In 1997, Vermont passed new campaign finance legislation that, among other things, drastically reduced the state’s contribution limits, in some races to as low as $200. In June of 2006, the Supreme Court struck down those limits holding that they placed too substantial a restriction on the rights of political speech and association.
Now it appears that Vermont is taking another crack at contribution limits. Knowing now that a $200 limit for state representatives is too low, the state senate has passed a bill upping the limit…to $250.
The other increased limits include:
State senate or county office: increased from $300 to $500
Lieutenant governor, secretary of state, state treasurer, auditor of accounts, or attorney general: increased from $400 to $750
Governor: increased from $400 to $1000
The $50 increase for contributions to state representative candidates is not actually as paltry as it sounds. When one lays the bill side-by-side with Justice Breyer’s plurality opinion in Randall, it’s clear that the former was crafted to address specifically the concerns in the latter. Among these concerns were:
Limits under the old law were not indexed for inflation
Identical limits applied to individuals and political parties
Limits applied per cycle rather than per election
The new bill addresses each of these. Limits are indexed to inflation, and the limits on political parties have been raised significantly. Perhaps more importantly, the new bill would allow contributors to donate up to the limit in both the primary and general elections, effectively raising the contribution limit from $200/cycle to $500/cycle.
This new bill will please the Justice Breyers of the world, but it is unlikely to please many others (certainly not the Scalias and Thomases). An interesting question, though, is what would happen had Vermont not so carefully tailored its new bill to Breyer’s plurality. What if Vermont had responded to the Supreme Court’s rebuke by re-passing the same law, but with individual contribution limits adjusted upward $50?
Some on both sides of the campaign finance debate might wish Vermont had done so. Though in our view it would be unfortunate for the citizens of Vermont in the short term, it might compel the Court to address a fundamental difficulty with contribution limits. As Justice Kennedy articulated it in his concurrence in Randall:
"On a routine, operational level the present system requires us to explain why $200 is too restrictive a limit while $1,500 is not. Our own experience gives us little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance."
Indeed, since Buckley (and in Randall itself) the Court has repeatedly pointed out that it has "no scalpel to probe" each possible contribution level with exactitude. But Vermont might have forced the Court to do precisely that, had it passed contribution limits of $250, and then $300, and then $350. Eventually, if Justice Breyer were to continue writing plurality opinions, a tipping point would have to be reached.
Perhaps the reason the Vermont Senate did not do so, however, is because they suspect (and are likely correct) that it would not be Breyer writing another plurality opinion; it would be Kennedy writing a majority opinion. Having unsuccessfully sought to overturn half of Buckley, they may be understandably reticent to put too much pressure on the half they agree with.
(HT: electionfinance.net)
