CONTENTS |
BACKGROUND | 99 |
A. | Act 64 | 99 | ||
B. | Procedural History | 102 | ||
C. | The District Court's Decision | 103 |
DISCUSSION | 105 |
I. | Act 64's Expenditure Limitations | 106 |
A. | The Rule of Buckley | 106 | ||
B. | The Requisite Level of Scrutiny | 110 | ||
C. | Compelling Interests | 114 |
1. | Anti–Corruption | 115 | |||
2. | Time Protection | 119 | |||
3. | Conclusion: Two Compelling Interests | 124 |
D. | Narrow Tailoring | 125 |
1. | advanced by campaign spending caps? | 126 | |||
2. | Do spending limits at these levels allow for “effective advocacy”? | 128 | |||
3. | Are mandatory expenditure limits the least restrictive means of advancing the State's interests? | 131 |
a. | Type of Regulation | 132 | ||||
b. | Basis for Spending Cap Limits | 133 |
E. | Conclusion: Remand for Further Findings | 135 | ||
II. | Act 64's Contribution Limitations | 137 |
A. | Limitations on Contributions by Individuals to Candidates | 137 | ||
B. | Limitations on Contributions to and by PACs and Political Parties | 139 | ||
C. | Contributions | 145 | ||
D. | The 25 Percent Limit on Out–of–State Donations is Unconstitutional | 146 |
CONCLUSION | 148 |
It is quite wrong to assume that the net effect of limits on contributions and expenditures—which tend to protect equal access to the political arena, to free candidates and their staffs from the interminable burden of fundraising, and to diminish the importance of repetitive 30–second commercials—will be adverse to the interest in informed debate protected by the First Amendment.
[C]andidates and policymakers ... can only talk to so many people in a day. They can only respond to so many phone calls. The governor can only have so many meetings in a day. And if in fact large contributors are using their contributions to buy access to the governor or other policymakers ... then that means that the policymaker, the governor and others are not spending their time talking to other people who have not provided other large contributions....
If I can go out and raise what I have to raise and know that those limits are in place, I can spend the whole rest of my campaign, once I have raised that money, out with the public, okay. I can go door-to-door. I can go around to local events. I can go to the county fairs. I can have a little booth, you know, and be talking to people. I am not going to be locked away, you know, in the Democratic Party somewhere or in my own office somewhere making fundraising calls. (testimony of Elizabeth Ready).
If the First Amendment rights of a contributor are not infringed by limitations on the amount he may contribute to a campaign organization which advocates the views and candidacy of a particular candidate, the rights of a contributor are similarly not impaired by limits on the amount he may give to a multicandidate political committee ... which advocates the views and candidacies of a number of candidates.
CONTENTS |
I. | INTRODUCTION | 150 |
II. | APPLICABLE CONSTITUTIONAL PRINCIPLES | 152 |
a) | Overview | 152 | |
b) | Money and Protected Political Speech | 153 | |
c) | Freedom to Organize Political Parties | 154 | |
d) | Sufficient Governmental Interests | 155 | |
e) | Requisite Precision of Regulation | 156 | |
f) | Appropriate Level of Scrutiny | 157 | |
III. | THE PROVISIONS OF ACT 64 | 159 |
a) | Overview | 159 | |
b) | Two–Year Cycle | 160 | |
c) | Limits on Expenditures by Candidates | 161 | |
d) | Limits on Contributions to Candidates | 165 | |
e) | Limits on “Related Expenditures” | 166 | |
f) | Costs of Compliance | 168 | |
g) | Treatment of the Press | 168 | |
h) | Administration and Enforcement | 169 | |
IV. | THE BURDEN ON PROTECTED SPEECH | 170 |
a) | The Burden on Grassroots Political Activity | 170 |
1) | Burden on Volunteer Activity | 170 | ||
2) | Burden on Local Party–Funded Activity | 171 |
b) | The Burden on Candidates' Speech | 172 |
1) | Past Experience | 172 |
A) | Inaccuracy of Reports From Past Elections | 172 | |||
B) | Constitutional Standard | 173 | |||
C) | Evidence of Contested Elections in Vermont | 175 |
2) | Effect of Act 64's Expenditure Limits on Candidates | 176 |
c) | The Burden on Challengers | 178 | |
d) | The Burden on the Press | 181 | |
e) | The Burden on Party Affiliates | 182 | |
V. | THE CONSTITUTIONAL RESOLUTION | 183 |
a) | Restrictions on Political Activity for Which No Governmental Interests are Asserted | 184 | |
b) | Buckley Forecloses the Asserted Justifications for Expenditure Limits | 185 | |
c) | The Insufficiency of the Governmental Interests | 189 |
1) | Anti–Corruption | 189 | ||
2) | Time Protection | 192 | ||
3) | Public Confidence in Government | 194 |
d) | Protection | 196 |
1) | The “Arms Race” | 196 | ||
2) | “Effective Advocacy” | 197 | ||
3) | Incumbent Protection | 199 |
e) | The Excessive Discretion Accorded Administrators | 199 |
VI. | THE REMAND ON NARROW TAILORING | 202 |
a) | Legislative Facts, Adjudicative Facts, and Mixed Issues of Fact and Law | 202 |
1) | The Distinction Between Legislative and Adjudicative Facts | 203 | ||
2) | Remand for “Findings” of Legislative Fact and of Law | 204 |
b) | Failure to Define What is Restrictive About Act 64 | 205 | |
c) | The Existence of a Less Restrictive Alternative | 206 | |
d) | Remanding to the Wrong Forum | 207 | |
VII. | CONCLUSION | 209 |
Appendix A | 210 |
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event.
[t]he First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign.
(1) what alternatives were considered by the legislature, including both alternative types of regulations and alternative amounts for the limits; (2) why these alternatives were rejected; (3) whether and how these alternatives would impinge less on First Amendment rights; and (4) whether the alternatives would be as effective as the mandatory spending limits in advancing the time-protection and anti-corruption interests.
“... I have been close to four or five Presidential campaigns .... I have sat next to the Presidential candidate, who was tired, who was weary and concerned with the issues and not able to handle them, not able to prepare, not able to think about them because he has to go downstairs at 7 in the morning to shake hands with a guy from whom he may get a large contribution.”
“It goes on all day long and all night long, and I was asked at the Senate hearings how much time do you think a Presidential candidate spends on fundraising? And I said at least 70 percent of his time, and I think all of his time, and I think all of his waking hours. It is really demeaning, demeaning to go through it.”
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