Randall v. Sorrell

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RANDALL v. SORRELL

___ U.S. ___ (June 26, 2006)

Justice BREYER announced the judgment of the Court, and delivered an opinion in which Chief Justice ROBERTS joins, and in which Justice ALITO joins except as to Parts II-B-1 and II-B-2.

We here consider the constitutionality of a Vermont campaign finance statute that limits both (1) the amounts that candidates for state office may spend on their campaigns (expenditure limitations) and (2) the amounts that individuals, organizations, and political parties may contribute to those campaigns (contribution limitations). We hold that both sets of limitations are inconsistent with the First Amendment. Well-established precedent makes clear that the expenditure limits violate the First Amendment. Buckley v. Valeo, 424 U.S. 1, 54-58 (1976)(per curiam). The contribution limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisfy the First Amendment's requirement of careful tailoring. That is to say, they impose burdens upon First Amendment interests that (when viewed in light of the statute's legitimate objectives) are disproportionately severe.

Prior to 1997, Vermont's campaign finance law imposed no limit upon the amount a candidate for state office could spend. It did, however, impose limits upon the amounts that individuals, corporations, and political committees could contribute to the campaign of such a candidate. Individuals and corporations could contribute no more than $1,000 to any candidate for state office. Political committees, excluding political parties, could contribute no more than $3,000. The statute imposed no limit on the amount that political parties could contribute to candidates.

In 1997, Vermont enacted a more stringent campaign finance law, [ Act 64], the statute at issue here. Act 64, which took effect immediately after the 1998 elections, imposes mandatory expenditure limits on the total amount a candidate for state office can spend during a "two-year general election cycle," i.e., the primary plus the general election, in approximately the following amounts: governor, $300,000; lieutenant governor, $100,000; other statewide offices, $45,000; state senator, $4,000 (plus an additional $2,500 for each additional seat in the district); state representative (two-member district), $3,000; and state representative (single member district), $2,000. These limits are adjusted for inflation in odd-numbered years based on the Consumer Price Index. Incumbents seeking reelection to statewide office may spend no more than 85% of the above amounts, and incumbents seeking reelection to the State Senate or House may spend no more than 90% of the above amounts. The Act defines "[e]xpenditure" broadly to mean the

"payment, disbursement, distribution, advance, deposit, loan or gift of money or anything of value, paid or promised to be paid, for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates."

With certain minor exceptions, expenditures over $50 made on a candidate's behalf by others count against the candidate's expenditure limit if those expenditures are "intentionally facilitated by, solicited by or approved by" the candidate's campaign. These provisions apply so as to count against a campaign's expenditure limit any spending by political parties or committees that is coordinated with the campaign and benefits the candidate. And any party expenditure that "primarily benefits six or fewer candidates who are associated with the political party" is "presumed" to be coordinated with the campaign and therefore to count against the campaign's expenditure limit.

Act 64 also imposes strict contribution limits. The amount any single individual can contribute to the campaign of a candidate for state office during a "two-year general election cycle" is limited as follows: governor, lieutenant governor, and other statewide offices, $400; state senator, $300; and state representative, $200. Unlike its expenditure limits, Act 64's contribution limits are not indexed for inflation.

A political committee is subject to these same limits. So is a political party, defined broadly to include "any subsidiary, branch or local unit" of a party, as well as any "national or regional affiliates" of a party (taken separately or together). Thus, for example, the statute treats the local, state, and national affiliates of the Democratic Party as if they were a single entity and limits their total contribution to a single candidate's campaign for governor (during the primary and the general election together) to $400.

The Act also imposes a limit of $2,000 upon the amount any individual can give to a political party during a 2-year general election cycle.

The Act defines "contribution" broadly in approximately the same way it defines "expenditure." Any expenditure made on a candidate's behalf counts as a contribution to the candidate if it is "intentionally facilitated by, solicited by or approved by" the candidate. And a party expenditure that "primarily benefits six or fewer candidates who are associated with the" party is "presumed" to count against the party's contribution limits.

There are a few exceptions. A candidate's own contributions to the campaign and those of the candidate's family fall outside the contribution limits. Volunteer services do not count as contributions. Nor does the cost of a meet-the-candidate function, provided that the total cost for the function amounts to $100 or less.

***

The petitioners are individuals who have run for state office in Vermont, citizens who vote in Vermont elections and contribute to Vermont campaigns, and political parties and committees that participate in Vermont politics. Soon after Act 64 became law, they brought this lawsuit in Federal District Court against the respondents, state officials charged with enforcement of the Act. . . . .

We turn first to the Act's expenditure limits. Do those limits violate the First Amendment's free speech guarantees?

In Buckley v. Valeo, the Court considered the constitutionality of the Federal Election Campaign Act of 1971 (FECA), a statute that, much like the Act before us, imposed both expenditure and contribution limitations on campaigns for public office. The Court, while upholding FECA's contribution limitations as constitutional, held that the statute's expenditure limitations violated the First Amendment.

Buckley stated that both kinds of limitations "implicate fundamental First Amendment interests." It noted that the Government had sought to justify the statute's infringement on those interests in terms of the need to prevent "corruption and the appearance of corruption." In the Court's view, this rationale provided sufficient justification for the statute's contribution limitations, but it did not provide sufficient justification for the expenditure limitations.

The Court explained that the basic reason for this difference between the two kinds of limitations is that expenditure limitations "impose significantly more severe restrictions on protected freedoms of political expression and association than" do contribution limitations. Contribution limitations, though a "marginal restriction upon the contributor's ability to engage in free communication," nevertheless leave the contributor "fre[e] to discuss candidates and issues." Expenditure limitations, by contrast, impose "[a] restriction on the amount of money a person or group can spend on political communication during a campaign." They thereby necessarily "reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Indeed, the freedom "to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline."

The Court concluded that "[n]o governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by" the statute's expenditure limitations. It decided that the Government's primary justification for expenditure limitations, preventing corruption and its appearance, was adequately addressed by the Act's contribution limitations and disclosure requirements. The Court also considered other governmental interests advanced in support of expenditure limitations. It rejected each. Consequently, it held that the expenditure limitations were "constitutionally invalid."

Over the last 30 years, in considering the constitutionality of a host of different campaign finance statutes, this Court has repeatedly adhered to Buckley's constraints, including those on expenditure limits. [See, e.g.,] McConnell v. Federal Election Comm'n, 540 U.S. 93, 134 (2003); Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 441 (2001) (Colorado II);Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 386 (2000)(Shrink).

The respondents recognize that, in respect to expenditure limits, Buckley appears to be a controlling–and unfavorable–precedent. They seek to overcome that precedent in two ways. First, they ask us in effect to overrule Buckley. Post-Buckley experience, they believe, has shown that contribution limits (and disclosure requirements) alone cannot effectively deter corruption or its appearance; hence experience has undermined an assumption underlying that case. Indeed, the respondents have devoted several pages of their briefs to attacking Buckley's holding on expenditure limits.

Second, in the alternative, they ask us to limit the scope of Buckley significantly by distinguishing Buckley from the present case. They advance as a ground for distinction a justification for expenditure limitations that, they say, Buckley did not consider, namely that such limits help to protect candidates from spending too much time raising money rather than devoting that time to campaigning among ordinary voters. We find neither argument persuasive.

* * *

[In B.1 and B.2, Justice Breyer and Chief Justice Roberts decline to overrule Buckley, or to revisit its decision that expenditure limits are not necessary to protect candidates from spending too much time fundraising.]

III

We turn now to a more complex question, namely the constitutionality of Act 64's contribution limits. The parties, while accepting Buckley's approach, dispute whether, despite Buckley's general approval of statutes that limit campaign contributions, Act 64's contribution limits are so severe that in the circumstances its particular limits violate the First Amendment.

As with the Act's expenditure limits, we begin with Buckley. In that case, the Court upheld the $1,000 contribution limit before it. Buckley recognized that contribution limits, like expenditure limits, "implicate fundamental First Amendment interests," namely, the freedoms of "political expression" and "political association." But, unlike expenditure limits (which "necessarily reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached," contribution limits "involv[e] little direct restraint on" the contributor's speech, They do restrict "one aspect of the contributor's freedom of political association," namely, the contributor's ability to support a favored candidate, but they nonetheless "permi[t] the symbolic expression of support evidenced by a contribution," and they do "not in any way infringe the contributor's freedom to discuss candidates and issues."

Consequently, the Court wrote, contribution limitations are permissible as long as the Government demonstrates that the limits are "closely drawn" to match a "sufficiently important interest." It found that the interest advanced in the case, "prevent[ing] corruption" and its "appearance," was "sufficiently important" to justify the statute's contribution limits.

The Court also found that the contribution limits before it were "closely drawn." It recognized that, in determining whether a particular contribution limit was "closely drawn," the amount, or level, of that limit could make a difference. Indeed, it wrote that "contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy." But the Court added that such "distinctions in degree become significant only when they can be said to amount to differences in kind." Pointing out that it had "no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000," the Court found "no indication" that the $1,000 contribution limitations imposed by the Act would have "any dramatic adverse effect on the funding of campaigns." It therefore found the limitations constitutional.

Since Buckley, the Court has consistently upheld contribution limits in other statutes. The Court has recognized, however, that contribution limits might sometimes work more harm to protected First Amendment interests than their anticorruption objectives could justify. And individual Members of the Court have expressed concern lest too low a limit magnify the "reputation-related or media-related advantages of incumbency and thereby insulat[e] legislators from effective electoral challenge." In the cases before us, the petitioners challenge Act 64's contribution limits on that basis.

Following Buckley, we must determine whether Act 64's contribution limits prevent candidates from "amassing the resources necessary for effective [campaign] advocacy," whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to survive First Amendment scrutiny. In answering these questions, we recognize, as Buckley stated, that we have "no scalpel to probe" each possible contribution level. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute's legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have "particular expertise" in matters related to the costs and nature of running for office. McConnell, 540 U.S. at 137. Thus ordinarily we have deferred to the legislature's determination of such matters.

Nonetheless, as Buckley acknowledged, we must recognize the existence of some lower bound. At some point the constitutional risks to the democratic electoral process become too great. After all, the interests underlying contribution limits, preventing corruption and the appearance of corruption, "directly implicate the integrity of our electoral process." McConnell, 540 U.S. at 136 . Yet that rationale does not simply mean "the lower the limit, the better." That is because contribution limits that are too low can also harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability. Were we to ignore that fact, a statute that seeks to regulate campaign contributions could itself prove an obstacle to the very electoral fairness it seeks to promote. Thus, we see no alternative to the exercise of independent judicial judgment as a statute reaches those outer limits. And, where there is strong indication in a particular case, i.e., danger signs, that such risks exist (both present in kind and likely serious in degree), courts, including appellate courts, must review the record independently and carefully with an eye toward assessing the statute's "tailoring," that is, toward assessing the proportionality of the restrictions.

We find those danger signs present here. As compared with the contribution limits upheld by the Court in the past, and with those in force in other States, Act 64’s limits are sufficiently low as to generate suspicion that they are not closely drawn. The Act sets its limits per election cycle, which includes both a primary and a general election. Thus, in a gubernatorial race with both primary and final election contests, the Act's contribution limit amounts to $200 per election per candidate (with significantly lower limits for contributions to candidates for State Senate and House of Representatives). These limits apply both to contributions from individuals and to contributions from political parties, whether made in cash or in expenditures coordinated (or presumed to be coordinated) with the candidate.

These limits are well below the limits this Court upheld in Buckley . Indeed, in terms of real dollars (i.e., adjusting for inflation), the Act's $200 per election limit on individual contributions to a campaign for governor is slightly more than one-twentieth of the limit on contributions to campaigns for federal office before the Court in Buckley . Adjusted to reflect its value in 1976 (the year Buckley was decided), Vermont's contribution limit on campaigns for statewide office (including governor) amounts to $113.91 per 2-year election cycle, or roughly $57 per election, as compared to the $1,000 per election limit on individual contributions at issue in Buckley . (The adjusted value of Act 64's limit on contributions from political parties to candidates for statewide office, again $200 per candidate per election, is just over one one-hundredth of the comparable limit before the Court in Buckley, $5,000 per election.) Yet Vermont's gubernatorial district–the entire State–is no smaller than the House districts to which Buckley's limits applied. In 1976, the average congressional district contained a population of about 465,000. Indeed, Vermont's population is 621,000–about one-third larger.

Moreover, considered as a whole, Vermont's contribution limits are the lowest in the Nation. Act 64 limits contributions to candidates for statewide office (including governor) to $200 per candidate per election. We have found no State that imposes a lower per election limit. Indeed, we have found only seven States that impose limits on contributions to candidates for statewide office at or below $500 per election, more than twice Act 64's limit. We are aware of no State that imposes a limit on contributions from political parties to candidates for statewide office lower than Act 64's $200 per candidate per election limit. Similarly, we have found only three States that have limits on contributions to candidates for state legislature below Act 64's $150 and $100 per election limits. And we are aware of no State that has a lower limit on contributions from political parties to state legislative candidates.

Finally, Vermont's limit is well below the lowest limit this Court has previously upheld, the limit of $1,075 per election for candidates for Missouri state auditor. Shrink, 528 U.S. 377. The comparable Vermont limit of roughly $200 per election, not adjusted for inflation, is less than one-sixth of Missouri's current inflation-adjusted limit ($1,275).

We recognize that Vermont's population is much smaller than Missouri's. Indeed, Vermont is about one-ninth of the size of Missouri. Thus, per citizen, Vermont's limit is slightly more generous. As of 2006, the ratio of the contribution limit to the size of the constituency in Vermont is .00064, while Missouri's ratio is .00044, 31% lower.

But this does not necessarily mean that Vermont's limits are less objectionable than the limit upheld in Shrink . A campaign for state auditor is likely to be less costly than a campaign for governor; campaign costs do not automatically increase or decrease in precise proportion to the size of an electoral district. Moreover, Vermont's limits, unlike Missouri's limits, apply in the same amounts to contributions made by political parties. And, as we have said, Missouri's (current) $1,275 per election limit, unlike Vermont's $200 per election limit, is indexed for inflation.

The factors we have mentioned offset any neutralizing force of population differences. At the very least, they make it difficult to treat Shrink's (then) $1,075 limit as providing affirmative support for the lawfulness of Vermont's far lower levels. And even were that not so, Vermont's failure to index for inflation means that Vermont's levels would soon be far lower than Missouri's regardless of the method of comparison.

In sum, Act 64's contribution limits are substantially lower than both the limits we have previously upheld and comparable limits in other States. These are danger signs that Act 64's contribution limits may fall outside tolerable First Amendment limits. We consequently must examine the record independently and carefully to determine whether Act 64's contribution limits are "closely drawn" to match the State's interests.

Our examination of the record convinces us that, from a constitutional perspective, Act 64's contribution limits are too restrictive. We reach this conclusion based not merely on the low dollar amounts of the limits themselves, but also on the statute's effect on political parties and on volunteer activity in Vermont elections. Taken together, Act 64's substantial restrictions on the ability of candidates to raise the funds necessary to run a competitive election, on the ability of political parties to help their candidates get elected, and on the ability of individual citizens to volunteer their time to campaigns show that the Act is not closely drawn to meet its objectives. In particular, five factors together lead us to this decision.

First, the record suggests, though it does not conclusively prove, that Act 64's contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns. For one thing, the petitioners' expert, Clark Bensen, conducted a race-by-race analysis of the 1998 legislative elections (the last to take place before Act 64 took effect) and concluded that Act 64's contribution limits would have reduced the funds available in 1998 to Republican challengers in competitive races in amounts ranging from 18% to 53% of their total campaign income.

For another thing, the petitioners' expert witnesses produced evidence and analysis showing that Vermont political parties (particularly the Republican Party) "target" their contributions to candidates in competitive races, that those contributions represent a significant amount of total candidate funding in such races, and that the contribution limits will cut the parties' contributions to competitive races dramatically. Their statistics showed that the party contributions accounted for a significant percentage of the total campaign income in those races. And their studies showed that Act 64's contribution limits would cut the party contributions by between 85% (for the legislature on average) and 99% (for governor).

More specifically, Bensen pointed out that in 1998, the Republican Party made contributions to 19 Senate campaigns in amounts that averaged $2,001, which on average represented 16% of the recipient campaign's total income. Act 64 would reduce these contributions to $300 per campaign, an average reduction of about 85%. The party contributed to 50 House campaigns in amounts averaging $787, which on average represented 28% of the recipient campaign's total income. Act 64 would reduce these contributions to $200 per campaign, an average reduction of 74.5%. And the party contributed $40,600 to its gubernatorial candidate, an amount that accounted for about 16% of the candidate's funding. The Act would have reduced that contribution by 99%, to $400.

Bensen added that 57% of all 1998 Senate campaigns and 30% of all House campaigns exceeded Act 64's expenditure limits, which were enacted along with the statute's contribution limits. Moreover, 27% of all Senate campaigns and 10% of all House campaigns spent more than double those limits.

The respondents did not contest these figures. Rather, they presented evidence that focused, not upon strongly contested campaigns, but upon the funding amounts available for the average campaign. The respondents' expert, Anthony Gierzynski, concluded, for example, that Act 64 would have a "minimal effect on . . . candidates' ability to raise funds." But he rested this conclusion upon his finding that "only a small proportion of" all contributions to all campaigns for state office "made during the last three elections would have been affected by the new limits." . . . .

The respondents' evidence leaves the petitioners' evidence unrebutted in certain key respects. That is because the critical question concerns not simply the average effect of contribution limits on fundraising but, more importantly, the ability of a candidate running against an incumbent officeholder to mount an effective challenge. And information about average races, rather than competitive races, is only distantly related to that question, because competitive races are likely to be far more expensive than the average race. We concede that the record does contain some anecdotal evidence supporting the respondents' position, namely, testimony about a post-Act-64 competitive mayoral campaign in Burlington, which suggests that a challenger can "amas[s] the resources necessary for effective advocacy." But the facts of that particular election are not described in sufficient detail to offer a convincing refutation of the implication arising from the petitioners' experts' studies.

Rather, the petitioners' studies, taken together with low average Vermont campaign expenditures and the typically higher costs that a challenger must bear to overcome the name-recognition advantage enjoyed by an incumbent, raise a reasonable inference that the contribution limits are so low that they may pose a significant obstacle to candidates in competitive elections. Information about average races does not rebut that inference. Consequently, the inference amounts to one factor (among others) that here counts against the constitutional validity of the contribution limits.

Second, Act 64's insistence that political parties abide by exactly the same low contribution limits that apply to other contributors threatens harm to a particularly important political right, the right to associate in a political party.

The Act applies its $200 to $400 limits–precisely the same limits it applies to an individual–to virtually all affiliates of a political party taken together as if they were a single contributor. That means, for example, that the Vermont Democratic Party, taken together with all its local affiliates, can make one contribution of at most $400 to the Democratic gubernatorial candidate, one contribution of at most $300 to a Democratic candidate for State Senate, and one contribution of at most $200 to a Democratic candidate for the State House of Representatives. The Act includes within these limits not only direct monetary contributions but also expenditures in kind: stamps, stationery, coffee, doughnuts, gasoline, campaign buttons, and so forth. Indeed, it includes all party expenditures "intended to promote the election of a specific candidate or group of candidates" as long as the candidate's campaign "facilitate[s]," "solicit[s]," or "approve[s]" them. And a party expenditure that "primarily benefits six or fewer candidates who are associated with the" party is "presumed" to count against the party's contribution limits.

In addition to the negative effect on "amassing funds" that we have described, the Act would severely limit the ability of a party to assist its candidates' campaigns by engaging in coordinated spending on advertising, candidate events, voter lists, mass mailings, even yard signs. And, to an unusual degree, it would discourage those who wish to contribute small amounts of money to a party, amounts that easily comply with individual contribution limits. Suppose that many individuals do not know Vermont legislative candidates personally, but wish to contribute, say, $20 or $40, to the State Republican Party, with the intent that the party use the money to help elect whichever candidates the party believes would best advance its ideals and interests–the basic object of a political party. Or, to take a more extreme example, imagine that 6,000 Vermont citizens each want to give $1 to the State Democratic Party because, though unfamiliar with the details of the individual races, they would like to make a small financial contribution to the goal of electing a Democratic state legislature. And further imagine that the party believes control of the legislature will depend on the outcome of three (and only three) House races. The Act forbids the party from giving $2,000 (of the $6,000) to each of its candidates in those pivotal races. Indeed, it permits the party to give no more than $200 to each candidate, thereby thwarting the aims of the 6,000 donors from making a meaningful contribution to state politics by giving a small amount of money to the party they support. Thus, the Act would severely inhibit collective political activity by preventing a political party from using contributions by small donors to provide meaningful assistance to any individual candidate.

We recognize that we have previously upheld limits on contributions from political parties to candidates, in particular the federal limits on coordinated party spending. Colorado II, 533 U.S. 431. And we also recognize that any such limit will negatively affect to some extent the fund-allocating party function just described. But the contribution limits at issue in Colorado II were far less problematic, for they were significantly higher than Act 64's limits. See id., at 438-439, and n. 3, 442, n. 7 (at least $67,560 in coordinated spending and $5,000 in direct cash contributions for U.S. Senate candidates, at least $33,780 in coordinated spending and $5,000 in direct cash contributions for U.S. House candidates). And they were much higher than the federal limits on contributions from individuals to candidates, thereby reflecting an effort by Congress to balance (1) the need to allow individuals to participate in the political process by contributing to political parties that help elect candidates with (2) the need to prevent the use of political parties "to circumvent contribution limits that apply to individuals." Act 64, by placing identical limits upon contributions to candidates, whether made by an individual or by a political party, gives to the former consideration no weight at all.

We consequently agree with the District Court that the Act's contribution limits "would reduce the voice of political parties" in Vermont to a "whisper." And we count the special party-related harms that Act 64 threatens as a further factor weighing against the constitutional validity of the contribution limits.

Third, the Act's treatment of volunteer services aggravates the problem. Like its federal statutory counterpart, the Act excludes from its definition of "contribution" all "services provided without compensation by individuals volunteering their time on behalf of a candidate." But the Act does not exclude the expenses those volunteers incur, such as travel expenses, in the course of campaign activities. The Act's broad definitions would seem to count those expenses against the volunteer's contribution limit, at least where the spending was facilitated or approved by campaign officials. And, unlike the Federal Government's treatment of comparable requirements, the State has not (insofar as we are aware) created an exception excluding such expenses.

The absence of some such exception may matter in the present context, where contribution limits are very low. That combination, low limits and no exceptions, means that a gubernatorial campaign volunteer who makes four or five round trips driving across the State performing volunteer activities coordinated with the campaign can find that he or she is near, or has surpassed, the contribution limit. So too will a volunteer who offers a campaign the use of her house along with coffee and doughnuts for a few dozen neighbors to meet the candidate, say, two or three times during a campaign. Such supporters will have to keep careful track of all miles driven, postage supplied (500 stamps equals $200), pencils and pads used, and so forth. And any carelessness in this respect can prove costly, perhaps generating a headline, "Campaign laws violated," that works serious harm to the candidate.

These sorts of problems are unlikely to affect the constitutionality of a limit that is reasonably high. But Act 64's contribution limits are so low, and its definition of "contribution" so broad, that the Act may well impede a campaign's ability effectively to use volunteers, thereby making it more difficult for individuals to associate in this way. Again, the very low limits at issue help to transform differences in degree into difference in kind. And the likelihood of unjustified interference in the present context is sufficiently great that we must consider the lack of tailoring in the Act's definition of "contribution" as an added factor counting against the constitutional validity of the contribution limits before us.

Fourth, unlike the contribution limits we upheld in Shrink , Act 64's contribution limits are not adjusted for inflation. Its limits decline in real value each year. Indeed, in real dollars the Act's limits have already declined by about 20% ($200 in 2006 dollars has a real value of $160.66 in 1997 dollars). A failure to index limits means that limits which are already suspiciously low, will almost inevitably become too low over time. It means that future legislation will be necessary to stop that almost inevitable decline, and it thereby imposes the burden of preventing the decline upon incumbent legislators who may not diligently police the need for changes in limit levels to assure the adequate financing of electoral challenges.

Fifth, we have found nowhere in the record any special justification that might warrant a contribution limit so low or so restrictive as to bring about the serious associational and expressive problems that we have described. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. The record contains no indication that, for example, corruption (or its appearance) in Vermont is significantly more serious a matter than elsewhere. Indeed, other things being equal, one might reasonably believe that a contribution of say, $250 (or $450) to a candidate's campaign was less likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases we have considered.

These five sets of considerations, taken together, lead us to conclude that Act 64's contribution limits are not narrowly tailored. Rather, the Act burdens First Amendment interests by threatening to inhibit effective advocacy by those who seek election, particularly challengers; its contribution limits mute the voice of political parties; they hamper participation in campaigns through volunteer activities; and they are not indexed for inflation. Vermont does not point to a legitimate statutory objective that might justify these special burdens. We understand that many, though not all, campaign finance regulations impose certain of these burdens to some degree. We also understand the legitimate need for constitutional leeway in respect to legislative line-drawing. But our discussion indicates why we conclude that Act 64 in this respect nonetheless goes too far. It disproportionately burdens numerous First Amendment interests, and consequently, in our view, violates the First Amendment.

We add that we do not believe it possible to sever some of the Act's contribution limit provisions from others that might remain fully operative. To sever provisions to avoid constitutional objection here would require us to write words into the statute (inflation indexing), or to leave gaping loopholes (no limits on party contributions), or to foresee which of many different possible ways the legislature might respond to the constitutional objections we have found. Given these difficulties, we believe the Vermont Legislature would have intended us to set aside the statute's contribution limits, leaving the legislature free to rewrite those provisions in light of the constitutional difficulties we have identified.

We conclude that Act 64's expenditure limits violate the First Amendment as interpreted in Buckley v. Valeo . We also conclude that the specific details of Act 64's contribution limits require us to hold that those limits violate the First Amendment, for they burden First Amendment interests in a manner that is disproportionate to the public purposes they were enacted to advance. . . . .

It is so ordered.

The opinion of Justice ALITO , concurring in part and concurring in the judgment, is omitted.

Justice KENNEDY , concurring in the judgment.

***

The universe of campaign finance regulation is one this Court has in part created and in part permitted by its course of decisions. That new order may cause more problems than it solves. 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. On a broader, systemic level political parties have been denied basic First Amendment rights. See, e.g.,McConnell v. Federal Election Comm'n, 540 U.S. 93, 286-287, 313 (2003) (KENNEDY, J ., concurring in judgment in part and dissenting in part). Entering to fill the void have been new entities such as political action committees, which are as much the creatures of law as of traditional forces of speech and association. Those entities can manipulate the system and attract their own elite power brokers, who operate in ways obscure to the ordinary citizen.

Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment.

Justice THOMAS, with whom Justice SCALIA joins, concurring in the judgment.

Although I agree with the plurality that [ Act 64] is unconstitutional, I disagree with its rationale for striking down that statute. Invoking stare decisis, the plurality rejects the invitation to overrule Buckley v. Valeo. It then applies Buckley to invalidate the expenditure limitations and, less persuasively, the contribution limitations. I continue to believe that Buckley provides insufficient protection to political speech, the core of the First Amendment. The illegitimacy of Buckley is further underscored by the continuing inability of the Court (and the plurality here) to apply Buckley in a coherent and principled fashion. As a result, stare decisis should pose no bar to overruling Buckley and replacing it with a standard faithful to the First Amendment. Accordingly, I concur only in the judgment.

I adhere to my view that this Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights. "[U]nlike the Buckley Court, I believe that contribution limits infringe as directly and as seriously upon freedom of political expression and association as do expenditure limits." The Buckley Court distinguished contributions from expenditures based on the presence of an intermediary between a contributor and the speech eventually produced. But that reliance is misguided, given that "[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender's message." Likewise, Buckley's suggestion that contribution caps only marginally restrict speech, because "[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support," even if descriptively accurate, does not support restrictions on contributions. After all, statements of general support are as deserving of constitutional protection as those that communicate specific reasons for that support. Accordingly, I would overrule Buckley and subject both the contribution and expenditure restrictions of Act 64 to strict scrutiny, which they would fail.

The plurality opinion, far from making the case for Buckley as a rule of law, itself demonstrates that Buckley's limited scrutiny of contribution limits is "insusceptible of principled application," and accordingly is not entitled to stare decisis effect. Today's newly minted, multifactor test, particularly when read in combination with the Court's decision in Shrink, places this Court in the position of addressing the propriety of regulations of political speech based upon little more than its impression of the appropriate limits.

The plurality sets forth what appears to be a two-step process for evaluating the validity of contribution limits: First, determine whether there are "danger signs" in a particular case that the limits are too low; and, second, use "independent judicial judgment" to "review the record independently and carefully with an eye towards assessing the statute's 'tailoring,' that is, towards assessing the proportionality of the restrictions." Neither step of this test can be reduced to a workable inquiry to be performed by States attempting to comply with this Court's jurisprudence.

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For these reasons, I concur only in the judgment.

Justice STEVENS, dissenting.

Justice BREYER and Justice SOUTER debate whether the per curiam decision in Buckley v. Valeo forecloses any constitutional limitations on candidate expenditures. This is plainly an issue on which reasonable minds can disagree. The Buckley Court never explicitly addressed whether the pernicious effects of endless fundraising can serve as a compelling state interest that justifies expenditure limits, yet its silence, in light of the record before it, suggests that it implicitly treated this proposed interest insufficient. Assuming this to be true, however, I am convinced that Buckley's holding on expenditure limits is wrong, and that the time has come to overrule it.

I have not reached this conclusion lightly. As Justice BREYER correctly observes, stare decisis is a principle of "fundamental importance." But it is not an inexorable command, and several factors, taken together, provide special justification for revisiting the constitutionality of statutory limits on candidate expenditures.

To begin with, Buckley's holding on expenditure limits itself upset a long-established practice. For the preceding 65 years, congressional races had been subject to statutory limits on both expenditures and contributions. . . . [O]ur earlier jurisprudence provided solid support for treating these limits as permissible regulations of conduct rather than speech. While Buckley's holding on contribution limits was consistent with this backdrop, its holding on expenditure limits "involve[d] collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience."

There are further reasons for reexamining Buckley's holding on candidate expenditure limits that do not apply to its holding on candidate contribution limits. Although we have subsequently reiterated the line Buckley drew between these two types of limits, we have done so primarily in cases affirming the validity of contribution limits or their functional equivalents. In contrast, these are our first post-Buckley cases that raise the constitutionality of expenditure limits on the amounts that candidates for office may spend on their own campaigns.

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Perhaps in partial recognition of these points, Justice White refused to abandon his opposition to Buckley's holding on expenditure limits. He believed Buckley deeply wrong on this issue because it confused "the identification of speech with its antecedents." Over the course of his steadfast campaign, he converted at least one other Buckley participant to this position, and his reasoning has since persuaded me–the nonparticipating Member of the Buckley Court–as well.

As Justice White recognized, it is quite wrong to equate money and speech. To the contrary,

"The burden on actual speech imposed by limitations on the spending of money is minimal and indirect. All rights of direct political expression and advocacy are retained. Even under the campaign laws as originally enacted, everyone was free to spend as much as they chose to amplify their views on general political issues, just not specific candidates. The restrictions, to the extent they do affect speech, are viewpoint-neutral and indicate no hostility to the speech itself or its effects."

Accordingly, these limits on expenditures are far more akin to time, place, and manner restrictions than to restrictions on the content of speech. Like Justice White, I would uphold them "so long as the purposes they serve are legitimate and sufficiently substantial.”

Buckley's conclusion to the contrary relied on the following oft-quoted metaphor:

“Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline."

But, of course, while a car cannot run without fuel, a candidate can speak without spending money. And while a car can only travel so many miles per gallon, there is no limit on the number of speeches or interviews a candidate may give on a limited budget. Moreover, provided that this budget is above a certain threshold, a candidate can exercise due care to ensure that her message reaches all voters. Just as a driver need not use a Hummer to reach her destination, so a candidate need not flood the airways with ceaseless sound-bites of trivial information in order to provide voters with reasons to support her.

Indeed, the examples of effective speech in the political arena that did not depend on any significant expenditure by the campaigner are legion. It was the content of William Jennings Bryan's comments on the "Cross of Gold"–and William McKinley's responses delivered from his front porch in Canton, Ohio–rather than any expenditure of money that appealed to their cost-free audiences. Neither Abraham Lincoln nor John F. Kennedy paid for the opportunity to engage in the debates with Stephen Douglas and Richard Nixon that may well have determined the outcomes of Presidential elections. When the seasoned campaigners who were Members of the Congress that endorsed the expenditure limits in the Federal Election Campaign Act Amendments of 1974 concluded that a modest budget would not preclude them from effectively communicating with the electorate, they necessarily rejected the Buckley metaphor .

These campaigners also identified significant government interests favoring the imposition of expenditure limits. Not only do these limits serve as an important complement to corruption-reducing contribution limits, but they also "protect equal access to the political arena, [and] free candidates and their staffs from the interminable burden of fundraising." These last two interests are particularly acute. When campaign costs are so high that only the rich have the reach to throw their hats into the ring, we fail "to protect the political process from undue influence of large aggregations of capital and to promote individual responsibility for democratic government." States have recognized this problem, but Buckley's perceived ban on expenditure limits severely limits their options in dealing with it.

The interest in freeing candidates from the fundraising straitjacket is even more compelling. Without expenditure limits, fundraising devours the time and attention of political leaders, leaving them too busy to handle their public responsibilities effectively. That fact was well recognized by backers of the legislation reviewed in Buckley, by the Court of Appeals judges who voted to uphold the expenditure limitations in that statute, and by Justice White--who not incidentally had personal experience as an active participant in a Presidential campaign. The validity of their judgment has surely been confirmed by the mountains of evidence that has been accumulated in recent years concerning the time that elected officials spend raising money for future campaigns and the adverse effect of fundraising on the performance of their official duties.

Additionally, there is no convincing evidence that these important interests favoring expenditure limits are fronts for incumbency protection. Buckley's cursory suggestion to the contrary, failed to take into account the mixed evidence before it on this issue. And only by "permit[ting] States nationwide to experiment with these critically needed reforms,"–as 18 States urge us to do–will we enable further research on how expenditure limits relate to our incumbent reelection rates. In the meantime, a legislative judgment that "enough is enough" should command the greatest possible deference from judges interpreting a constitutional provision that, at best, has an indirect relationship to activity that affects the quantity–rather than the quality or the content–of repetitive speech in the marketplace of ideas.

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For the foregoing reasons, I agree with Justice SOUTER that it would be entirely appropriate to allow further proceedings on expenditure limits to go forward in these cases. For the reasons given in Parts II and III of his dissent, I also agree that Vermont's contribution limits and presumption of coordinated expenditures by political parties are constitutional, and so join those portions of his opinion.

Justice SOUTER, with whom Justice GINSBURG joins, and with whom Justice STEVENS joins as to Parts II and III, dissenting.

In 1997, the Legislature of Vermont passed Act 64 after a series of public hearings persuaded legislators that rehabilitating the State's political process required campaign finance reform. A majority of the Court today decides that the expenditure and contribution limits enacted are irreconcilable with the Constitution's guarantee of free speech. I would adhere to the Court of Appeals's decision to remand for further enquiry bearing on the limitations on candidates' expenditures, and I think the contribution limits satisfy controlling precedent. I respectfully dissent.

Rejecting Act 64's expenditure limits as directly contravening Buckley v. Valeo is at least premature.

We said in Buckley that "expenditure limitations impose far greater restraints on the freedom of speech and association than do . . . contribution limitations," but the Buckley Court did not categorically foreclose the possibility that some spending limit might comport with the First Amendment. Instead, Buckley held that the constitutionality of an expenditure limitation "turns on whether the governmental interests advanced in its support satisfy the [applicable] exacting scrutiny." In applying that standard in Buckley itself, the Court gave no indication that it had given serious consideration to an aim that Vermont's statute now pursues: to alleviate the drain on candidates' and officials' time caused by the endless fundraising necessary to aggregate many small contributions to meet the opportunities for ever more expensive campaigning. Instead, we dwelt on rejecting the sufficiency of interests in reducing corruption, equalizing the financial resources of candidates, and capping the overall cost of political campaigns. Although Justice White went a step further in dissenting from the Court on expenditures, and made something of the interest in getting officials off the "treadmill" driven by the "obsession with fundraising," this lurking issue was not treated as significant on the expenditure question in the per curiam opinion. Whatever the observations made to the Buckley Court about the effect of fundraising on candidates' time, the Court did not squarely address a time-protection interest as support for the expenditure limits, much less one buttressed by as thorough a record as we have here.

Vermont's argument therefore does not ask us to overrule Buckley; it asks us to apply Buckley's framework to determine whether its evidence here on a need to slow the fundraising treadmill suffices to support the enacted limitations. Vermont's claim is serious. Three decades of experience since Buckley have taught us much, and the findings made by the Vermont Legislature on the pernicious effect of the nonstop pursuit of money are significant. . . . .

The legislature's findings are surely significant enough to justify the Court of Appeals's remand to the District Court to decide whether Vermont's spending limits are the least restrictive means of accomplishing what the court unexceptionably found to be worthy objectives. . . . . This is not the record on which to foreclose the ability of a State to remedy the impact of the money chase on the democratic process. I would not, therefore, disturb the Court of Appeals's stated intention to remand.

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Because I would not pass upon the constitutionality of Vermont's expenditure limits prior to further enquiry into their fit with the problem of fundraising demands on candidates, and because I do not see the contribution limits as depressed to the level of political inaudibility, I respectfully dissent.

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