For now, I just want to point out that both points Marty makes, based on the briefs and argument, are once again structural or systemic concerns, not ones involving conventional individual rights: (1) taking Marty's second point first, the concern that low contribution limits will disadvantage challengers vis a vis incumbents is obviously this kind of systemic concern; (2) as to Marty's first point, as those who know constitutional doctrine understand, the state generally does not have to provide an adequate reason for policies it adopts. The state can raise or lower the tax rate without having to satisfy courts that it has adequate reasons for doing so. If the Court were to hold that the state had to have an adequate reason for Vermont lowering its contribution limit, I believe the only sensible understanding of such a ruling would have to be that the lower limit made it too difficult to conduct effective campaigns -- once again, a structural or systemic concern, not a ma!
tter of individual rights. I don't think Marty, by the way, would disagree about either of these points.
If I have a chance, I'll respond to other comments tomorrow (unless the Court interferes by actually issuing an opinion in the case).
Richard Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377
<marty.lederman@comcast.net> 6/4/2006 11:17 PM >>>
Two other minor aspects to keep in mind:
First, in the Sorrell case there's an issue of comparative limits. At least some of the briefs made a big deal out of the fact that Vermont had previously had a very low limit ($1000, I think), and that the state had presented little, if any, evidence that any state interest would be advanced by dropping the limit to $500, as it had done (if I recall the numbers correctly). (I'm not saying this was a good argument -- only that I recall it was a theme of at least some briefs.) In other words, the Court might look at the issue not so much from the "harm to political process side," but instead from the perspective of whether the state has provided an adequate reason for its change, i.e., whether the state has adequately justified a decrease from $1000 to $500. (I don't believe this was the subject of much attention at oral argument, however.)
Second, at oral argument Breyer worried aloud whether the Vermont limit would effectively prevent challengers from running effective campaigns against incumbents, because the cost of unseating an incumbent is so prohibitive.
I don't mean to suggest that either of these arguments is a good one -- only that they are lurking in the case, in addition to the questions Rick raises.
-------------- Original message --------------
From: "Rick Pildes" <PILDESR@juris.law.nyu.edu>
When the Court decides the Vermont campaign-finance case, the most significant
issue will be whether the Court invalidates Vermont's contribution limits. The
Court consistently has held that such limits are subject to First Amendment
scrutiny. But until now, the Court has never held any actual limit to be
unconstitutional. As the challengers like to put it, Vermont's limits are "the
lowest in the nation," thus presenting a nice test (though campaign costs in
tiny Vermont are among the lowest as well, making the statement a bit of
rhetorical flourish, since some state's limits must be lowest).
Unnoticed in the discussion so far, however, is the question of why contribution
limits "too low" should ever be considered unconstitutional. Doctrinally, the
Court has said that such limits become too low when they make it too difficult
to run effective campaigns. As the central precedent, Shrink Missouri, put it,
quoting Buckley v. Valeo, these limits cannot be so low they prevent "candidates
and political committees from amassing the resources necessary for effective
advocacy." Whatever else they disagree on in this area, nearly all the Justices
have accepted and endorsed at least this standard.
But -- and here's the key point -- this standard has nothing to do with
protecting anyone's individual right, whether it's a right of free speech or any
other individual right. The difference between constitutional and
unconstitutional caps has to do with whether campaigns and candidates can amass
enough collective resources to communicate effectively and enable elections to
be meaningful events. These constitutional principles and values go, then, to
whether the system of democratic elections can function properly in the face of
certain contribution limits. These values, thus, are purely structural and
systemic ones. Put another way, no one can claim -- and the constitutional
doctrine does not claim -- that an individual right to free speech is violated
by a limit of $250 but not one of $500. If the former is "too low," it can only
be because campaigns will not be able to muster "enough" financing to run
effective campaigns. To be sure, some Justices believe all cont!
ribution limits do violate individual free speech rights; my point does not
apply to their position. But the Court's doctrine, which requires
distinguishing limits that are "too low," is a doctrine about protecting
systemic values, not individual rights. Indeed, it is a clear example of the
view I have been pressing for years, which is that a great deal of the
constitutional law concerning democracy can only be understood as about
protecting systemtic values, such as "the integrity of democratic elections."
If the Court strikes down Vermont's limits, that will be the only way to
understand the Court's decision. If the Court upholds Vermont's limits, perhaps
we might conclude that the Court is, in fact, deeply uncomfortable, intuitively
or more self-consciously, with enforcing constitutional claims that are really
not about individual rights, even if constitutional doctrine does purport to
recognize these broader kind of systemic concerns about the intregity of
democratic elections.
Richard Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377