Now, it seems, the wind is about to shift. The court is poised to rule on a challenge to Vermont's campaign finance rules, which include both an unusual spending cap and very low contribution limits. Legal experts predict that the court may throw out both prongs of Vermont's strict campaign finance regime as unconstitutional.While people may think that the Court may address contribution limits with the Vermont case, I tend the Court may simply stick to the expenditure limits.
It's the first key test of election laws to come before the high court since the arrival of newly installed Chief Justice John G. Roberts and Justice Samuel A. Alito. The key shift, of course, is the retirement of now-departed Justice Sandra Day O'Connor, who was the swing voter in a long string of narrowly-decided campaign finance rulings.
The Vermont case, known as Randall v. Sorrell, is significant because it asks the court for the first time in three decades to address whether spending limits tread on free speech. In its 1976 Buckley v. Valeo ruling, the high court threw out spending caps in the Federal Election Campaign Act, saying that such limits violated the First Amendment. (Links in original)
While I tend to believe that contribution limits are an imposition on free speech, there does not seem to be a great deal of good data on the impact of contribution limits on teh ability of candidates to get their message out. This is the gist of the Shrink Missouri case, that the Court should not be in the business of line drawing unless the line the legislature draws is so low as to inhibit the ability of candidates to dessiminate their message.
Certainly, the Court has room to delve into contribution limits in this case, I think external politics surrounding the confirmation of Chief Justice Roberts and Justice Alito may dictate a narrow ruling. Given their proclaimed stances as judicial, as opposed to ideological, conservatives, the safest move for the Chief is to seek a ruling based on settled precedent, that expenditure limits violate the First Amendment and leave contribution limits alone as voiding those limits in this case, without more, would be overturning a long-standing precedent. Given their short tenure, albeit a lifetime tenure, on the Supreme Court it may be judicially prudent to avoid reversing precedent.
Hat Tip: Prof. Hasen.