The Supreme Court’s greatest opinions — the ones that live for years and speak eternal truths — are pithy. John Marshall’s opinion in Marbury v. Madison (1803) was 26 pages in the U.S. Reporter system. Brown v. Board of Education (1954) was only 13 pages.
In contrast, the longer the opinions, the less likely they will live a long life: the opinions in Buckley v. Valeo (1976) total 294 pages. That case recognized that the First Amendment protects campaign financing because money talks; if a candidate is allowed to speak, but the government can restrict him from raising and spending money to rent a large hall and megaphones, then no one can hear what he has to say. The Court also recognized the incestuous danger presented when campaigning becomes a regulated industry, because the incumbent politicians will be regulating the challengers who oppose them.
Buckley upheld many (but not all) regulations of campaign financing after drawing a distinction of constitutional magnitude between restrictions on expenditures (which “impose direct and substantial restraints on the quality of political speech” and thus merit more constitutional protection) and on contributions (“only a marginal restriction on the contributor’s ability to engage in free communication”). This distinction, the complexities it created, and the rationales it generated account for the length of the opinion.
McConnell v. Federal Election Commission (2003) upheld almost all of the Bipartisan Campaign Reform Act of 2002, in opinions that totaled nearly 300 pages. The case was a loss for groups like the ACLU, the AFL-CIO, and the Chamber of Commerce, which filed briefs opposing the restrictions on grounds of free speech. (Newspapers routinely report that only “conservatives” oppose these restrictions; they must not read who signs the briefs.) And it was a tremendous victory for those who support government regulation.
That victory did not last long. Randall v. Sorrell (2006) is the latest campaign finance decision in a long line of long opinions — nearly 70 pages long, with no majority. The Court was as fractured as the nose of a punch-drunk boxer; six justices (using various rationales) concluded that Vermont’s statute (Act 64) violates free speech. Breyer, joined by Chief Justice Roberts (and by Alito in part) invalidated Vermont’s strict spending and contribution limits. Alito, in a separate opinion, allowed that he might overrule Buckley in a different case. Kennedy concurred in the judgment given his skepticism regarding the Court’s entire campaign finance caselaw. Thomas, joined by Scalia, agreed that Act 64 is unconstitutional and argued that the Court should overrule Buckley.
Stevens, dissenting, also argued that Buckley should go, because he believed it protected free speech too much. He yearned for the cost-free campaigns represented by the Lincoln-Douglas debates, but neglected to mention that in that long-ago time, they campaigned for the Senate before there was a Seventeenth Amendment, when there was no popular election for U.S. Senators. (Of the seven debates, none were in Chicago, the most populous city in Illinois, because the state legislature appointed the U.S. Senators.) Souter also dissented, joined by Ginsburg (and by Stevens in part), and would have simply upheld the Vermont law.
Act 64 limited campaign expenditures to a maximum of $300,000 for gubernatorial candidates and $2,000 for those running for state representative, indexed for inflation. Buckley had invalidated a federal limit on campaign expenditures, arguing that it violated free speech “by restricting the number of issues discussed, the depth of their exploration and the size of the audience reached.” Randall agreed.
Act 64 also limited political contributions to $400 to gubernatorial contenders and $200 to state representatives, and limited contributions by political parties attempting to aid their candidates. These limits were not indexed for inflation. Breyer’s plurality concluded that these very low limits made effective campaigning impossible. “A failure to index limits means that limits which are already suspiciously low, will almost inevitably become too low over time.” When Breyer read a summary of his opinion in Court, he added, “even if we’re wrong, eventually we would be right,” because of the failure to index for inflation. Only six years earlier, the Court (in a Souter opinion) had specifically expressed no concern that contribution limits were not inflation-adjusted.
It had been a decade since the Court invalidated a campaign finance law (where the Court, also with no majority opinion, struck a Colorado law that forbade uncoordinated expenditures by a political party). And Randall marks the first time the Court has ever invalidated a limitation on individual or party contributions to a candidate.
What will the future bring? Longer opinions, if the Court tries to keep the complex distinctions of the prior cases.
There are hints, however, that the Court may not do that. Breyer’s plurality (joined by Roberts and Alito) advised that the appellate courts should review the record “independently,” and not defer to the lower courts to make sure that the restrictions on campaign financing are “narrowly tailored.”
So perhaps hope is warranted for a shorter decision in the future, one that remedies the confusion created by the Court’s past decisions on campaign finance.
— Ronald D. Rotunda teaches law at George Mason University