Is Buckley dead?  That's the question the justices of the Supreme Court of the United States will consider next week. The First Amendment's Lifeline

Is Buckley dead?  That's the question the justices of the Supreme Court of the United States will consider next week.

The reference isn't to William F. Buckley, the conservative icon of National Review and Firing Line fame, but rather to Buckley v. Valeo, the landmark precedent that established the rule that campaign spending limits violate the First Amendment by infringing on free speech rights.

In Buckley, the Supreme Court struck down limits on candidate spending imposed by the Federal Election Campaign Act.  In essence, the justices ruled that the government cannot restrict candidate spending because such limits would also restrict how much political speech a candidate could engage in, thus violating the candidate's free speech rights under the Constitution.  But, according to the State of Vermont, that was three decades ago and times have changed.

Despite the clear rule established by the High Court in Buckley, the Vermont legislature -- after prompting by then-Governor Howard Dean -- enacted spending limits for those running for political office in the state.  Indeed, in this day and age when a single advertisement on television or radio, or even in a newspaper, can cost thousands of dollars, the spending limits enacted by the Vermont legislature were ridiculously low.  The Vermont law established different limits for each different race ranging from $300,000 for gubernatorial candidates running statewide to only $2,000 for state representative candidates running in the smallest districts.  The spending limits applied for a two-year period, including both the primary and general elections, so each candidate could only spend the amount specified for his or her entire campaign.  More important, the Vermont limits were precisely the type of spending restrictions that the High Court had struck down as unconstitutional in Buckley.

Thus, it didn't come as any surprise when the American Civil Liberties Union, the Vermont Right to Life Committee, the Vermont Libertarian Party, the Vermont Republican State Committee and a variety of politicians filed suit to challenge the candidate spending limits.  With Buckley, they had the "slam dunk" case; all they had to say was that the highest court of the land had already decided this exact constitutional issue -- in their favor.

But since those free speech defenders filed their challenge, not all has gone as planned.  After a federal district judge struck down the spending limits, ruling that the Buckley decision prevented the government from imposing such restrictions on a candidate's free speech rights under the First Amendment, the two-judge majority on the federal appeals court did not entirely agree.  The U.S. Court of Appeals for the Second Circuit issued its first decision in the Vermont case in August 2002, but then withdrew its opinion two months later when the parties sought to have the entire bench of the Second Circuit hear the case.  It took another two years for the appeals court to enter another opinion, although the second decision was reported to be "basically the same" as the first.

During that two-year delay, the Supreme Court heard and decided another important campaign finance case, McConnell v. Federal Election Commission, the constitutional challenge to the McCain-Feingold campaign finance law.  While McCain-Feingold did not impose any candidate spending limits, it did enact all kinds of new restrictions on campaign contributions, a subject that was discussed extensively in Buckley.  When the Supreme Court decided McConnell, the defenders of McCain-Feingold and some legal commentators touted the new decision as undermining Buckley -- allowing more restrictions on campaigns.  In other words, the campaign finance "reformers" argued that Buckley was on life support, and that it was no longer unconstitutional to limit candidate spending in elections.

The two-judge majority on the Second Circuit took advantage of this opportunity.  Eight months after the Supreme Court announced the McConnell decision, the Second Circuit issued its second decision in the Vermont case.  And, though the appellate court upheld the injunction against the candidate spending limits, the two-judge majority also suggested that the limits might be constitutional if they were the "least restrictive means" of preventing corruption or the appearance of corruption in state elections.  In essence, the judges seemed to suggest that Buckley did not stand for the rule that all candidate spending limits were unconstitutional.

What's more, when the parties asked the entire Second Circuit to hear the case, some judges entered opinions stating that the candidate spending limits could be constitutional even though they restricted free speech.  Their theory was that, by imposing the same spending limits on candidates, the restrictions would limit some speech, but they would also level the playing field among the candidates, thus providing fairer elections.  That is a novel argument, and one advanced by Supreme Court Justice Stephen Breyer in his new book, but it also turns the entirety of First Amendment law on its head.  After all, the First Amendment has always generally meant that speech should be countered with more speech, not a restriction of speech.  In other words, the constitution encourages speech rather than discouraging or punishing it.

This fundamental constitutional rule hangs in the balance Tuesday when the justices hear the Vermont case of Randall v. Sorrell.  We can only hope that Buckley lives.

Fenruary 23, 2006
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