Breyer’s Gambit

In the Supreme Court’s ruling in Randall v. Sorrell, six justices agreed that Vermont’s campaign spending and contribution limits violated the First Amendment. That majority split, however, on what made the Vermont law invalid, resulting in what was in essence a plurality ruling.  Justices Breyer, Roberts and Alito affirmed Buckley v. Valeo’s finding that spending limits violated the First Amendment. In striking down Vermont’s contribution limits, the plurality sought to break new ground.

In the past, the Supreme Court has said contribution limits should not be so low as to prevent “effective advocacy.” In fact, the “effective advocacy” standard did not constrain legislatures; the Court approved contribution limits deferring to the legislature’s “expertise” in this matter.

Vermont’s contribution limits, however, went too far, according to Justice Breyer, because they harmed “the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.”

For Breyer, the First Amendment is not a constraint on state power expressed as “Congress shall make no law.” Rather, it is a means to realize the value of democratic accountability. That value requires that challengers be able to mount effective campaigns against incumbents. The government can prevent such effective campaigning through contribution limits. Hence, Vermont’s limits must be struck down.

Of course, the Constitution does not demand that Congress advance democratic accountability. But the language of the Constitution has not constrained the Court for some time. Five members of a future Court majority might well explicitly import “democratic accountability” into the First Amendment as a way of enlarging, rather than constraining, state power.

Citing Breyer’s opinion, a future Court might require taxpayers to fund campaigns as way to enable effective challenges against incumbents, thereby increasing democratic accountability. It might also cite democratic accountability as grounds for imposing draconian restrictions on groups that have “undue influence.”

People concerned about free speech welcomed the Randall v. Sorrell decision, but the plurality sought to affirm “democratic accountability” and not the idea of limited government spelled out in the First Amendment. This is not surprising. Justice Breyer is no friend of free speech in campaign finance. That Justices Roberts and Alito signed on to his opinion cannot be a good sign for the future of free speech.