Is the Supreme Court of the United States set to expand First Amendment protection for political participation? Possibly. The Court is currently considering whether to grant review in Lair v. Mangan, a case out of the Ninth Circuit. If it does, the Court would have the opportunity to clarify the extent to which states may burden the First Amendment by imposing limits on campaign contributions.
The issues in Lair stem from a fundamental dichotomy at the heart of much of campaign finance law. Generally speaking, the government may not limit the amount of money a person independently spends in support of political candidates. Conversely, it may limit the amount of money a person contributes to those candidates. The Supreme Court established this distinction in the 1976 case of Buckley v. Valeo, and it has remained controversial ever since.
The Buckley Court reasoned that political speech and association, freedoms protected by the First Amendment, require the expenditure of funds to be effective. Any restriction on that spending is therefore subject to stringent judicial scrutiny (and likely invalidation). Campaign contributions, on the other hand, are “undifferentiated, symbolic act[s]” of support. Although contribution limits burden First Amendment rights to some degree, the burden is less substantial because the limits do not prevent contributors from conveying their support. Buckley directs courts to apply a standard of review to challenged contribution limits that, though still “rigorous,” is less searching than the standard applicable to expenditures.
Some critics argue that the Court’s distinction between political expenditures and political contributions is untenable. But even if one accepts Buckley’s reasoning, a difficult problem arises. As the Buckley Court acknowledged, contribution limits do burden First Amendment rights by limiting the ability of persons to pool their resources to communicate support of a candidate. So the government may not set contribution limits as low as it wants (an absolute ban on contributions, for example, would be unconstitutional). But how low is too low? That is a question that has troubled the judiciary at all levels for decades. The Court did provide some guidance in a 2006 case called Randall v. Sorrell, but courts have struggled with Randall’s application.
The Supreme Court has an opportunity to take a fresh look at the issue in Lair v. Mangan. James Bopp (the same lawyer who brought you Citizens United, among many others) is spearheading a lawsuit claiming that Montana’s contribution limits are unconstitutionally low. (One set of contribution limits at issue in the case, for example, ranges from $180 to $680 per individual, per election depending on the type of race.) The Lair plaintiffs have filed a petition for writ of certiorari with the Supreme Court claiming that the Ninth Circuit, which upheld Montana’s contribution limits, failed to apply a sufficiently demanding standard in its review of those limits. The petitioners also contend that the test set forth in Randall for reviewing the constitutionality of contribution limits is unworkable and should be overruled. (My group, the Wisconsin Institute for Law & Liberty, recently filed an amicus curiae brief recommending that the Supreme Court accept review of the case.)
If the petition is granted, Lair would likely throw into sharp relief two competing trends in Supreme Court campaign finance case law. The first is the ongoing crusade, championed by Justice Thomas and often supported by Justice Scalia (and to a lesser extent Justice Kennedy), to overrule Buckley. The second is a more modest attempt by certain justices to close the constitutional gap between contributions and independent expenditures by lending teeth to the standard of review applicable to contribution limits.
In practice, these two trends have produced Supreme Court decisions that lacked majority opinions, most notably the fascinating 2014 decision of McCutcheon v. Federal Election Commission (another case in which James Bopp participated). There, Chief Justice Roberts authored a plurality opinion joined by justices Scalia, Kennedy, and Alito in which the four justices seemingly endeavored to clarify Buckley and explain that the test applicable to contribution limits was not so different from the test applicable to independent expenditures after all. That mission was torpedoed by Justice Thomas, who declined to transform the plurality opinion into a majority opinion with his vote and instead insisted that the Court do away with Buckley completely.
Justices Scalia and Kennedy have now been replaced by Justice Gorsuch and, perhaps, Justice Kavanaugh. What this new Court would do with a case like Lair v. Mangan is anyone’s guess, but additional guidance is sorely needed.