American Bar Association
Forum on Communications Law
Decision in Shrink Missouri by PAUL M. SMITH, DEANNE E. MAYNARD, AND BRUCE J. ENNIS, JR.
On January 24, 2000, the U.S. Supreme Court issued its latest decision regarding the First Amendment's limitations on efforts to reform this country's campaign finance structure in Nixon v. Shrink Missouri Government PAC.1 Although amici on both sides of the issue encouraged the Court to reexamine its decision in Buckley v. Valeo,2 particularly the standard of review that should be applied to campaign finance reforms, the majority opinion declined to do so. Instead, it upheld Missouri's statute using the amorphous First Amendment analysis that appears in Buckley . But the several concurring and dissenting opinions are worthy of note: five Justices indicated a willingness to reconsider Buckley , and three of them would have done so in this case.
This case involved a Missouri statute that imposes contribution limits that range from $250 to $1,000, depending on the state office or the size of the constituency involved. The provision challenged in the U.S. Supreme Court restricted contributions for a statewide election to $1,000 per person (other than the candidate).3 The statute contained an adjustment for inflation; consequently, the contribution limit for a statewide office was $1,075 when respondents Shrink Missouri Government PAC and Zev David Fredman filed suit seeking to enjoin enforcement of the statute as a violation of the First and Fourteenth Amendments. Shrink Missouri wanted to donate more than $1,075 to Fredman, a candidate for the 1998 Republican nomination for state auditor. Fredman alleged that he could not effectively campaign due to the contribution limits set by the law.
The district court upheld the law on cross-motions for summary judgment, and the Eighth Circuit reversed. Applying strict scrutiny, the Eighth Circuit held that Missouri's interest in avoiding corruption or the appearance of corruption from large campaign contributions was insufficient by itself to amount to the "compelling interest" required by strict scrutiny. Instead, the Eighth Circuit held that the state must produce "some demonstrable evidence" that "genuine problems" had resulted from contributions larger than those allowed by the limits.
The U.S. Supreme Court reversed, in a six-to-three majority opinion written by Justice Souter. In doing so, however, the Court studiously avoided any traditional label for the level of scrutiny that should be applied to contribution limits. Instead, the majority opinion discussed the standard more in terms of what it is not: it is not the O'Brien standard5 used for communicative action; it is not the standard for time, place, and manner restrictions; and it is not strict scrutiny. The Court rejected strict scrutiny by reiterating Buckley 's frequently criticized distinction between spending limits, which Buckley determined were a direct restraint on speech and thus subject to strict scrutiny, and contribution limits, which Buckley determined still allowed for expression through the symbolic act of giving. In so doing, the Court commented that contribution limits bear "more heavily on the associational right than on freedom to speak." In the end, the Court applied what it called " Buckley 's standard of scrutiny," under which "a contribution limit involving 'significant interference' with associational rights . . . could survive if the Government demonstrated that contribution regulation was 'closely drawn' to match a 'sufficiently important interest,' . . . though the dollar amount of the limit need not be 'fine tun[ed].'" (Citations omitted.) Whatever the appropriate label may be for this standard, it is clear that contribution limits will continue to be more likely to survive a First Amendment challenge than spending limits.
What is also clear is that preventing the perception of corruption is a sufficiently important interest to justify campaign finance reforms, or at least contribution limits. States can take measures to address the loss of faith in the democratic process engendered by a system where candidates receive large individual campaign contributions, without having to show that actual bribery or other quid pro quo arrangements are taking place. In the words of the Court: "Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance." The Court's common sense acceptance that large contributions present dangers to the democratic system-describing that conclusion as "neither novel nor implausible"-also figured into its holding that Missouri had produced enough evidence to support its contribution limits. Again, the Court avoided setting forth a standard for exactly how much evidence was enough, noting simply that "this case does not present a close call requiring further definition of whatever the State's evidentiary obligation may be." The evidence that the Court found sufficient included an affidavit from a state senator who had cochaired the legislative committee on campaign finance reform at the time of the law's passage to the effect that large contributions have "the real potential to buy votes," newspaper accounts cited by the district court of potential improprieties related to large campaign contributions, and several campaign financing scandals cited by the Eighth Circuit in another case. Moreover, the Court noted that over 74 percent of Missouri voters had supported a referendum for contribution limits. Although the Court cited and relied upon this particular evidence, the Court essentially took judicial notice that "there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters."
Of potential significance to First Amendment cases outside the campaign finance arena was the Court's rejection of Shrink Missouri's reliance on language from United States v. National Treasury Employees Union6 and the Court's first decision in Turner Broadcasting7 to the effect that a government must "demonstrate that the recited harms are real, not merely conjectural" before it burdens First Amendment rights. The Court brushed aside this language as standing only for the proposition that "mere conjecture" has never been enough to justify a restriction on First Amendment rights. Whether this limitation of that language applies only to contribution limits, as is suggested by the context of the Court's statement, will have to await further elucidation.
Given the Court's ready acceptance of the state interest in combating the perception among voters that large campaign contributions lead to purchased influence, the battleground in future contribution limit cases likely will be over the type and amount of the restriction at issue. But the validity of the restriction will not depend simply on the dollar amount of the limitation or its buying power relative to the $1,000 limit in 1976 dollars upheld in Buckley . (Respondents in this case argued, as the Chief Judge of the Eighth Circuit had concluded, that the effect of inflation made the $1,075 limitation here one that was different in kind to that upheld in Buckley .) Rather, the decisive question will be whether challengers can still mount viable campaigns. In other words, the question whether the First Amendment rights of a would-be contributor (or candidate) have been violated will turn on whether the limitation is so low that it nullifies the point of associating with the candidate: "whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless." In this case, the district court found that Missouri's contribution limits had not affected the ability of candidates to run effective campaigns. The ineffectiveness of respondent Fredman's campaign was not likely caused by the contribution limits: Shrink Missouri was the only donor that Fredman identified as potentially willing to give him more than $1,075.
Although the majority opinion found a way to resolve this case within the First Amendment reasoning of Buckley , the concurring and dissenting opinions provide interesting fodder for future campaign finance reform cases. Justice Stevens wrote a four-paragraph concurrence to "make one simple point," specifically that "[m]oney is property; it is not speech." Under Justice Stevens's view, the underpinning of Buckley 's invalidation of spending limits is not the protection of free speech rights, but the protection of property and liberty interests. Although in his view "[t]he right to use one's own money to hire gladiators, or to fund 'speech by proxy,' certainly merits significant constitutional protection," these "property rights . . . are not entitled to the same protection as the right to say what one pleases." Justice Stevens appears alone in his view that the First Amendment is not implicated by campaign finance regulations on the use of money, but his analysis makes him a potential vote to uphold future campaign finance reforms (or, indeed, any type of regulation) regulating the use of money.
Although Justice Breyer, in a concurrence joined by Justice Ginsburg, echoed Justice Stevens's point that money is not speech, he nevertheless believed that First Amendment interests were at stake in the form of both "political association and political communication" because money "enables speech." But that fact was only half of the equation, because "this is a case where constitutionally protected interests lie on both sides." On the other side of the equation for Justices Breyer and Ginsburg was the very "integrity of the electoral process." These competing constitutional interests explained both their rejection of strict scrutiny of contribution limits (with its attendant presumption of unconstitutionality) and the amorphousness of the standard of review used by the Court. The appropriate test in their view is one that balances the competing constitutional interests: "whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon the others." In applying this test, they would be deferential to legislative judgments about what causes harm to the political system, but would scrutinize closely whether the means chosen to remedy the harm effectively insulate incumbents from electoral challenge. Justice Breyer's analysis is significant because it has application beyond the contribution limit context and could be used to argue for a wide range of campaign finance reforms. Indeed, Justices Breyer and Ginsburg read Buckley "to leave the political branches broad authority" to enact campaign finance reforms. Further, they expressed a willingness to reconsider Buckley if experience shows that the decision "denies the political branches sufficient leeway to enact comprehensive solutions to the problems posed by campaign finance."
Justices Scalia, Thomas, and Kennedy already are willing to abandon the analysis in Buckley and chastised the Court for not doing so in this case. To Justice Thomas, whose dissent was joined by Justice Scalia, the correct result is to extend Buckley 's holding regarding spending limits to contribution limits, as he sees no viable First Amendment distinction between directly spending money to advocate for a candidate and giving the candidate money for the same purpose. Because Justices Thomas and Scalia believe that contribution limits are "a direct and substantial limit on core speech," they would subject them to strict scrutiny and, it appears, find them virtually per se unconstitutional. Justice Kennedy, who dissented separately, is not yet willing to go that far. He would overrule Buckley , as he believes it has had the perverse (and unintended) effect of driving "political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits." He strongly suggests that the only constitutional way to remedy the ills caused by the importance of money to our political system is by more speech. But he is willing to "leave open the possibility that Congress, or a state legislature, might devise a system in which there are some limits on both expenditures and contributions, thus permitting officeholders to concentrate their time and efforts on official duties rather than on fundraising."
The immediate impact of this decision is to affirm that states, like the federal government, have leeway to impose contribution limits to address the perception of corruption, and attendant loss of faith in the democratic system, engendered by large individual campaign contributions. Such limitations are likely to be upheld as long as the measure does not insulate incumbents from effective challenge. The various opinions of this case also suggest that there is room within the confines of the First Amendment for other types of campaign finance reform. The "perception of corruption" rationale could be used to justify a wide range of reforms. Justice Breyer's concurrence specifically mentions several types of reforms-regulation of "soft money," public financing, and cut-rate media time-that he and Justice Ginsburg believe are permitted under the Buckley analysis. What still remains to be seen is whether expenditure limits would ever be upheld. There are clearly two votes-Justices Thomas and Scalia-that would never support such limits (absent a showing sufficient to meet strict scrutiny). But there are at least three votes that might support spending limits under certain circumstances. Justices Breyer and Ginsburg may support them if a showing could be made that, without spending limits, the legislature is unable to effectively address the harm being done to the democratic process by unlimited campaign spending. And if a showing could be made that without such limits as part of any comprehensive reform, political speech will be distorted rather than enhanced and officeholders will be distracted from their duties by inordinate fundraising demands, Justice Kennedy is a possible vote as well. The question will be what the remaining members of the Court (including Justice Stevens with his non-First Amendment analysis) will do in a case that directly presents spending limits, where they will be unable to duck the question of the continued validity of Buckley.
The Court granted certiorari in two First Amendment cases in January, both of which will be heard in April. The Court heard argument on April 24 in California Democratic Party v. Jones.8 The case involves whether associational rights of political parties and individuals are violated by California's open primary law, which allows voters to vote for any candidate regardless of the voter's or candidate's party affiliation. On April 26, the Court heard argument in Boy Scouts of America v. Dale.9 The case presents the question whether New Jersey's law against discrimination, by forbidding expulsion of an assistant scoutmaster solely because he is gay, abridges the Boy Scouts organization's First Amendment rights of speech and association.
Endnotes1. 120 S. Ct. 897, 2000 U.S. LEXIS 826 (Jan. 24, 2000).2. 424 U.S. 1 (1976) (per curiam).3. MO. REV. STAT. § 130.032.1(1) (1998 Cum. Supp.).4. Shrink Missouri Gov't PAC v. Adams, 161 F.3d 519, 521-22 (8th Cir. 1998).5. See United States v. O'Brien, 391 U.S. 367 (1968).6. 513 U.S. 454 (1995).7. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994).8. 169 F.3d 646 (9th Cir. 1999), cert. granted, 68 U.S.L.W. 3478 (U.S. Jan. 21, 2000) (No. 99-401).9. 734 A.2d 1196 (N.J. 1999), cert. granted, 68 U.S.L.W. 3458 (U.S. Jan. 14, 2000) (No. 99-699).Bruce J. Ennis, Jr., Paul M. Smith, and Deanne E. Maynard are partners in the Washington, D.C., office of Jenner & Block. Donald B. Verrilli, Jr., also a partner at Jenner & Block, and Ms. Maynard filed an amicus brief in Shrink Missouri on behalf of a bipartisan group of U.S. senators and representatives in support of the Missouri statute.