Roll Call
October 4, 1999
Contribution Limit Heads to Court
By Deborah Goldberg
On Tuesday, the Supreme Court will hear arguments on a case that – for better or worse – could decide the fate of campaign finance reform in this country. The case, Nixon v. Shrink Missouri Government PAC, involves a First Amendment challenge to Missouri’s $1,075 limit on campaign contributions.
A federal appeals court struck down that limit even though $1,075 is higher than the federal limit on individual contributions to candidates ($1,000), which the Supreme Court upheld 23 years ago in the landmark case Buckley v. Valeo. This is the first time since Buckley that the Court has considered the constitutionality of individual contribution limits.
We cannot know, of course, precisely what the Supreme Court will do. What we do know is that the Court has never questioned Buckley’s analysis of contribution limits. And nothing about the Missouri law gives the Court reason to do so now.
The two basic principles that should guide the decision in the Missouri case come straight out of Buckley. First, Buckley determined that a $1,000 limit did not impose a severe burden on First Amendment rights when candidates could raise sufficient funds for effective advocacy. Second, the Buckley Court recognized that large monetary contributions to candidates inherently carry the potential for undue influence and that the government’s interests in guarding against the reality and appearance of corruption were sufficient to justify the $1,000 contribution limit.
When Missouri’s contribution limit was in force, candidates generally raised as much money as they did in the unregulated system – and sometimes more. So there is no reason to believe that Missouri’s $1,075 limit will affect candidates’ First Amendment rights any more than the $1,000 limit has in the federal system (where candidates raise millions, and tens of millions, in a matter of months).
In addition, contributors could give unlimited amounts to candidates before Missouri enacted its contribution cap, and candidates in fact accepted huge contributions. The state should therefore be entitled to adopt a $1,075 contribution limit as a means of reducing opportunities for, and the appearance of, corruption in Missouri.
Under these circumstances, one might expect Nixon v. Shrink Missouri Government PAC to be an easy case. The Supreme Court could simply apply Buckley’s long-standing legal analysis to the circumstances in Missouri and uphold the $1,075 limit.
On the other hand, the Court could use this case as an opportunity to rewrite the law of campaign financing. Sen. Mitch McConnell (R-Ky), who filed a friend-of-the-court brief, is asking the Court to overturn Buckley and declare all contribution limits unconstitutional because they are allegedly ineffective as a means to restore public confidence in government.
The argument is absurd, of course. McConnell might just as well argue for the end of environmental protection because we have not completely eradicated pollution. Moreover, we have no way of knowing how much worse public cynicism would be if contribution limits had never been enacted. And confidence in the integrity of government might well have improved if we were not operating with a gaping soft money loophole, which McConnell is defending with all his might.
But what is most interesting about McConnell’s argument is its request that the Supreme Court reach so far beyond the question presented for review. Even the challengers of the Missouri law do not suggest that it is necessary or even appropriate to overrule Buckley on the record of this case. Apparently, the conservative value of judicial restraint goes out the window when it no longer serves the fight against campaign finance reform.
The Supreme Court, of course, is not so cavalier about longstanding precedent. Only one Justice (Clarence Thomas) has ever suggested that Buckley should be overturned in the way McConnell suggests. On the other hand, two Justices (John Paul Stevens and Ruth Bader Ginsburg) have suggested revisiting Buckley to permit more regulation of campaign financing.
Whatever the ultimate outcome in the Missouri case, the Supreme Court’s opinion will be of enormous importance. Both supporters and opponents of campaign finance reform will be listening closely to argument today, and to the questions from the justices, for hints of the Court’s inclination. The decision could solidify and clarify the constitutional underpinnings for reform – or reverse course and make it very much more difficult to control the influence of money on politics. Stay tuned.
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ABOUT THE AUTHOR
Deborah Goldberg is the Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.