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The Libertarian

Vin Suprynowicz

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On June 26, the U.S. Supreme Court managed to do the right thing with Vermont’s draconian campaign contribution and spending limits, tossing them out as a violation of the First Amendment right to political speech.

Vermont’s contribution caps, $200 for some races, were the most restrictive in the nation. The Republican Party backed the challenge to the state law.

In a 6-3 decision, the court ruled Vermont’s severe limits on how much a candidate could spend in pursuing office reduced “the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” So now they’re gone.

The court also struck down the state’s limit on how much individuals, political committees and political parties could contribute to a campaign, noting that limits that are “too low” -- like the ones in question -- protect incumbents from electoral challenge and thus reduce “democratic accountability.”

So much for the good news. As is becoming more common in the philosophically divided court, the majority justices took so many different routes to reach their 6-3 position that it’s hard to follow their varying rationales without a program.

Justices Clarence Thomas and Antonin Scalia, predictably, took the strongest stand for the right of individuals to contribute and spend money on political speech. Given their way, they would overturn most court precedents that grant government any oversight in this realm, holding money in a political campaign equates to speech and should be beyond the reach of government regulation.

Justices Anthony Kennedy and Samuel Alito joined Thomas and Scalia in striking down the Vermont law. They declined to go quite so far in ruling out all government restrictions, but both suggested the court’s 1976 and 2003 rulings on the topic were too tolerant of campaign limits and could be reconsidered.

Justice John Paul Stevens, who has long held that money can be regulated because it’s property, not an expression of speech, was among the dissenters, saying he actually favored more stringent campaign-finance laws.

Justice Stevens sees money as corrosive, since it makes citizens unequal in the extent to which their voices can be heard. Candidates also gain unfair advantage through money when one is able to grossly outspend another, Stevens said Monday.

Here, surely, is a new frontier for redistributionism. Not only should the state grab the earnings of the rich and dole them out to the poor, apparently it is also obliged to muffle those with loud voices, while buying bullhorns for the soft-spoken. Given that statistics show tall men are elected more frequently than those of shorter stature, would the justice also favor the mandatory removal of several inches of shinbone from those unfairly favored?

Perhaps predictably, Justice Stevens also managed to offer the silliest example, declaring, “It was the content of William Jennings Bryant’s comments on the ‘Cross of Gold’ -- and William McKinley’s responses delivered from his front porch in Canton, Ohio -- rather than any expenditure of money that appealed to their cost-free audiences.”

Actually, William Jennings Bryan spent a great deal of money back in 1896, gallivanting around the country demanding an inflationary fiat currency -- only to lose to Mr. McKinley, who largely sat home on his porch, defending sound money. The example may harken back to a bygone era -- neither candidate could buy any TV time -- but it surely shows the gaudier campaign doesn’t always buy the election.

In the end, the court on June 26 stuck with its 30-year-old -- albeit philosophically unintelligible -- method of determining when campaign-finance restrictions go too far. Justice Stephen Breyer’s controlling opinion ruled the Vermont contribution limit was too restrictive and the expenditure limit unconstitutional under the court’s landmark 1976 ruling, Buckley v. Valeo, which permitted limits on political contributions but rejected campaign-expenditure caps.

“It’s always good news when the Court strikes down draconian campaign finance laws, but the nation deserves more than fractured opinions with no clear standards,” commented attorney Steve Simpson of the Institute for Justice, which filed an amicus brief in the case. “The First Amendment is simple and elegant. There is no reason that decisions interpreting it should be so convoluted and confusing.”

“For the foreseeable future, we’ve hit the high-water mark” on restrictions, concluded Rick Hasen, a professor at Loyola Law School in Los Angeles and author of two books on election law. “I don’t think there’s any question about that.”

Let’s hope so. The public should be told where their politicians’ money comes from, the better to evaluate to whom they are beholden. But limits on campaign contributions and expenditures only drive the money river underground, where it can no longer be tracked. Meantime, -- to the extent they can ever succeed, at all -- they become an incumbent protection plan, making it ever harder for challengers with fresh ideas to be heard.