Typo in Kennedy Concurrence in Randall (Vt. Campaign
Finance Case)?
Reid Cox emails:
In the Kennedy concurrence (in Randall v. Sorrell) I cannot
seem to get by the fact that there may be a significant error.
Kennedy's third graf seems to be about campaign contribution
limitations, but strangely, the second sentence of that graf switches
back into discussing "expenditure limitations." To make it matters
worse, the second sentence, as it currently appears, accurately
describes the law with respect to "expenditure limitations" -- namely,
that under Buckley they are subject to "exacting scrutiny." But, at the
same time, if "expenditure limitations" was changed to read
"contribution limitations" to agree with the rest of the graf (and the
flow of the opinion), the sentence would, I believe, accurately reflect
Kennedy's belief and prior suggestions that the "exacting scrutiny the
plurality applies to [contribution] limitations … is appropriate." So
which is it? As I said, I believe both the rest of the graf and the
flow of the opinion (note the previous graf discussed expenditures and
now, in this graf, Kennedy suggests he is moving on to another issue by
stating "The parties neither ask the Court to overrule Buckley … [as]
that decision applied to campaign contributions"") suggest the second
sentence of the third graf erroneously refers to "expenditure
limitations" rather than "contribution limitations."
I think this is indeed a typo and that Justice Kennedy meant to refer
to "contribution limitations." On the exacting scrutiny point, it is
easy to forget, given the extremely deferential standard of review of
contribution limits in recent cases (such as Shrink Missouri)
that the Court in Buckley
used the term "exacting scrutiny" to refer to both contribution and
expenditure limits:
We cannot share the view that the present Act's contribution
and expenditure limitations are comparable to the restrictions on
conduct upheld in ''Brien. The expenditure of money simply cannot be
equated with such conduct as destruction of a draft card. Some forms of
communication made possible by the giving and spending of money
involve speech alone, some involve conduct primarily, and some involve
a combination of the two. Yet this Court has never suggested that the
dependence of a communication on the expenditure of money operates
itself to introduce a non speech element or to reduce the exacting
scrutiny required by the First Amendment. See Bigelow v. Virginia,
421 U.S. 809 , [424 U.S. 1, 17] 820 (1975); New York Times Co. v.
Sullivan, supra...
(my emphases). As Ned Foley has noted,
Justice Breyer's opinion emphasizes Buckley over Shrink Missouri.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org