First Amendment Moot Court

BY TORY JACKSON

On February 28, the Supreme Court will hear oral arguments in Randall v. Sorrell, a First Amendment challenge to Vermont’s aggressive campaign finance law. Last Thursday, HLS students were treated to a preview of the case, in a moot court sponsored by the Supreme Court Advocacy Project, a joint collaboration of Dean Kagan, The Federalist Society, and the American Constitution Society.

James Bopp, General Counsel for the James Madison Center for Free Speech, who will be representing petitioners in front of the Court, presented an oral argument challenging the Vermont statute. Bopp appeared before a distinguished panel of judges: Professor Rick Pildes of NYU who is visiting at HLS this semester; Benjamin Ginsburg, National Counsel for the Bush Campaign in 2000 and 2004, and partner at Patton Boggs; Professor Frederick Schauer, a First Amendment expert at the Kennedy School; and Professor Brad Smith, former Commissioner and Chairman of the Federal Election Commission.

The case presents fundamental questions about how courts should balance First Amendment rights against the need to prevent corruption in the political process. The Vermont law includes strict limits on campaign contributions and expenditures. The expenditure limits are particularly controversial given the Court’s 1976 decision in Buckley v. Valeo, which drew a distinction between contributions and expenditures, holding the latter to a stricter standard of review.

Bopp argued that Vermont’s expenditure limits are “laughably low” and unconstitutional because they are not justified by a compelling government interest, which is necessary when the government attempts to regulate candidate speech. The statute sets expenditure limits ranging from $300,000 for gubernatorial candidates to a low of $2,000 for candidates for the state House. Vermont’s rationale for the limits-preventing corruption and relieving politicians from the need to spend all their time fundraising-are not supported by the record, according to Bopp. Indeed, he suggested that if the state was so concerned about its legislators and other officials shirking their duty in order to raise money, they should require them to “clock in” as many private employers do.

The court did not seem convinced by Bopp’s characterization of the record, as there is language in the statute regarding the necessity to prevent political corruption. The court went back and forth with Bopp on whether such a statement constituted a finding of fact and how much judicial deference was due.

A number of judges pressed Bopp on his assertion that Vermont had no compelling interest to limit expenditures, asking whether expenditures limits are ever constitutional. As the panel pointed out, the Court in Buckley held expenditure limits were subject to strict scrutiny, implying that such limits are permissible when the government interest is compelling. While not willing to say never, Bopp essentially argued such measures are per se unconstitutional as they strike at the very core of the First Amendment-political speech.

Ginsburg suggested that the low expenditure limits may have a very practical justification. Vermont is one of the cheapest media markets in the country and there is generally a lack of strong political competition in the state. Professor Schauer added that in the last thirty years incumbents have fared very well in the state, often running unopposed.

Of course, many believe expenditure limits are necessary in order to achieve the purpose of contribution limits which are allowed under Buckley. As Bopp maintained, however, both expenditure and contribution limits must have independent justifications. Professor Smith suggested courts should view the problem in a more holistic manner.

Bopp also pointed out that Vermont’s expenditure limits apply even to a candidate who spends his or her own money, even though personal financing seems to preclude any fear of corruption or excessive time spent fundraising. However, Professor Pildes noted that none of the petitioners personally financed campaigns and thus did not have standing to raise the issue. Bopp replied that the court has the power to reach this issue under First Amendment overbreadth doctrine.

In an exchange which highlighted the political nature of campaign finance regulations, Bopp suggested that Vermont’s law was passed by Democrats worried about GOP challengers. Many critics of campaign finance laws contend that they favor incumbents. When asked whether Democrats were challenging the law, Bopp jokingly replied that the Democratic Party is against the First Amendment. In a return to seriousness, he pointed out that even in incumbent-friendly Vermont, politicians get uneasy about potential challengers and often take measures to strengthen their own positions in power. Bopp argued that courts should be especially skeptical about incumbent politicians writing laws which affect their own reelection. He also pointed out an irony in the case-Vermont is asking the court to defer to the wisdom of the legislature, while also maintaining its legislators are so corrupt that its campaign finance law is justified.

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