Prof. Pildes started with this general statement:
"Any constitutional doctrine regarding campaign financing that
distinguishes contribution limits that are legal from that are "too low"
necessarily rests on judicial protection of "the integrity of democratic
elections," a structural value, not on judicial protection of individual
rights."
My question is, why must contribution limit analysis "necessarily" rest
on a structural value? Buckley, when dealing with contribution limits,
explained that the impact on the speech rights of the contributor was
minimal. Speech rights are held by an individual, not a "structure."
If Buckley accepts the premise that contributions by individuals are a
type of speech, albeit one that is minimally impacted by limits imposed
by law, why not have a constitutional scheme designed to protect the
individual right by not imposing too low a limit on contributions.
Granted, it may simply be a matter of degree, and the Court may be
unwilling to tread into the realm of the necessary line drawing that
comes from calling one set of limits "too low" in relation to another
set of limits. But the concept of an individual right impacted by
contribution limits seems almost too obvious to me. The structural
concern may be one of corruption from too large a contribution (a
debatable point in my mind), but the making of a monetary contribution
is clearly a form of speech circumscribed by the state, an individual
action and right and worthy of some sort of constitutional protection.
(I guess this puts me squarely into the Brad Smith camp on this score).
Matthew Johnston
Senior Compliance Manager
Democracy Data & Communications
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-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick
Pildes
Sent: Monday, June 05, 2006 9:35 AM
To: election-law@majordomo.lls.edu
Subject: The Vermont Case: II
Any constitutional doctrine regarding campaign financing that
distinguishes contribution limits that are legal from that are "too low"
necessarily rests on judicial protection of "the integrity of democratic
elections," a structural value, not on judicial protection of individual
rights. On the comments so far:
1. The Citizens Against Rent Control case deals with contribution
limits in the ballot initiative context, not the context of candidate
elections. The law is fundamentally different in the two areas. Just
as government cannot limit even corporate expenditures -- at all -- in
the initiative context, it cannot limit personal contributions -- at all
-- in the initiative context. Because only candidate corruption can
justify imposing either contribution or expenditure limits, and there
are no candidates to corrupt in the initiative context, there is no
basis for state limits on contributions to initiative campaigns. The
Court did not strike down the limit in Rent Control because it was too
low; it struck it down because no contribution limit is justifiable.
Remember, the Court viewed this as an easy case: the decision was 8-1,
a rarity in this area of law. That's because the law is clear about the
fundamental difference between initiatives and elections. In the
former!
, the Court DOES recognize a conventional, individual First Amendment
right to unlimited speech or spending or contributing. But that's
completely different from a doctrine, relevant only in the election
context, that permits some contribution limits but strikes down others
when the SYSTEM of meaningful elections will otherwise be threatened.
2. Brad Smith makes a novel, interesting criticism of the overall
system of election regulation that might be emerging. He argues that,
if regulation shuts off more and more routes of contributing, then the
Court should revisit its doctrine and recognize, perhaps, an individual
First Amendment right to make direct and unlimited contributions
directly to candidates. If the Court did so down the road, that would
indeed change the principles underlying this area of law that currently
govern it. Doing so would recognize a new, individual First Amendment
right that does not now currently exist -- a pragmatic updating, as Brad
sees it, of First Amendment rights to take account of the changing
nature of regulation.
3. I see Dan's comment as essentially a semantic quibble, not one that
goes to a real substantive disagreement. But perhaps I'm wrong. Sure,
we can always verbally reframe most structural or systemic concerns
about the nature of democratic elections as involving the "right" of the
candidates to participate in fair elections. Dan disagrees with my
view, for example, that courts should constrain the intentional
elimination of competitive elections by self-interested redistricters.
In my view, courts have a role to play in protecting the groundrules of
democracy from self-interested manipulation, which is a structural or
systemic concern properly enforced by courts. But I could easily
reframe that as the "right" of a candidate to participate in a fair
election, or a meaningful election, or the right of a candidate not to
be "discriminated" against. If a candidate has some kind of individual
"right to receive money," to be able to run a meaningful campaign, it's
not clear!
why he/she can't have a similar "right to receive a fair districting
system," or similar "rights" to a meaningful election process. A
second, more doctrinal problem with Dan simply putting the functional
pea under a different verbal shell is that the law actually recognizes
very few individual "rights" of candidates in elections. That's because
elections are not like a speaker standing on the proverbial soap box in
the park. Elections are so highly structured and regulated by law that
candidates have few rights formally recognized by constitutional law.
4. More broadly, Dan's point confirms my view, at least as I see it.
Judges and scholars almost inevitably recognize at some level that
constitutional law must protect certain structural or systemic values
that go to the integrity of democratic elections. But there's a great
inability or reluctance to acknowledge this directly. Perhaps the
reason is that judges come to this domain with legal frameworks in mind
taken from conventional areas of individual rights or equality, and they
simply transport those frameworks to the area of democratic elections
without fully reflecting on what's unique about constitutional oversight
of elections. Or perhaps they feel uncomfortable with the thought that
judges are enforcing such structural concerns. So they smuggle those
concerns into rubrics like "the right" of candidates to a "meaningfully
competitive election system." That's what Dan has done in his comment,
in my view. But we should not let that rhetoric distract us from the!
fact that it is, under one label or another, these structural concerns
about the integrity and meaningfulness of democratic elections that
constitutional law enforces when it does things like draw lines between
contribution limits that are valid and those that are "too low."
Richard Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377