted here on several occasions, associational analysis has fallen on hard times. Better times may lie ahead.

I don't have Bob's experience with rights of association analysis, but here is a simple requet of the Court:

When you are laying out a two prong test, make sure one of your prongs does not include multiple parts--it just annoys us practitioners.

One of the things that I found interesting about the Vermont Act 64 is its treatment of volunteer services and activities. Given the disparate treatment of volunteer work and volunteer expenses (like driving to and from events), I wonder if this is a place where future regulation may occur.