Op-ed: The Path Not Taken in Randall v. Sorrell

That campaign finance issues represented a judicial quagmire by the time of Randall v. Sorrell is not an argument in need of defense; the tangled web of selective concurrences, concurrences in opinion only and dissents by the justices in the case does that heavy lifting for us. Justice Kennedy recognized this, stating in his concurrence, ‘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.’ (emphasis added). Therefore, accepting that the court had created a mess of a situation, all that remains for discussion is whether a better path could have been taken. On one hand was the soft balancing standard developed by Justice Breyer in a plurality opinion which served as the judgment of the court. The more desirable alternative would have been scrapping the last vestiges of Buckley v. Valeo and its disparate treatment of contributions and expenditures as seemingly advocated for by Justice Thomas.

The framework of the debate has its foundation in the 1976 opinion of the Court in Buckley v. Valeo, where in an oftentimes rambling opinion the Court afforded the protections of the First Amendment to political expenditures, qualifying candidates’ spending as akin to speech. This provided the category of expenditures a strict scrutiny analysis shield in situations where expenditures were restricted. However, the court failed to extend the same protections to contributions. Although acknowledging that contributions represent support for a candidate, the Court did not feel that the direct voice of contributors was stifled when their contributions were capped. Indeed, claimed the Court, contributions, and particularly large ones, could be viewed in many cases as emblematic of corruption rather than as speech, whether in fact or merely in appearance. Because of this potential appearance of corruption and its deleterious impact on the political process, the court was satisfied with legislative efforts to control contributions, so long as restrictions were tailored to meet a state interest.

At the end of a long line of contentious cases resulting in split Courts arose Randall, a case where state restrictions on both expenditures and contributions were addressed. Justice Breyer, delivering the judgment, dispensed with the expenditure issue by refusing to overrule Buckley and its progeny. From there, Breyer turned to the question of contributions, which, in Vermont, had been capped at $200 per candidate per election. Not only was this less than the caps in a vast majority in the country, according to the court, it was in fact the lowest cap in the land. Despite previously allowing (at least in concurrence) contribution limits in cases such as Nixon v. Shrink Missouri Government PAC, Breyer decided in Randall to reject the state’s limits. The basis for Breyer’s judicial decision was that Vermont had gone too far, and the tool used to support it was the First Amendment. Because of the soft standard he adopted, however, Breyer created confusion and more problems than he solved.

Proving that Vermont’s limits had gone too far, and were therefore incompatible with the First Amendment, was accomplished via a five point analysis, noting inter alia, that the restrictions were not adjusted for inflation and that there was no statutory justification for low limits in Vermont. Because of this, Breyer claimed, Vermont’s restrictions were not narrowly tailored and were therefore unconstitutional. Because of this seemingly gut feeling- based analysis, and because its basis was the possible impingement of free speech, Justice Thomas could not have handpicked a better case to expose the failings of the state of judicial meddling in campaign finance than Randall. In fact, as soon as Breyer accepted the First Amendment implications in the Vermont plan, the Court should have used it as an opportunity to scrap the entire campaign finance regime and adopt a strict scrutiny analysis. This would have effectively ended most restraints on limits.


Thomas concurs in the result only, in keeping with previous statements that caps were inappropriate. However, finding that the opinion itself created a mess of the system, Justice Thomas grasped the opportunity to renew his personal battle cry against contribution limits. As he frames the opinion of Breyer, ‘…the plurality does not purport to offer any single touchstone for evaluating the constitutionality of such laws. Indeed, its discussion offers nothing resembling a rule at all. From all appearances, the plurality simply looked at these limits and said, in its ‘independent judicial judgment,’ that they are too low.’ As an alternative, Thomas would almost scrap contribution limits altogether as he seems to want to do throughout this line of cases, including Shrink. There, he advocated for dropping the Buckley regime, stating his opinion that contributions are a form of speech, and claiming that a strict scrutiny analysis of limits would be the most appropriate regime.

This is not to suggest that strict scrutiny analysis of contribution limits would be without problems. Justice Breyer, for example, had described the perils of a strict scrutiny approach in previous cases, such as Shrink. There he noted that Thomas’ approach would give too little attention to free speech’s countervailing interest, namely the possible damage to a democratic electoral process. This is a valid concern stemming from a risk that large contributions could appear to be bribes or otherwise corrupt.

However, the judicial solution to that problem, namely capping limits, caused many others. For example, contribution limits lead to a whole subculture of political intrigue which sprung up out of attempts to avoid judicial scrutiny, such as PACs. This has arguably detracted from the political process as the general public has very little understanding of how these organizations function. However, if contribution caps were scrapped, even more effective safeguards could be utilized to ensure the sanctity of the electoral process. For example, disclosure laws, such as those described by Thomas in Shrink, as well as strict anti-bribery laws, go a lot farther toward eliminating the ills of a non-democratic process than contribution limits and the PACs which they have spawned. Additionally, it should be noted that strict scrutiny analysis is not an absolute bar to spending limits; it simply means that they would be put to the highest level of judicial scrutiny, a seemingly sensible regime.

It is also very possible that overruling Buckley would lead not only to strict scrutiny analysis, but an entirely better system. This is because Congress might be prodded to address the campaign finance regime more realistically if the Court were to declare the current scheme entirely unconstitutional. It is unclear exactly what approach would be taken if the Court overruled Buckley, but two outcomes seem likely. If the Court joined Thomas in a majority holding that all limitations should be subject to strict scrutiny analysis, Congress could, at the least, ensure that proper and easy to understand disclosures were available for the American public to undercut any notions of impropriety. If the Court merely held, however, that Buckley should no longer be the key to analyzing restrictions, it could open an avenue for the legislature to reevaluate the system and indeed would be inviting it to do so.

Ultimately, Justice Breyer’s gut feeling test is unworkable, and does nothing to solve the root problems that it is addressing. Using contribution limits to solve one problem creates many others, and if spending by candidates is akin to free speech, it could certainly be argued that restricting the contributions which enable those expenditures curtails First Amendment freedoms as well. And though there are concerns about large moneyed interests having undue influence on the political process, these concerns can in large part be alleviated by the presence of legislation better tailored to meeting these goals. Therefore, the Court should have followed Thomas’ logic in overruling Buckley, leading either to better legislative safeguards or a new legislative regime. Either would be preferable to the current system, its overwhelming confusion, and lack of proper analysis.