The six justices who voted to strike down the Vermont law could not agree on how far the First Amendment really goes in protecting what has always been the core of its protections -- political free speech. The First Amendment's Glass Half Full

Those who believe -- like we do -- that the First Amendment really means there can be "no law ... abridging the freedom of speech" had to be overjoyed Monday when the Supreme Court of the United States struck down a Vermont campaign finance law.

After all, the Vermont law not only unconstitutionally imposed campaign contribution limits, but it also restricted campaign expenditures, too.  In other words, the law abridged the free speech and association rights of citizens by limiting contributions to the candidate or political party of their choice, and then did the same to those candidates and political parties by restricting how much they could spend.  But those limits are history now.

Nevertheless, while Monday's decision was a big step in the right direction for the High Court's First Amendment and campaign finance jurisprudence, the glass is still only half full.

The six justices who voted to strike down the Vermont law could not agree on how far the First Amendment really goes in protecting what has always been the core of its protections -- political free speech.

The lead opinion -- written by Justice Stephen Breyer and joined in full by Chief Justice John Roberts and for the most part by Justice Samuel Alito -- refused to protect political speech categorically and completely.  Instead, it concludes that Vermont's campaign finance law went "too far," "understand[ing] that many ... campaign finance regulations impose certain ... burdens to some degree."  Thus, in striking down the Vermont law, those three justices reasoned it "burden[ed] First Amendment interests in a manner that is disproportionate to the public purposes [for which it was] enacted to advance."

As we have stated time and time again, such balancing of core First Amendment rights does not do anyone but those presently before the High Court any favors.  After all, when there are slightly different limits tomorrow or years from now, how will anyone know whether "they impose burdens upon First Amendment interests that (when viewed in light of the statute's legitimate objectives) are disproportionately severe," as the three justices found Monday.

Indeed, this blurred and incomprehensible constitutional line was precisely the objection raised by the other three justices who voted to strike down Vermont's restrictions.  And, even among those three, there was both a subtle request for a better framework and a blunt repudiation of the ad hoc standard.

Justice Anthony Kennedy took the polite approach, noting his "own skepticism regarding" the "universe of campaign finance regulation [that] this Court has in part created and in part permitted by the course of its decisions."  He explained that the High Court's decision "may cause more problems than it solves" since "the present system requires us to explain why $200 is too restrictive a limit while $1,500 is not."  And, he observed that the justices' "own experience gives [them] little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance."  Thus, retaining the high ground, Justice Kennedy "concur[red] only in the judgment."

On the other hand, Justice Clarence Thomas, joined by Justice Antonin Scalia, was far more direct.  From the very outset, Justice Thomas stated that Monday's decision -- along with the rest of the High Court's campaign finance decisions -- "provide[d] insufficient protection to political speech, the core of the First Amendment."  As a result, Justice Thomas and Scalia would start anew and replace the entirety of the Supreme Court's campaign finance jurisprudence "with a standard faithful to the First Amendment."

There can be little doubt that Justices Thomas and Scalia are correct in their criticism that Monday's "decision offers nothing resembling a rule at all."  After all, as Justice Thomas explains, the plurality's independent judicial "determination that this statute clearly lies on the impermissible side of the constitutional line gives no assistance in drawing the line" since their "feeling does not amount to a workable rule of law."  But it's important to remember that constitutional change comes slowly at the High Court, and it was only two terms ago that five justices allowed perhaps the greatest abridgement of political speech in the history of the republic by upholding the McCain-Feingold law.

Thus, Monday's decision marked a tipping point.  Three justices (Kennedy, Thomas, and Scalia) are now on record willing to enforce the First Amendment's command that there shall be "no law ... abridging the freedom of speech."  And, two others (Roberts and Alito), left themselves open to such a possibility, not taking that step now but not shutting that door either.  So the First Amendment's glass is no longer half empty, it is half full and ready to be refilled.

June 29, 2006
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