Sorry, the second paragraph of my message got garbled. Here is a corrected version.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Lowenstein, Daniel
Sent: Sun 6/4/2006 9:05 PM
To: election-law@majordomo.lls.edu
Subject: FW: The Supreme Court, Contribution Limits, and the Vermont Case
I do not agree with Rick's analysis. Buckley argued that although a contribution limit affects the contributor's speech rights, it does so only in a minimal way. In particular, the amount of the contribution limit had virtually no affect on the contributor's ability to communicate. The main First Amendment imposition on the contributor arises under freedom of association.
It is true, as Rick argues, that the imposition on the contributor's speech, such as it is, is not affected by whether the size of the limit precludes the candidate from raising "enough" to campaign effectively. But the purpose of the constitutionally protected association with the candidate and with other contributors and supporters is to permit the candidate to make his case effectively to the voters. Thus, the Court can take the position that a contribution limit that allows for "enough" to be raised is an insubstantial infringement of these people's right to association, but not a contribution limit too low to allow "enough" to be raised.
Furthermore, Rick ignores the free speech rights of the candidate and his campaign. If a contribution limit has the effect of preventing the candidate from speaking effectively, that is an infringement of the candidate's freedom of speech. Buckley did not deny that point but argued--largely on empirical grounds--that in fact, the FECA contribution limits would not have that effect, at least not substantially. Now, one may be troubled, as I am, by the assertion in Shrink Missouri that the legislature and/or the courts, or anyone other than the speaker himself, can decide how much speech is "enough." But the question of whether the First Amendment analysis is sound or adequate is not the same as the question of what First Amendment interest is at stake. The First Amendment right is the individual right of the candidate and his campaign to speak. Of course, the First Amendment questions are informed by concerns about how the overall system will be affected. Such !
is inevitably the case in any balancing approach. But the First Amendment continues to protect individual rights. The "system" that it protects is the system of freedom of speech.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick Pildes
Sent: Sun 6/4/2006 5:16 PM
To: election-law@majordomo.lls.edu
Subject: The Supreme Court, Contribution Limits, and the Vermont Case
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