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
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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