Taking Spending Limits to Court

The U.S Supreme Court’s September 27 announcement that it will review the constitutionality of mandatory campaign spending limits has some reformers wringing their hands fearing we might lose. It’s a fair concern, but progress is never won by avoiding conflicts when the public’s on our side.

Would-be reformers must remember that mandatory spending limits are far and away the most popular reform that American citizens want. The courts resist them and self-appointed experts belittle them, but the rest of us see limits as a commen-sense answer to an elections process that has been bought and paid for by wealthy interests.

The Supreme Court’s 1976 decision Buckley v. Valeo ruled that the mandatory spending limits passed by Congress in 1974 were not justified on grounds that they stopped political bribery -- the exchange of favors for campaign contributions. Buckley did uphold other important provisions that have less inherent resonance with voters, namely contribution limits and public financing of elections.

Reformers are left with two basic choices. We can dodge the public’s demand for campaign spending limits and focus on other policies that play well with political elites. Or, we can side with the people and continue to push for mandatory spending limits, perhaps offering the Court new reasons to uphold them.

By championing spending limits instead of shunning them, reformers at Vermont PIRG won the strongest campaign finance law ever enacted by a state legislature. The 1997 Vermont law included tough contribution limits and a full public financing system for gubernatorial races, so even if the spending limits piece was struck down there were solid reform policies left in place.

The Second Circuit Court of Appeals ruled in August 2004 that mandatory spending limits could be constitutional in some cases, instructing a lower court to examine if Vermont’s law could pass muster. James Bopp, a notorious anti-reform lawyer, and his clients at the Republican Party of Vermont and Vermont Right to Life appealed to the US Supreme Court. Rather than play defense while waiting years more for the courts to kick around its law, Vermont also asked the Court to review its law. TheRestofUs.org and other reform groups including Common Cause, The League of Women Voters, Public Campaign, Demos and others supported Vermont’s position with an amicus brief of our own.

It’s possible that we’ll lose. After all, why would judges appointed by the very politicians who are currently bought and paid for let reformers upset the special interest applecart? But if the Court once again refuses to allow state legislatures to take themselves off the auction block, we’ll be no worse off than we are today. Further, by clarifying that courts are part of the problem instead of part of the solution, a clearly bad ruling would rekindle efforts for a constitutional amendment that would overturn Buckley. We’ve used constitutional amendments to ban slavery, let women vote, and to abolish the poll tax; we could surely use one to make votes matter more than dollars in election outcomes.

A greater threat than losing on spending limits is that the Court could backslide on rulings that upheld low contribution limits and policies to make it harder for big donors to evade those limits. This is a real danger and some reform groups are correctly focusing briefs to the Court aimed at minimizing this threat. But at the end of the day, Vermont’s decision to appeal does not make this threat any greater. If new justices on the federal court want to dismantle our existing campaign finance laws, they will find the cases to do so in the coming years.

The best defense against a hostile judicial branch is a strong offense that plays to our strength in the public at large. As the recent death of Rosa Parks reminds us, the way to fight injustice is to rise up against it -- even if you might lose in the short run. Rather than shrinking from the thought of nine judges reviewing common-sense campaign finance law, we should embrace it.

Let’s take the Court at its word that it’s a non-political entity that will fairly examine the constitutionality of campaign spending limits in light of the past 30 years of experience. Justices need not agree with the merits of spending limits, merely that Vermont has the right to try them if it wants to. If the Court fails the test of judicial restraint, our time will be better spent taking our case to the people than playing Monday morning quarterback and blaming the people of Vermont for standing up for what they believe in.