Skip to main content

View Diary: SCOTUS: Vermont Campaign Finance Law Is Unconstitutional (143 comments)

Comment Preferences

  •  More, from Prof. Rick Pildes (6+ / 0-)

    He teaches election law at NYU Law School.  He had this to say, on an election law discussion list, and it may make people a bit happier with the plurality:

    The most significant fact about today's decision is the set of reasons the Court gives for holding unconstitutional Vermont's contribution limits.  The Court concludes that limits which are too low cause a constitutional injury to an appropriately competitive, accountable, and fair democratic electoral process.  In the Court's judgment, contribution limits that are too low threaten to give incumbents a structural advantage over challengers.  These limits "implicate the integrity of the electoral process;" they "harm the electoral process by preventing challengers from mounting effective campaigns;" they reduce "democratic accountability: they are obstacles to "electoral fairness;" and, in conclusion, "the constitutional risks to the democratic electoral process become too great."  See pp. 13-14 of Justice Breyer's opinion.

    Here is the key point, as I debated with Dan Lowenstein in advance of the decision:  the Court in this decision makes as clear as it has in any constitutional decision involving democratic institutions that the Court views itself as having an essential role to play in preserving the structural integrity of the democratic process.  None of the harms noted above involve individual First Amendment rights in any conventional sense.  The decision rests on the principle that insiders, current legislators, can regulate elections in a way that insulates themselves improperly form competition and that undermines the integrity and accountability that should be central to democracy and democratic elections.

    Justice Breyer has long been drawn to exactly such a view.  Most significantly, the principles on which this decision rests could have implications for many other issues concerning the Court's oversight, through constitutional law, of democratic politics.  Consider gerrymandering, most obviously:  gerrymandering can be viewed as creating many of the same kinds of harms — involving incumbent protection, threats to democratic accountability and to the integrity of elections — and might similarly not be thought to involve harms to conventional individual rights.  The principles of today's Vermont case might well imply that courts have an essential role, nonetheless, in protecting the democratic system against various structural harms insiders are capable of causing to it.  For that reason, the Vermont case is an intriguing and surprisingly important decision, with potentially broad implications throughout the law of democracy.

    (republished with permission, emphasis added)

    •  thanks for passing this along (0+ / 0-)

      I gotta go to law school...

    •  Nice - but maybe Pollyannaish-nice (1+ / 0-)
      Recommended by:
      libertarian soldier

      Yes, it is possible to argue that a decision such as this can provide a doctrinal basis for judicial intervention to ensure the integrity of the political process -- gerrymandering being an obvious application.  But, really, it would not be hard for the Court in that event to say "nah, we were talking specifically about a circumstance in which strict scrutiny applies, and in which we had to be concerned with the narrow tailoring of the law."  That would not be at issue in a gerrymandering case.

      Pildes's statement that "none of the harms noted above involve individual First Amendment rights in any conventional sense" seems baffling.  If a low contribution limit prevents candidates from accepting contributions sufficient for them to challenge incumbents, and donors from offering such contributions, then if you buy the "money = speech" premise (as the Court still does) how is this not implicating an individual First Amendment right?  Could something other than strict scrutiny apply?  Well, assuming not, that means narrow tailoring.

      While it's a good insight to see that this could be used as a positive precedent, I have a hard time imagining where the fifth vote would come from to actually put it to such use outside of a context where narrow tailoring is required.

      My apologies to students who took my U.S. Government class in the 90s: evidently the Constitution doesn't limit Presidential power after all. Who knew?

      by Major Danby on Mon Jun 26, 2006 at 12:01:23 PM PDT

      [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site