Landell v. SorrellLandell v. Sorrell
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Timothy B. Tomasi, Assistant Attorney General, Montpelier, VT (Richard A. Johnson, Jr., Christopher G. Jernigan, Assistant Attorneys General, Office of the Attorney General, William H. Sorrell, Attorney General, Montpelier, VT, of counsel), for Defendants-Appellants-Cross-Appellees William H. Sorrell, John T. Quinn, William Wright, Dale O. Gray, Lauren Bowerman, Vincent Illuzzi, James Hughes, George E. Rice, Joel W. Page, James D. McNight, Keith W. Flynn, James P. Mongeon, Terry Trono, Dan Davis, Robert L. Sand, and Deborah Markowitz.
Brenda Wright, National Voting Rights Institute, Boston, MA (Bonita Tenneriello, John C. Bonifaz, Gregory G. Luke, National Voting Rights Institute, Boston, MA; Peter F. Welch, Welch, Graham & Mamby, Burlington, VT; of counsel), for Intervenors-Defendants-Appellants-Cross-Appellees Vermont Public Interest Research Group, the League of Women Voters of Vermont, Rural Vermont, Vermont Older Women‘s League, Vermont Alliance of Conservation Voters, Mike Fiorillo, Marion Grey, Phil Hoff, Frank Huard, Karen Kitzmiller, Marion Milne, Daryl Pillsbury, Elizabeth Ready, Nancy Rice, Cheryl Rivers, and Maria Thompson.
Mitchell L. Pearl, Langrock Sperry & Wool, LLP, Middlebury, VT (Peter F. Langrock, Langrock Sperry & Wool, LLP, Middlebury, VT; Joshua R. Diamond, Diamond & Robinson, Montpelier, VT; David Putter, Montpelier, VT; Mark J. Lopez, American Civil Liberties Union, New York, NY; American Civil Liberties Foundation of Vermont; of counsel), for Plaintiffs-Appellees-Cross-Appellants Neil Randall, George Kuusela, Steve Howard, Jeffrey A. Nelson, John Patch, and Vermont Libertarian Party.
James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN (James R. Mason, III, Eric R. Bohnet, Aaron Kirkpatrick, Bopp, Coleson & Bostrom, Terre Haute, IN, of counsel), for Plaintiffs-Appellees-Cross-Appellants Donald R. Brunelle, Vermont Right to Life Committee, Inc., Vermont Republican State Committee, Vermont Right to Life Committee-Fund for Independent Political Expenditures, and Marcella Landell.
Jane R. Rosenberg, Assistant Attorney General, Hartford, CT (Eliot D. Prescott, Assistant Attorney General, Richard Blumenthal, Attorney General, Hartford, CT, of counsel), for Amici States of Colorado, Connecticut, Maryland, New York, and Oklahoma.
Gillian E. Metzger, Brennan Center for Justice at New York University School of Law, New York, N.Y. (Nancy Northup, Brennan Center for Justice at New York University School of Law, New York, NY, of counsel), for Amicus Brennan Center for Justice at New York University School of Law.
Before: WINTER, STRAUB, and POOLER, Circuit Judges.
STRAUB, Circuit Judge.
During his 1997 inaugural address, Vermont‘s Governor offered the Vermont General Assembly a moment of telling candor: “As I‘ve said before, money does buy access and we‘re kidding ourselves and Vermonters if we deny it. Let us do away with the current system.” The General Assembly responded by promulgating Act 64, a comprehensive campaign finance reform package. The testimony and statements made during the General Assembly‘s debate demonstrated that Vermont lawmakers were concerned with more than just the quid pro quo corruption that preoccupies much of campaign finance reform. Typically, this fear of corruption has involved the danger that politicians will sell their votes for campaign funds. The Vermont debate highlighted something else that public officials can, and apparently do, offer in exchange for funds: time and access. The General Assembly, together with the State‘s chief executive, concluded that Vermont needed limitations governing its campaigns for state office with respect to both expenditures and contributions.
This appeal arises from a consolidated suit which brings a First Amendment challenge to key sections of Act 64. The plaintiffs have argued that Vermont‘s reform violates the First Amendment guarantee of free speech and association in the political realm. At the conclusion of a bench trial, the District Court enjoined the enforcement of Act 64‘s limitations on expenditures, gifts by non-resident contributors, and contributions by political parties to candidates. The District Court upheld all of Act 64‘s other contribution limitations, including limits of between $200 and $400 on contributions to candidates by individuals and political action committees, limits of $2000 on contributions to political parties and political action committees, and regulations treating coordinated expenditures by third parties as contributions to a candidate.
All parties have appealed that decision. We are therefore asked to determine whether the First Amendment rights of free speech and political association forbid each of the challenged provisions, including (1) Vermont‘s campaign expenditure limitations; (2) the contribution limits applied to candidates; (3) the contribution limits applied to political parties and political associations; (4) the limit on contributions by non-residents; and (5) the regulation of coordinated expenditures by political parties.
After issuance of the original opinion in this case, see Landell v. Sorrell, Nos. 00-9159(L), 00-9180(CON), 00-9231(XAP), 00-9139(XAP), and 00-9240(XAP) (2d Cir. Aug. 7, 2002) (slip op.), in which we upheld in large part both Act 64‘s contribution limits and its expenditure limits, plaintiffs filed a petition for rehearing in banc. We withdrew our original opinion on October 3, 2002, pending further proceedings. Landell v. Sorrell, Nos. 00-9159(L), 00-9180(CON), 00-9231(XAP), 00-9139(XAP), and 00-9240(XAP), 2002 WL 31268493 (2d Cir. Oct. 3, 2002). Having reconsidered our holding and taking serious note of the views presented during the rehearing process, we now issue this amended opinion, modifying our holding only with regard to Act 64‘s expenditure limits. In both instances, our colleague, Judge Winter, has dissented.
As we did in our original opinion, we hold today that the Supreme Court, in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), did not rule campaign expenditure limits to be per se unconstitutional, but left the door ajar for narrowly tailored spending limits that secure clearly identified and appropriately documented compelling governmental interests.1 In applying the narrow tailoring test, we hold that the State has established that the challenged expenditure limits are supported by its compelling interests in safeguarding Vermont‘s democratic process from (1) the corruptive influence of excessive and unbridled fundraising2 and (2) the effect that perpetual fundraising has on the time of candidates and elected officials. The evidence considered by the District Court and the Vermont legislature demonstrates that, absent expenditure limitations, the fundraising practices in Vermont will continue to impair the accessibility to elected officials which is essential to any democratic political system. The race for campaign funds has compelled public officials to give preferred access to contributors, essentially requiring candidates to sell their time in order to raise campaign funds. In addition, we affirm the District Court‘s finding that effective campaigns can be run under Act 64‘s limits.
Nevertheless, although we reaffirm these aspects of our original holding, we now conclude that a remand is necessary for further fact-finding on an aspect of the narrow tailoring inquiry that was not fully considered by the District Court: the crucial question of whether Act 64‘s expenditure limits provision was the “least restrictive means” of furthering the State‘s compelling anti-corruption and time-protection interests — or whether there are other less restrictive mechanisms available that might be as effective in satisfying the compelling interests established by Vermont. On remand, the District Court should also consider another question that it did not reach in its original examination of this case — whether treating related expenditures as candidate expenditures is constitutional. We therefore leave in place the District Court‘s injunction, while remanding for further proceedings.
As for the remaining issues regarding Act 64‘s contribution limitations, our decision remains the same in all material respects. We hold that all of Vermont‘s provisions limiting the size of contributions survive scrutiny, including the treatment of a third party‘s related expenditures as contributions and the application of contribution limitations to political party donations to candidates. We thus affirm the District Court‘s rulings on contribution limits in part, but vacate and remand for further proceedings insofar as the District Court‘s injunction prohibits enforcement of the political party limit. We also vacate the judgment and remand for further proceedings on (1) whether the provisions of Act 64 regulate wholly independent expenditures by political action committees (“PACs“) and, if so, whether those provisions are constitutional; and (2) the constitutionality of the law‘s regulation of funds transferred from national political parties to state and local party entities.
Finally, we affirm the District Court‘s holding that the First Amendment forbids Vermont‘s attempt to limit campaign contributions by non-residents to no more than 25 percent of the total contributions received. Vermont has asserted no governmental interest sufficient to justify such a rule.
Due to the number of issues involved in this case, we set out the following table of contents:
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. Are Vermont‘s time-protection and anti-corruption interests 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. The Related Expenditure Provision is Constitutional as to Contributions .......................................................... 145 D. The 25 Percent Limit on Out-of-State Donations is Unconstitutional ....... 146 CONCLUSION ....................................................................... 148
A. Act 64
In 1997, Vermont passed a comprehensive campaign reform act known as Act 64. 1997 Vermont Campaign Finance Reform Act, codified at
The Act also limits the size of contributions which candidates, political committees, and political parties may receive from a single source during a two-year election cycle. Candidates for state representative or local office may accept no more than $200 from a single source, political party, or political action committee. See
The Act further imposes limits on the source of such contributions. Although candidates, political parties, and political action committees may accept contributions from out-of-state residents and political organizations, the sum of such amounts may not exceed 25 percent of the total contributions received. See
Finally, the Act treats coordinated expenditures by third parties as both contributions to a candidate (subject to the applicable contribution limits) and expenditures by the candidate (counted against the candidate‘s permissible budget). See
The Vermont General Assembly promulgated Act 64 after extensive legislative consideration. Numerous committees considered the Act, holding over 65 hearings with more than 145 witnesses testifying. Moreover, Act 64 was the latest installment of Vermont‘s century-long effort to safeguard the accessibility and accountability of its elected officials.3
The General Assembly closely investigated the history of campaign financing for state races by examining campaign finance summaries for various Senate, House, and statewide races during the period 1978-1996, and reports of spending and contribution patterns in Vermont races. Members of the General Assembly analyzed the current status of Vermont‘s campaign finance law, including the disintegration of Vermont‘s voluntary expenditure limits. They also spoke with a range of experienced candidates and experts who provided testimony and data regarding the cost of campaigning, including the cost of travel, staff, materials, mailings, phone calls, and television and radio advertisements. Some of these witnesses described the widespread use of manipulative contribution devices, such as “bundling,” which enable special interests to direct large quantities of money by way of individual contributions to particular candidates. Polls demonstrated that citizens held deep reservations and suspicions about the influence of money on the political system, particularly the influence of large contributions. Some witnesses provided testimony detailing the role that big donors have played in advocating or blocking particular pieces of legislation in Vermont.
The record considered by the General Assembly demonstrated how the Vermont system of unbridled expenditures has created a situation where public officials are functionally compelled to sell privileged access through the fundraising system. The Vermont legislature explained that this results in a number of related phenomena, including (1) candidates being forced to spend too much time fundraising; (2) fundraising requiring candidates to give preferred access to contributors over non-contributors; and (3) the system of increasing expenditures hindering the robust debate of issues, candidate interaction with the electorate, and public involvement and confidence in the electoral process.
The evidence adduced in those hearings also demonstrated broad and powerful support among the Vermont electorate for fundamental reform to the State‘s campaign financing scheme. These legislative hearings culminated in passage of the Act by an overwhelming majority and with strong bipartisan support.
Based on these hearings, reports and data, the General Assembly set forth specific findings which, in its view, indicated the need for comprehensive reform that includes contribution and expenditure limitations in Vermont electoral campaigns.
The General Assembly finds that:
- Election campaigns for statewide and state legislative offices are becoming too expensive. As a result many Vermonters are financially unable to seek election to public office and candidates for statewide offices are spending inordinate amounts of time raising campaign funds.
- Some candidates and elected officials, particularly when time is limited, respond and give access to contributors who make large contributions in preference to those who make small or no contributions.
- In the context of Vermont, contributions larger than the amounts specified in this act are considered by the legislature, candidates and elected officials to be large contributions.
- Robust debate of issues, candidate interaction with the electorate, and public involvement and confidence in the electoral рrocess have decreased as campaign expenditures have increased.
- Increasing campaign expenditures require candidates to seek and rely on a smaller number of larger contributors, often outside the state, rather than a large number of small contributors.
- In the context of Vermont, contributions scaled in proportion to the size of the electoral district of the office and up to the amounts specified in this act adequately allow contributors to express their opinions, level of support and their affiliations.
- In the context of Vermont, candidates can raise sufficient monies to fund effective campaigns from contributions no larger than the amounts specified in this act.
- Limiting large contributions, particularly from out-of-state political committees or corporations, and limiting campaign expenditures will encourage direct and small group contact between candidates and the electorate and will encourage the personal involvement of a large number of citizens in campaigns, both of which are crucial to public confidence and the robust debate of issues.
- Large contributions and large expenditures by persons or committees, other than the candidate and particularly from out-of-state political committees or corporations, reduce public confidence in the electoral process and increase the appearance that candidates and elected officials will not act in the best interests of Vermont citizens.
- Citizen interest, participation and confidence in the electoral process is lessened by excessively long and expensive campaigns.
- Public financing of campaigns, conditioned on an appropriate number of qualifying contributions, will increase citizen participation and will limit the time spent soliciting contributions, and will reduce the need of elected officials to respond to, and provide access to, contributors. As a result candidates will be freed to devote more time and energy to debate of the issues and elected officials will be able to spend more time responding to constituents and to performing their official duties.
- Public financing of campaigns, coupled with generally applicable contribution and expenditure limitations, will level the financial playing field among candidates and provide resources to independent candidates, both of which will increase the debate of issues and ideas.
- In Vermont, campaign expenditures by persons who are not candidates have been increasing and public confidence is eroded when substantial amounts of soft money are expended, particularly during the final days of a campaign.
- Identification of persons who publish political advertisements assists in enforcement of the contribution and expenditure limitations established by this act.
- Because it is essential for all candidates to have their names and positions on issues known to the electorate and because incumbents have a substantial advantage in these areas, public grants and campaign expenditures must be reduced for incumbents.
1997 Vt. Laws P.A. 64 (H. 28). On June 26, 1997, Vermont‘s Governor signed Act 64 into law.
B. Procedural History
The current suit was consolidated from three separate civil actions. On May 18, 1999, Marcella Landell, Donald R. Brunelle, and the Vermont Right to Life Committee, Inc., sued Vermont‘s Attorney General, Secretary of State and fourteen state‘s attorneys (“Vermont“). On August 13, 1999, Neil Randall, George Kuusela, Steve Howard, Jeffrey A. Nelson, John Patch, and the Vermont Libertarian Party also brought suit, as did the Vermont Republican State Committee on February 15, 2000. The remaining defendants, including the Vermont Public Interest Research Group, the League of Women Voters of Vermont, and numerous members of Vermont‘s General Assembly (collectively “Defendant-Intervenors“), successfully intervened in the consolidated action.4
Plaintiffs argued that the challenged provisions unconstitutionally infringe their First Amendment rights to free speech and political association.5 The District Court held a ten-day bench trial between May 8, 2000 and June 2, 2000. An array of former and current public office holders, private citizens, and electoral experts testified about Vermont‘s interest in campaign finance legislation, the history of elections and campaign finance reform in Vermont, the cost of campaigning in Vermont, and the likely effect of Act 64‘s challenged provisions on Vermont races, candidates and political actors. As we discuss in more detail below, the ten-day bench trial resulted in the District Court‘s upholding most of the challenged provisions, but striking down Act 64‘s expenditure limitations, its limitations on contributions by parties to candidates, and its restriction on contributions from out-of-state sources. Vermont and the other defendant-appellants timely appeal from the District Court‘s order holding those portions of Act 64 unconstitutional. Vermont is joined by amici, the Brennan Center for Justice at New York University School of Law and the States of Colorado, Connecticut, Maryland, New York, and Oklahoma. The plaintiffs have cross-appealed, contending that the District Court should have also enjoined the enforcement of the other disputed provisions of the Act.
After receiving post-trial submissions, the District Court issued an opinion containing its findings of fact and conclusions of law. See Landell v. Sorrell, 118 F.Supp.2d 459 (D.Vt.2000). First, the District Court held that the plaintiffs have standing to challenge the subject provisions of the Act. Id. at 475. As to the merits, although the District Court found that Vermont had generally demonstrated several compelling justifications for Act 64‘s comprehensive reform of the campaign finance system, the court concluded that some of Act 64‘s provisions violated the First Amendment. With the exception of the expenditure limitations, the District Court applied the standard of review of “exacting scrutiny,” inquiring whether the provision is narrowly tailored to serve a sufficiently important governmental interest. With regard to the expenditure limits, the District Court interpreted Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), as forbidding such limitations per se and held that any contrary decision would violate the doctrine of stare decisis. 118 F.Supp.2d at 483. The District Court rejected the expenditure limitations despite its findings that Vermont had established several compelling interests in their favor, namely: (1) freeing office holders from the requirements of excessive fundraising so that they can perform their duties; (2) preserving faith in democracy; (3) protecting access to the political arena for those unable to access large sums of money; and (4) diminishing the importance of repetitive 30-second commercials. Id. at 482-83. Despite holding that the expenditure limitations are illegal under Buckley, the District Court did find that the expenditure limits would permit effective campaigning. Id. at 471-72.
The District Court upheld the provisions imposing limitations on amounts that individuals may contribute to political campaigns,
The District Court further analyzed the amounts of the contribution limitations, and held that they were narrowly tailored to serve this anti-corruption purpose. In support of the narrow-tailoring conclusion, the court relied upon the cost of previous elections in Vermont, the size of Vermont electoral districts and the corresponding cost-per-voter, the effect of the limitations on the Burlington mayoral election held after the passage of Act 64, the widely-held public view that donations in excess of the Act‘s limitations were suspicious, and the fact that the limitation did not inhibit “effective campaigning.” Id. at 470-72, 476-80.
The District Court rejeсted the contention that PACs merit special treatment; it thus upheld the restrictions on contributions by and to PACs pursuant to Act 64. See
The District Court held, however, that political parties deserve greater freedom in their ability to make contributions to political candidates. Although the District Court upheld the $2000 limitation on contributions to political parties pursuant to
The District Court held that Vermont‘s limits on how much a political party could give to its own candidates for various state offices ($400, $300, and $200, respectively) were unconstitutionally low. Id. at 487. The court recognized that the anti-corruption interest may justify some limitations, given that corruption may “filter[] through the party machine.” Id. at 486. But according to the District Court, those limitations must be balanced against the special role political parties play in the American electoral system. Without much factual discussion, the court concluded that the limits would reduce the party‘s voice to a whisper — since political parties speak through their candidates and the restrictions were too stringent even for the small scale of Vermont‘s electoral races. Id. at 487.
The District Court also upheld the treatment of state and local parties as a single entity for the purpose of calculating the contribution limitations pursuant to
The District Court upheld the provision of Act 64 that treats third party expenditures “intentionally facilitated by, solicited by or approved by the candidate or the candidate‘s political committee” as contributions to the candidate pursuant to the Act. See
The District Court found unconstitutional the provision that caps out-of-state funds at 25 percent of total contributions received by a candidate, political party, or PAC pursuant to
Finally, the court held that, under Vermont law, the unconstitutional provisions may be severed from the rest of Act 64. Id. at 492-93.
As a threshold matter, the defendants have challenged the plaintiffs’ standing to assert this facial challenge to Act 64‘s expenditure and contribution limitations. In order to present a “case or controversy” within the meaning of
Although we review the District Court‘s factual findings for clear error pursuant to
In reviewing campaign finance regulations, “the level of scrutiny is based on the importance of the political activity at issue to effective speech or political association.” Federal Election Comm‘n v. Beaumont, 539 U.S. 146, 161, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) (internal quotation marks omitted). Campaign contributions advance political association by allowing one to affiliate with a political candidate, and “enabl[ing] like-minded persons to pool their resources in furtherance of common political goals.” Buckley, 424 U.S. at 22, 96 S.Ct. 612. However, restrictions on contributions have been treated as merely “marginal” speech restrictions because contributions “lie closer to the edges than to the core of political expression.” Beaumont, 539 U.S. at 161, 123 S.Ct. 2200. As a result, contribution limits pass muster if they are “closely drawn to match a sufficiently important interest.” Id. at 162, 123 S.Ct. 2200 (citations and internal quotation marks omitted). And, as the Supreme Court recently observed, its cases “have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits.” McConnell, 540 U.S. at ___, 124 S.Ct. at 660; see also id. at ___, 124 S.Ct. at 657 n. 40 (explaining that since Buckley, the Court has “consistently applied less rigorous scrutiny to contribution restrictions aimed at the prevention of corruption and the appearance of corruption“) (collecting cases).
However, “limits on political expenditures deserve closer scrutiny than restrictions on political contributions.” Federal Election Comm‘n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 440, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) (Colorado Republican II); see also McConnell, 540 U.S. at ___, 124 S.Ct. at 655. The Supreme Court has treated limits on campaign spending as a direct restraint on speech, and thus, expenditure limits must be narrowly tailored to serve a compelling state interest. See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) (addressing corporate expenditures).
With these standards in mind, we review each of the challenged provisions in turn.
I. Act 64‘s Expenditure Limitations
A. The Rule of Buckley
Buckley v. Valeo remains the seminal case governing the constitutional review of campaign finance reform efforts, including expenditure limitations. 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The Buckley Court considered and rejected a variety of expenditure limitations, including a ceiling on independent, campaign-related expenditures, a ceiling on a candidate‘s use of personal or family resources, and a ceiling on a candidate‘s campaign expenditures. Like the federal statute reviewed in Buckley, Act 64 limits the total amount of campaign funds that a candidate may spend.
Although the clear language of Buckley requires that courts should review expenditure limits with exacting scrutiny, the District Court in this case (and it is by no means alone) apparently felt that Buckley categorically prohibits expenditure limitations. See, e.g., Homans v. City of Albuquerque, 366 F.3d 900, 914-21 (10th Cir.2004); Kruse v. City of Cincinnati, 142 F.3d 907, 918-19 (6th Cir.), cert. denied 525 U.S. 1001, 119 S.Ct. 511, 142 L.Ed.2d 424 (1998); see also post at 151, 152, 159, 172, 185 (Winter, dissenting). We disagree. The Buckley Court‘s rejection of particular federal campaign expenditure limitations was rooted in Congress’ purported reasons for such legislation and the failures of those interests to demonstrate any need for expenditure limits. 424 U.S. at 55-58, 96 S.Ct. 612. Ultimately, the Court concluded that the federal government had failed to assert any sufficiently important interest that its expenditure limitations served. See id. at 55, 96 S.Ct. 612.
Examining the federal government‘s interest in eliminating corruption from federal elections, the Buckley Court concluded that the government‘s asserted rationale only applied to large contributions — that is, eliminating large contributions fully satisfied the government‘s anti-corruption interest. See id. at 56-57, 96 S.Ct. 612. The federal government claimed that expenditure limitations were necessary to make contribution limitations easier to enforce, arguing that when candidates cannot spend large quantities of money, they have a weaker incentive to accept illegally large contributions. But the Court concluded that the contribution limitations promised to be sufficiently effective on their own. See id. Based on the Court‘s review of the record, “[t]here [was] no indication that the substantial criminal penalties” attached to violations of contribution limits, as well as the “political repercussion of such violations,” would not suffice to realize this anti-corruption interest. Id.
Nor was the Court persuaded that the federal government had a sufficient interest in utilizing expenditure limitations to equalize the financial resources of candidates competing for office. See id. at 56-57, 96 S.Ct. 612. The contribution limits would assure that any difference in resources “var[ies] with the size and intensity of the candidate‘s support.” Id. at 56, 96 S.Ct. 612. Finally, the Court addressed the argument that expenditure limitations served the federal government‘s interest “in reducing the allegedly skyrocketing costs of political campaigns.” Id. at 57, 96 S.Ct. 612. The Court rejected the idea that the state had a sufficient interest in setting the appropriate scope of the “quantity and range of debate on public issues in a political campaign.” Id. In other words, Buckley held that large campaign expenditures, in and of themselves, are not inherently suspect.
We conclude, then, that Vermont cannot sustain Act 64 by asserting a need to control excessive campaign spending per se. But critically, the Buckley Court did not conclude that the Constitution would always prohibit expenditure limits, regardless of the reasons asserted and the record supporting the limitations. It simply held that based on the record before it, “[n]o governmental interest that has been suggested is sufficient to justify” the federal expenditure limits. Id. at 55, 96 S.Ct. 612. Accordingly, after Buckley, there remains the possibility that a legislature could identify a sufficiently strong interest, and develop a supporting record, such that some expenditure limits could survive constitutional review.
We are not alone in concluding that Buckley does not permanently foreclose any consideration of campaign expenditure limitations. In Shrink, Justices Breyer, Ginsburg and Stevens all recognized that our post-Buckley experiences with campaign finance have demonstrated that we need a flexible approach to the constitutional review of campaign finance laws. Justice Breyer, who was joined by Justice Ginsburg, concluded that courts must resist a static reading of Buckley‘s mandate, which may require reinterpretation in light of subsequent experience, including a legislature‘s “political judgment that unlimited spending threatens the integrity of the electoral process.” 528 U.S. at 403-04, 120 S.Ct. 897 (Breyer, J., concurring). Legislatures may protect the electoral process not only from quid pro quo corruption, but also from the threat that campaign funding may pose to the “integrity of the electoral process.” Id. at 401, 120 S.Ct. 897. Justice Stevens also articulated the need for “a fresh reexamination” of Buckley, and concluded that “Money is property; it is not speech.” Id. at 398, 120 S.Ct. 897 (Stevens, J., concurring). And although Justice Kennedy argued from a different perspective that the post-Buckley experience requires a wholesale abandonment of the approach adopted in Buckley, he too left 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 effort on official duties rather than on fundraising.” Shrink, 528 U.S. at 409, 120 S.Ct. 897 (Kennedy, J., dissenting); see also McConnell, 540 U.S. at ___, 124 S.Ct. at 745 (Kennedy, J., concurring in part and dissenting in part) (indicating by implication that Buckley did not make expenditure limits per se invalid).6
Indeed, some judges have noted that reconsideration might be required were a court faced with compelling evidence that unlimited expenditures posed great dangers to the very political process that Buckley sought to safeguard. Justices Stevens and Ginsburg have supported the constitutionality of spending limits on political parties for, among other reasons, the likelihood that such limits would improve, rather than inhibit, a flourishing political system:
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.
Colorado Republican Federal Campaign Comm. v. Federal Election Comm‘n, 518 U.S. 604, 649-50, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (Colorado Republican I) (Stevens, J., dissenting). In part, they reached this conclusion because of the comparative competency of the different branches of government: “Congress surely has both wisdom and experience in these matters that is far superior to ours.” Id. at 650, 116 S.Ct. 2309. Moreover, one judge sitting on the Sixth Circuit has pointed out that Buckley was “decided on a slender factual record” and that a fuller record might satisfy the constitutional requirement that expenditure limits be narrowly tailored to a compelling interest. Kruse, 142 F.3d at 919 (Cohn, J., concurring); cf. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 13-27, at 1133 n.1 (2d ed. 1988) (“One consequence of th[e] expedited review [in Buckley] was that the Supreme Court, working in a factual vacuum, was forced to indulge in more than a little empirical speculation about such issues as the circumvention of expenditure limits and the impact of those limits on campaign speech.“); Burt Neuborne, One Dollar-One Vote: A Preface to Debating Campaign Finance Reform, 37 WASHBURN L.J. 1, 30 (1997) (“Since the Buckley Court‘s judgment was made without the benefit of a factual record, critics have argued that it is time for a factually based study of the potential for corruption inherent in large, independent expenditures.“); David R. Lagasse, Note, Undue Influence: Corporate Political Speech, Power and the Initiative Process, 61 BROOK. L. REV. 1347, 1357 (1995) (“The Supreme Court granted certiorari in Buckley v. Valeo without either party to the action having the opportunity to develop a strong factual record on which the Court could base its ultimate decision. Thus, the Court faced the issue of Congress‘s power to regulate campaign expenditures purely on theoretical grounds, without the benefit of developing an adequate factual record.“) (citing BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 469-70 (1979)).
The academic literature also contains persuasive analyses that our post-Buckley understanding of campaign finance requires a careful evaluation of the evidence in support of expenditure limits. See, e.g., Richard Briffault, Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buckley Era?, 85 MINN. L. REV. 1729, 1765-69 (2001) (arguing that fair and competitive elections may require some form of expenditure limitations); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 COLUM. L. REV. 1281, 1288-89 (1994) (noting that changed circumstances and never-before considered governmental interests, including the protection of candidates’ time, might be sufficiently compelling to support expenditure limits).
Although we recognize that there is considerable dissatisfaction with Buckley‘s approach, we still premise our conclusions on the assumption that Buckley continues to govern the constitutional review of campaign finance laws. However, we do not accept an unyielding interpretation of Buckley that expenditure limits are per se unconstitutional, because such a static approach to Buckley‘s import would require us to ignore not only Buckley‘s own language, but also over three decades of experience as to how the campaign funds race has affected public confidence and representative democracy.7 In sum, like the federal expenditure limitations considered in Buckley, Act 64‘s expenditure limitations rise or fall on whether they have been narrowly tailored to a compelling governmental interest. It is to that question that we now turn.
B. The Requisite Level of Scrutiny
As a regulation of the amount that a candidate can spend on speech made “for the purpose of influencing an election,” Vermont‘s expenditure limits are a content-based restriction on speech. See Burson v. Freeman, 504 U.S. 191, 197, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (treating election provision as content-based because “whether individuals may exercise their free speech rights ... depends entirely on whether their speech is related to a political campaign“).8 “Content-based regulations are presumptively invalid,” R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), and are subject to strict scrutiny. See Austin, 494 U.S. at 657, 110 S.Ct. 1391 (“The statutory restriction of [political] expenditures ... must be justified by a compelling state interest and must be narrowly tailored to serve that interest.“); Buckley, 424 U.S. at 44-45, 96 S.Ct. 612 (noting that expenditure limits must satisfy “exacting scrutiny” and be “narrowly tailored“). Under this test, “the government must show that its regulation is necessary — that is, be the least restrictive means — to achieve a compelling state interest.” United States v. Playboy Entm‘t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
In the context of expenditure limits, then, the level of scrutiny applied is akin to the “strict scrutiny” standard frequently employed in the equal protection context, in terms of the required degree of “fit” between means and ends. Cf. Guido Calabresi, Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. Rev. 80, 112-13 n.94 (citing cases) (noting that, traditionally, judicial review has been at its strongest in protecting against infringement on First Amendment rights). Our application of this standard is informed both by the particular First Amendment right implicated by the challenged restrictions, as well as by the degree of deference owed to the supporting legislative findings.
Turning to the first of these factors, there is no doubt that “[p]olitical speech is the primary object of First Amendment protection.” Shrink, 528 U.S. at 410-11, 120 S.Ct. 897 (Thomas, J., dissenting). Moreover, in our representative democracy, the free exchange of political information “should receive the most protection when it matters the most — during campaigns for elective office.” Id. at 411, 120 S.Ct. 897. However, the precise object of First Amendment protection in this case, for most plaintiffs, is the ability to spend money on political speech — not the speech itself. See Shrink, 528 U.S. at 400, 120 S.Ct. 897 (Breyer, J., concurring) (money is not speech; it ”enables speech“). To be sure, the Supreme Court has consistently held that the expenditure of money is so critical in enabling political speech in today‘s mass society, that it should receive the same First Amendment protection as the speech itself. We do not question this proposition — and indeed apply it in this case — but, particularly in light of at least one Supreme Court Justice‘s willingness to rethink the money equals speech equation (J. Stevens concurring in Shrink, 528 U.S. at 398, 120 S.Ct. 897), think it important to define the protected interest as precisely as possible.
Although most of the plaintiffs are persons or organizations that want to spend money on speech, plaintiff Marcella Landell is a voter who wants to receive political speech. Her First Amendment right to receive such speech is the equivalent of the right of the speakers. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (the First Amendment protection afforded is to “the communication, to its source and to its recipients both“). As Landell describes her interest in her brief, she “does not wish her ability to cast a wise and informed vote to be restricted by the State of Vermont imposing a direct barrier on the amount of candidate speech she may receive.” Restrictions of political speech that “hamstring[ ] voters seeking to inform themselves about the candidates and the campaign issues” are unconstitutional. Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). Plaintiffs argue that this high level of protection, as applied in Buckley, dictates that the expenditure limit provision must automatically be struck down.
On the other hand, Vermont appears to argue that deference to the legislature — on whether the interests asserted in favor of expenditure limits are compelling, and whether expenditure limits are necessary to achieve these goals — is warranted. Vermont cites several Supreme Court cases in support of its view of legislative deference, including Federal Election Comm‘n v. National Right to Work Comm., 459 U.S. 197, 210, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (it is improper to “second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared“); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 665, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (Turner I) (“courts must accord substantial deference to the predictive judgments” of the legislature); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 196, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (Turner II) (“We owe Congress’ findings an additional measure of deference out of respect for its authority to exercise the legislative power.“); and Walters v. National Association of Radiation Survivors, 473 U.S. 305, 330-31 n. 12, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985) (Congress’ factual findings are entitled to “a great deal of deference, inasmuch as Congress is an institution better equipped to amass and evaluate the vast amounts of data bearing on” an issue). Indeed, the District Court concluded that “[a]lthough legislative findings are not entirely isolated from review,” it was “required to exercise considerable deference to such findings.” 118 F.Supp.2d at 476 (citing Turner II). Accordingly, the court adopted the fifteen official findings excerpted supra and in the District Court opinion, but made clear that it was also considering the other evidence presented at trial. Id. at 468-74.
As to plaintiffs’ position, we disagree that the high level of protection accorded political speech or the money enabling it dictates that the provision must automatically be struck down. Cf. McConnell, 540 U.S. at ___, 124 S.Ct. at 706 (“Many years ago we observed that `[t]o say that Congress is without power to pass appropriate legislation to safeguard ... an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.‘“) (quoting Burroughs v. United States, 290 U.S. 534, 545, 54 S.Ct. 287, 78 L.Ed. 484 (1934)); Storer v. Brown, 415 U.S. 724, 729-30, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (compelling interest in the integrity and stability of the election process means that “every substantial restriction on the right to vote or to associate” should not automatically be invalidated). In our view, this level of protection is the starting point, not the endpoint, for scrutiny of Vermont‘s expenditure limits.
Indeed, the Supreme Court has been clear in its rejection of the view that “strict scrutiny is `strict in theory, but fatal in fact.‘” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (quoting Fullilove v. Klutznick, 448 U.S. 448, 519, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (Marshall, J., concurring)) (explaining that “[w]hen race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the `narrow tailoring’ test this Court has set out in previous cases“). This observation has proven true in the First Amendment context, as the Supreme Court has validated a number of electoral regulations against First Amendment challenge even while applying strict scrutiny. See, e.g., Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion) (upholding state ban on electioneering activity near polling places); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) (upholding statute restricting independent expenditures by corporations on campaigns). Careful analysis is particularly important in applying strict scrutiny, where, as Justice Breyer has put it, “a law significantly implicates competing constitutionally protected interests in complex ways.” Shrink, 528 U.S. at 402, 120 S.Ct. 897 (Breyer, J., concurring). As we will explain, this is a case where “constitutionally protected interests lie on both sides of the legal equation,” preventing a simple equation of strict scrutiny with constitutional infirmity. Id. at 400, 120 S.Ct. 897; see also, e.g., Burson, 504 U.S. at 199, 112 S.Ct. 1846 (plurality opinion) (recognizing compelling interest in preserving integrity of electoral process); id. at 213, 112 S.Ct. 1846 (Kennedy, J., concurring) (“[T]here is a narrow area in which the First Amendment permits freedom of expression to yield to the extent necessary for the accommodation of another constitutional right.“); Storer, 415 U.S. at 736, 94 S.Ct. 1274 (allowing some restrictions on ballot access in order to further the “State‘s interest in the stability of its political system“).
Nor should we adopt total legislative deference as the appropriate level of scrutiny. Deference to legislative findings may well be warranted on certain issues relating to the constitutionality of election-related laws, such as the precise level of contribution limits, as in Buckley, 424 U.S. at 30, 96 S.Ct. 612, or whether 100 feet, as opposed to 50 or 75 feet, is an adequate radius surrounding a polling place to ban electioneering, as in Burson, 504 U.S. at 209-10, 112 S.Ct. 1846. Some degree of deference on the issue of whether there are state interests that justify legislative changes to the State‘s electoral system may also be appropriate. See, e.g., Federal Election Comm‘n v. Beaumont, 539 U.S. 146, 155, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) (“[D]eference to legislative choice is warranted particularly when Congress regulates campaign contributions, carrying as they do a plain threat to political integrity and a plain warrant to counter the appearancе and reality of corruption and the misuse of corporate advantages.“). But total deference is not warranted on the core questions of whether those interests are truly compelling enough, in a constitutional sense, to justify the expenditure limits, and whether this regulation places an undue burden on the First Amendment rights of those who bring this challenge. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 519, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality opinion) (“[I]t has been this Court‘s consistent position that democracy stands on a stronger footing when courts protect First Amendment interests against legislative intrusion, rather than deferring to merely rational legislative judgment in this area.“); Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939) (“This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties.... [T]he delicate and difficult task falls upon the courts ... to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.“).
We read the District Court opinion as consistent with this view. It gives “considerable deference” to the legislative findings on the need for the law only, but not to the legislature‘s assessment of whether its solution is narrowly tailored. Cf. Regents of University of California v. Bakke, 438 U.S. 265, 299, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Powell, J.) (“Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, but the standard of justification will remain constant“), quoted in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224-25, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). This approach is consistent with Justice Breyer‘s concurrence in Shrink, where he indicated that the Court should “defer to [the Missouri legislature‘s] political judgment that unlimited spending threatens the integrity of the electoral process,” but not with respect to whether “its solution, by imposing too low a contribution limit, significantly increases the reputation-related or media-related advantages of incumbency and thereby insulates legislators from effective electoral challenge.” 528 U.S. at 403-04, 120 S.Ct. 897.
Although we bear in mind Justice Breyer‘s observations in Shrink, we cannot adopt his conclusion, in light of the extensive Supreme Court precedent to the contrary, that the interests must be balanced here, and that there is therefore “no place” for a “strong presumption against constitutionality of the sort often thought to accompany the words `strict scrutiny.‘” Id. at 400, 120 S.Ct. 897. Such a presumption is proper, at least until the Supreme Court tells us otherwise, and it means that the burden of persuasion at trial was on the State to defend Act 64 — i.e., to establish that there was a compelling state interest to support the expenditure limit provision and that the provision was narrowly tailored to advance that interest. See Burson, 504 U.S. at 226, 112 S.Ct. 1846 (Stevens, J., dissenting, joined by O‘Connor and Souter) (noting that “a core premise of strict scrutiny” is that “the heavy burden of justification is on the State“). But this burden does not excuse the courts from actually applying the scrutiny that the First Amendment demands, and the State of Vermont deserves.
Therefore, although we do not question the validity of the factual findings developed by the legislature in support of Act 64,9 our system of judicial review provides plaintiffs the opportunity to present competing evidence, assigns to the District Court the responsibility for making findings of fact and conclusions of law after weighing the evidence, and leaves to the Court of Appeals the independent responsibility to assess the legal significance of these factual findings. This responsibility is particularly important here, where, as plaintiffs claim, complete deference to the legislature could “risk such constitutional evils as permitting incumbents to insulate themselves from effective electoral challenge.” Shrink, 528 U.S. at 402, 120 S.Ct. 897 (Breyer, J., concurring).
Put differently, this level of scrutiny is a serious barrier for expenditure limits, but it is not impenetrable. Rather, an independent court must be convinced that the legislature was serving the people‘s interest and not its own. See, e.g., Burson, 504 U.S. at 213, 112 S.Ct. 1846 (Kennedy, J., concurring) (discussing the use of the compelling-interest test as “one analytical device to detect, in an objective way, whether the asserted justification is in fact an accurate description of the purpose and effect of the law“), quoted in R.A.V. v. City of St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Cf. Croson, 488 U.S. at 493, 109 S.Ct. 706 (noting in the equal protection context that “the purpose of strict scrutiny is to `smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool,” with the narrow tailoring analysis helping to ensure that there is “little or no possibility that the motive for the classification was illegitimate“).
C. Compelling Interests
In Shrink, the Court indicated that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” 528 U.S. at 391, 120 S.Ct. 897. For example, the Court in Shrink accepted a relatively minimal evidentiary showing of Missouri‘s interest in preventing corruption or the appearance thereof, because in its view, there was “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.” Id. at 395, 120 S.Ct. 897; see also McConnell, 540 U.S. at ___, 124 S.Ct. at 661 (“The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible.“). Similarly, the Shrink Court relied in large part on Buckley‘s conclusion on the fit between contribution limits and the anti-corruption interest, to decide that the contribution limits in Missouri were sufficiently tailored and not “so different in kind as to raise essentially a new issue about the adequacy of the Missouri statute‘s tailoring to serve its purposes.” 528 U.S. at 395, 120 S.Ct. 897.
With Shrink‘s guidance on “the quantum of empirical evidence needed” in mind, we turn then to the interests asserted by Vermont in support of Act 64‘s expenditure limits to assess whether any of the interests might be sufficiently compelling to support this regulation of political speech. Vermont offers five interests that it argues are sufficiently compelling to support the spending limits on candidates: (1) “avoiding the reality and appearance of corruption in elective politics and government“; (2) “assur[ing] that candidates and officeholders will spend less time fund-raising and more time interacting with voters and performing official duties“; (3) promoting “electoral competition and in protecting equal access to political participation“; (4) “bolster[ing] voter interest and engagement in elective politics“; and (5) “enhanc[ing] the quality of political debate and voters’ understanding of the issues.”
Defendants-intervenors appear to rely primarily on the first two of these interests to support the spending limits — describing those interests as (1) deterring corruption and the appearance of corruption; and (2) permitting candidates and officeholders to spend less time fund-raising and more time interacting with voters and performing duties. Defendants-intervenors also argue that the third interest asserted by the State — “protecting political equality” — should be recognized as an “additional basis” to support the spending limits on candidates.10
We now consider the interests asserted by the defendants.
1. Anti-Corruption
The Supreme Court has recently clarified that the anti-corruption interest, in the campaign finance context, is “not confined to bribery of public officials, but extend[s] to the broader threat from politicians too compliant with the wishes of large contributors.” Shrink, 528 U.S. at 389, 120 S.Ct. 897; see also McConnell, 540 U.S. at ___, 124 S.Ct. at 660. Moreover, the Shrink Court reiterated that, in addition to the actual influence of campaign contributions on politicians’ behavior, the perception of corruption was an important part of this compelling state interest because it “could jeopardize the willingness of voters to take part in democratic governance.” Shrink, 528 U.S. at 390, 120 S.Ct. 897 (citing United States v. Mississippi Valley Generating Co., 364 U.S. 520, 562, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961) (democracy works “only if the people have faith in those who govern“)).
In terms of “the quantum of empirical evidence needed,” we note that although the interest in avoiding corruption and the appearance thereof is well-established as sufficiently important in the context of contribution limits, the rejection in Buckley of the anti-corruption interest as a constitutional justification for spending limits dictates the need for considerable evidence to demonstrate that unlimited spending is part of the corruption problem, and that spending limits are a necessary and plausible solution.
In this case, the District Court found that Vermont had proven that the reality and perception of corruption in its political system was a legitimate concern. Specifically, it found that “[e]vidence at trial overwhelmingly demonstrated that the Vermont public is suspicious about the effect of big-money influence over politics,” and “it appears they have reason to feel that way,” 118 F.Supp.2d at 468, concluding that “[t]he record suggested that large contributors often have an undue influence over the legislative agenda.” Id. In light of Shrink, this “undue influence” over the legislative agenda is properly considered part of the anti-corruption interest. See 528 U.S. at 389, 120 S.Ct. 897.11 Fоr the reasons that follow, our independent review of the evidence supports these findings by the District Court.
First, citizens in Vermont have consistently demonstrated a belief that the attention of their public representatives may be available for a price. As a result, public faith in the democratic system has declined. The General Assembly described the effects of a need to raise ever growing amounts of funds: “Robust debate of issues, candidate interaction with the electorate, and public involvement and confidence in the electoral process have decreased as campaign expenditures have increased.”
Testimony by Vermont‘s elected officials revealed that this disenchantment and loss of public faith played a critical role in their belief that expenditure limits are necessary. One sponsor of Act 64, Representative Karen Kitzmiller, presented the Vermont House of Representatives with evidence showing that 94 percent of Vermonters believe that too much money is spent in politics, and 76 percent believe that ending private contributions would “reduce the power of special interest groups.” Another state legislator, Gordon Bristol, testified at trial about his concern “about the regular guy on the street, and I think if they feel that candidates are spending a modest amount of money, that they are going to get candidates in there who are representing issues and not a special interest. . . .” According to another legislator, citizens have reported that they do not vote because “`[a]ll the big money controls everybody in Montpelier anyways.’ . . . They think it‘s all wrapped up and that the special interests control it and, quite frankly, they aren‘t that wrong.” (testimony of Elizabeth Ready). Another legislator said: “[I]t‘s the monied interests that control the process, and that cynicism ... it keeps people from participating, from engaging. . . .” (testimony of Donald Hooper).
Second, because of the limited number of campaign contributors and the constant concern of being outspent, candidates and elected officials are significantly influenced in deciding positions on issues by a belief that they are unable to oppose too many special interests, no matter how unpopular, because they will be cut off from funds. The General Assembly described the effects of a need to raise ever growing amounts of funds: “Increasing campaign expenditures require candidates to seek and rely on a smaller number of larger contributors, often outside the state, rather than a large number of small contributors.”
Third, and perhaps most perniciously, the demands of fundraising also affect the behavior of elected officials in the context of agenda-setting, since officials pay attention to which contributor “wants what to happen in terms of language of the bill, in terms of calendaring the bill, in terms of writing the rules.” (testimony of Peter Smith). That same witness also noted that a crucial part of any deliberation on a bill involves speculation about the reaction of contributors because they control the money: politicians are forever asking “what‘s the industry position, what‘s the union position, what‘s — you know, and what they‘re talking about is where [is] the money behind the issue, what does the money want, where is the conflict between and among the power brokers.” Senator Rivers testified that campaign contributors, by virtue of their role as contributors, can dominate the attention of party leadership or a committee chair, and thereby influence the legislature‘s agenda. In her words, “there is kind of an atmosphere that is created that there is [an] assumption that phone calls [of contributors] will get taken and [their] policy issues will be considered.” Another senator, Elizabeth Ready, recognized that “there is an agenda out there that is pretty much set by folks that are not elected.”12 Candidates, often with great reluctance, accept the bargain with contributors so that they do not lose large sources of potential fundraising for the “arms race” in which they feel compelled to participate.
The evidence at trial established that candidates for public office rely on special interests for financial support, produced directly or by way of “bundling” smaller contributions from a particular company or industry.13 The Buckley Court seemed to assume that many small contributions could not raise the specter of corruption. “If a senatorial candidate can raise $1 from each voter, what evil is exacerbated by allowing that candidate to use all that money for political communication?” 424 U.S. at 56 n. 64, 96 S.Ct. 612 (internal quotation marks omitted). But the reality of campaign financing in Vermont is a far cry from this idyllic vision of political fundraising, in large part because not every voter has the financial ability to participate by giving campaign contributions. “[T]he average Vermonter has been, to some degree, disenfranchised because the average Vermonter cannot afford the price of admission.” Senate J. of the State of Vt., at 1338 (Biennial Session, 1997) (statement of William T. Doyle).
Vermont has a compelling interest in safeguarding its political process from such contributor dominance, because it corrupts the process for achieving accessibility and accountability of state officials and candidates. The evidence at trial demonstrated that money — and the special interests that wield it — has a great influence on candidate behavior in Vermont, at the expense of the electorate as a whole, since candidates depend on it in order to run for office. Where access and influence can be bought, citizens are less willing to believe that the political system represents the electorate, exacerbating cynicism and weakening the legitimacy of government power. See Jacobus v. Alaska, 338 F.3d 1095, 1113 (9th Cir. 2003) (describing the phenomenon of “access-peddling” and explaining that it “creates a danger of corruption and the appearance of corruption“). The accessibility and accountability of public officials — and the public‘s faith that Vermont‘s government is accessible and accountable — are fundamental to any democratic system.
In our view, such influence of campaign contributors is pernicious because it is bought. Certain private citizens and organizations should not be given greater access to public office holders — and thus greater influence — on account of those citizens’ ability and willingness to pay for candidates’ campaigns. Even with contribution limits, the arms race mentality has made candidates beholden to financial constituencies that contribute to them, and candidates must give them special attention because the contributors will pay for their campaigns. Quid pro quo corruption is troubling not because certain citizens are victorious in the legislative process, but because they achieve the victory by paying public officials for it.
In short, we believe, based on the District Court‘s findings and our own independent review of the record, that Vermont has proven the strength of this interest, and its relationship to unlimited campaign spending. And we believe that the factual record developed by Vermont in support of the anti-corruption interest, through the legislative process and at trial, may be sufficient to distinguish Buckley. Cf. Colorado Republican I, 518 U.S. at 617-18, 116 S.Ct. 2309 (plurality opinion) (indicating that “the lack of coordination between the candidate and the source of the expenditure... prevents us from assuming, absent convincing evidence to the contrary, that a limitation on political parties’ independent expenditures is necessary to combat a substantial danger of corruption of the electoral system.“) (emphasis added); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 863-64, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (citing West Coast Hotel and Brown v. Board of Education as examples of “applications of constitutional principle to facts as they had not been seen by the Court before“). Nonetheless, given Buckley‘s holding rejecting the anti-corruption interest as inadequate to support the expenditure limits at issue in that case, we are reluctant to conclude that the same general interest, standing alone, is sufficiently compelling to support Act 64‘s expenditure limits. See Buckley, 424 U.S. at 46-48, 96 S.Ct. 612; see also McConnell, 540 U.S. at ___, 124 S.Ct. at 647. We turn then to the second interest asserted by defendants.
2. Time Protection
Vermont also submits that it has a compelling interest in “assur[ing] that candidates and officeholders will spend less time fundraising and more time interacting with voters and performing official duties.” Indeed, the District Court found that “the need to solicit money from large donors at times turns legislators away from their official duties.” 118 F.Supp.2d at 468. The District Court also indicated that the State proved that this concern exists, and that Vermont‘s expenditure limits addressed this interest, among others. Id. at 482-83.
Again, we are mindful of Shrink‘s guidance that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.”14 528 U.S. at 391, 120 S.Ct. 897. On this score, the “time protection” rationale has been recognized as compelling, although not in the context of candidate spending limits. Indeed, the Buckley Court considered this interest in assessing, and deemed it sufficiently important to support, the public financing scheme for Presidential election campaigns — a provision it upheld. See 424 U.S. at 96, 96 S.Ct. 612 (“Congress properly regarded public financing as an appropriate means of relieving major-party Presidential candidates from the rigors of soliciting private contributions“) (citing Senate Rep. No. 93-689); 424 U.S. at 91, 96 S.Ct. 612 (“Congress was legislating for the `general welfare’ . . . to free candidates from the rigors of fundraising.“). See also Republican Nat‘l Committee v. Federal Election Comm‘n, 487 F.Supp. 280, 284-86 (S.D.N.Y.) (three-judge District Court) (upholding constitutionality of expenditure limits as condition of accepting presidential public financing in part on ground that it would “give candidates the opportunity to lessen the `great drain on (their) time and energies’ required by fundraising `at the expense of providing competitive debate of the issues for the electorate‘“) (quoting Senate Rep. No. 93-689), aff‘d mem., 445 U.S. 955, 100 S.Ct. 1639, 64 L.Ed.2d 231 (1980).
Moreover, other circuits have more recently recognized the compelling nature of the time-protection interest in similar contexts. See Rosenstiel v. Rodriguez, 101 F.3d 1544, 1553 (8th Cir. 1996), cert denied, 520 U.S. 1229, 117 S.Ct. 1820, 137 L.Ed.2d 1028 (1997) (upholding Minnesota‘s voluntary public financing scheme because the government has a compelling interest in reducing “the time candidates spend raising campaign contributions, thereby increasing the time available for discussion of the issues and campaigning“); Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 39 (1st Cir. 1993) (holding that statute survives exacting scrutiny because Rhode Island has “a valid interest in having candidates accept public financing because such programs `facilitate communication by candidates with the electorate’ [and] free candidates from the pressures of fundraising.“) (quoting Buckley, 424 U.S. at 91, 96 S.Ct. 612). Indeed, the Rosenstiel court determined that it is “well settled” that this interest is compelling. 101 F.3d at 1553 (collecting cases).
The Buckley Court, in determining that the expenditure limits in that case were unconstitutional, alluded to this time-protection interest only in passing. 424 U.S. at 91, 96, 96 S.Ct. 612 (mentioning generally Congress’ desire to relieve political candidates from the “rigors” of soliciting and fundraising); see also Blasi, supra, at 1285-86 & n. 15 (“[D]uring the public and legislative debates that led to the passage in 1974 of mandatory spending limits for congressional races, and during the Buckley litigation which resulted in the invalidation of those limits, candidate time protection was almost wholly ignored as a justification for campaign spending limits.“). Only Justice White, concurring in part and dissenting in part, observed that imposing “expenditure ceilings” would “ease the candidate‘s understandable obsession with fundraising, and so free him and his staff to communicate in more places and ways unconnected with the fundraising function.” Buckley, 424 U.S. at 264-65, 96 S.Ct. 612 (“There is nothing objectionable — indeed it seems to me to be a weighty interest in favor of the provision — in the attempt to insulate the political expression of federal candidates from the influence inevitably exerted by the endless job of raising increasingly large sums of money.“). One commentator explains that “candidate time protection was not at the center of either the reform agenda or the constitutional analysis” because Buckley was decided “[b]efore the advent of pervasive war chests and candidate-PAC merchandizing bazaars.”15 Blasi, supra, at 1287.
Plaintiffs argue that this interest is no different than the goal of reducing the “skyrocketing costs of political campaigns,” rejected by Buckley as an insufficiently compelling interest to support expenditure limits. 424 U.S. at 57, 96 S.Ct. 612. The Sixth Circuit agreed in Kruse, reasoning that “[t]he need to spend a large amount of time fundraising is a direct outgrowth of high costs of campaigns. However, because the government cannot constitutionally limit the cost of campaigns, the need to spend time raising money, which admittedly detracts an officeholder from doing her job, cannot serve as a basis for limiting campaign spending.” 142 F.3d at 916-17. We are unpersuaded by this reasoning.
Indeed, we think the language of Buckley, as well as an examination of the Buckley briefs, oral argument, and subsequent commentary from judges and scholars, precludes such an interpretation. In its discussion of the federal campaign expenditure ceilings at issue in Buckley, the Buckley Court explained that the limits “appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns,” and cited the statistics put forward by appellees and appellants on how the percentage increase in campaign spending in recent years compared to the rise in the consumer price index, gross national product, and total expenditures for commercial advertising over the same time period. 424 U.S. at 57, 96 S.Ct. 612. The Court concluded that, regardless of the import of such statistics, “the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns.” Id. (emphasis added). Particularly in light of the recent statements of three Justices indicating that this “time protection” rationale may be a compelling interest, see supra at 108 (quoting Shrink, 528 U.S. at 409, 120 S.Ct. 897 (Kennedy, J., dissenting)); and Colorado Republican I, 518 U.S. at 649-50, 116 S.Ct. 2309 (Stevens, J., joined by Ginsburg, J., dissenting), we see no reason to read Buckley more broadly than its language indicates.
At trial, Vermont presented powerful evidence concerning the time pressures which the prospect of unlimited expenditures places on candidates for office. In particular, there is strong evidence that unlimited expenditures have compelled candidates to engage in lengthy fundraising in order to preempt the possibility that their political opponents may develop substantially larger campaign war chests. The Vermont General Assembly found that such fundraising by candidates requires an “inordinate[] amount of time.”
Although there may be no inherent problem with candidates competing to raise large quantities of funds, the evidence in Vermont is clear that the pressure to raise large sums of money greatly affects the way candidates and elected officials spend their time. Special interests, well placed to take advantage of candidates’ fear of losing this fundraising war, dominate candidates’ time and thereby have been able to exercise substantial control over the informаtion that passes to candidates. They do this by increasingly consuming the opportunities candidates have for meeting with constituent groups and forcing candidates to choose contributors over private citizens who make small or no contributions. This command of available time, inherent in endless fundraising, drastically reduces opportunities that candidates have to meet with non-contributing citizens.16
Legislators explained at trial that officials are more likely to return donors’ phone calls. “If I have only got an hour at night when I get home to return calls, I am much more likely to return [a donor‘s] call then I would [a non-donor‘s] .... [W]hen you only have a few minutes to talk, there are certain people that get access.” (testimony of Elizabeth Ready). A former candidate for Congress and current lobbyist in Vermont, Anthony Pollina, described the process:
[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....
Nor is this just a theoretical concern. One widely reported case involved the differing access that state officials granted to interested groups as the state government considered whether to label milk produced using genetically engineered hormones. Major dairy companies, who in the past had been contributors, were able to arrange meetings with critical state leaders, whereas local farmer organizations that lacked importance as contributors could not arrange similar meetings.
By giving money, contributors “haven‘t bought the person, but they have certainly bought a piece of that time there where they have that person‘s attention.” (testimony of Elizabeth Ready). Even if candidates receive valuable information during every hour spent fundraising, their time is being controlled by those with campaign cash, and this effect is corrosive. The Vermont legislature considered one article in the Burlington Free Press stating that “[m]oney not only threatens to corrupt the process, it sabotages the political dialogue as well. Candidates spend too much time begging for dollars and too little time talking issues....” See Democratic Process Relies on Reform, Burlington Free Press, Oct. 6, 1997 at 6A.
Public officials testified at trial that the financial necessity imposed by fundraising, and bred by the “arms race” mentality in campaigns with unlimited spending, requires that elected officials spend time with donors rather than on their official duties. One state Senator testified that legislators have to spend time at party fundraising events to give donors access to elected officials. (testimony of Cheryl Rivers). Another Senator explained how spending limits would affect her time:
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.
Simply put, every hour spent drumming up financial contributions is an hour that cannot be spent independently studying legislative proposals or meeting with constituents who may not be likely donors. And the public understands this reality: at trial, Vermont presented survey data that 85% of Vermonters are concerned that “political fundraising took away time from important government business.” (testimony of Celinda C. Lake).
Indeed, although we do not balance interests, the fact that this time-protection interest is itself fundamental to our representative democracy, and related to First Amendment values, cannot be ignored. As one First Amendment scholar put it, the quality of democratic representation suffers “when legislators continually concerned about re-election are not able to spend the greater part of their workday on matters of constituent service, information gathering, political and policy analysis, debating and compromising with fellow representatives, and the public dissemination of views.” Blasi, supra, at 1282-83.
Unfortunately, without spending limits, the contribution limits would exacerbate the time problem. A lobbyist who supports Act 64 noted that contribution limits coupled with unlimited expenditures would require that candidates “continue to spend more time and energy raising those smaller contributions to see who could raise the most money and outspend their opponent and therefore win the race. So the spending limits, tied to the contribution limits, create a situation where the candidates simply don‘t have to spend as much time and energy raising money.... [The limits] change the way campaigns are run, in a sense, and make them more people oriented or voter oriented as opposed to fundraising oriented....” (testimony of Anthony Pollina). Cf. McConnell, 540 U.S. at ___, 124 S.Ct. at 656 (“The `overall effect’ of dollar limits on contributions is `merely to require candidates and political committees to raise funds from a greater number of persons.‘“) (quoting Buckley, 424 U.S. at 21-22, 96 S.Ct. 612). That same lobbyist also explained that with contribution limits alone, “the unfortunate thing is that candidates would feel compelled to look for those other sources because they would still be trying to outspend... their opponents, and that would cause them to then spend more time and more energy into looking for those other sources of funding. It might then encourage the bundling practices that were referred to earlier, and ... it would not address the problem that we are hoping to address.” (testimony of Anthony Pollina).17
In sum, our independent review of the evidence adduced at trial supports the District Court findings that “the Vermont public perceives, legitimately, that candidates frequently spend an excessive amount of time fundraising and not enough time interacting with voters,” and that “the need to solicit money from large donors at times turns legislators away from their official duties.” 118 F.Supp.2d at 468, 470. So long as the danger remains that a political opponent might severely outstrip a candidate‘s financial resources, candidates have continued to feel it necessary to raise ever larger sums of money. For elected officials, this will mean giving more time to contributors over non-contributors, and expending more effort on relatively generous contributors over less important ones.
3. Conclusion: Two Compelling Interests
Faced with this evidence and the resulting findings of the District Court, we conclude that Vermont has established at least two interests in maintaining campaign expenditure limits: preventing the reality and appearance of corruption, and protecting the time of candidates and elected officials. In this case, Vermont‘s well-documented interest in time-protection is particularly compelling when considered in tandem with the State‘s firmly-rooted interest in preventing corruption (or the appearance thereof). Cf. Miller v. Johnson, 515 U.S. 900, 921, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (leaving open question whether “compliance with the [Voting Rights] Act, standing alone, can provide a compelling interest independent of any interest in remedying past discrimination“).18 Regardless of whether one finds Vermont‘s justifications novel, the quantum of evidence demonstrating the depth of the problem in Vermont campaigns is great. The drive for campaign funds has created a situation where candidate time is effectively for sale. As a democracy, Vermont has a compelling interest in ensuring that its representatives’ time is not available only — or mostly — to the people who are willing and able to pay for it. Fundamentally, Vermont has shown that, without expenditure limits, its elected officials have been forced to provide privileged access to contributors in exchange for campaign money. Vermont‘s interest in ending this state of affairs is compelling: the basic democratic requirements of accessibility, and thus accountability, are imperiled when the time of public officials is dominated by those who pay for such access with campaign contributions.
Because we conclude that Vermont has established two interests that, taken together, are sufficiently compelling to support its expenditure limits, we need not consider the other interests asserted by the State. Specifically, we need not consider whethеr the interest in encouraging electoral competition and protecting the ability of non-wealthy Vermonters to run for state office in Vermont is sufficiently compelling. And we do not need to reach the question of whether Vermont has sufficiently compelling, independent interests in (1) bolstering voter interest and engagement in elective politics; and (2) encouraging public debates and other forms of meaningful constituent contact in place of the growing reliance on 30-second commercials. We do note that the first of these interests is properly considered part of the anti-corruption interest, and the second relates to the time-protection rationale.
D. Narrow Tailoring
Our analysis next requires a determination as to whether the particular limits are narrowly tailored to serve the compelling interests offered. Because mandatory expenditure limits are so rare, and the Supreme Court and federal courts of appeals that have considered the constitutionality of expenditure limits have found no compelling interests sufficient to support them, no court has reached the narrow tailoring question in this context. Thus, we are in largely uncharted waters.
Plaintiffs argue that even if there is a compelling interest to support Act 64‘s spending limits, the spending limits are not narrowly tailored. They argue that the spending limits are too serious an impingement on First Amendment rights, without significantly advancing the interests asserted by the State. Because the District Court held that mandatory spending limits are per se unconstitutional under Buckley, it never fully reached the narrow tailoring inquiry, although it did address the subsidiary question of whether candidates could run effective campaigns under the rubric of “narrow tailoring.” 118 F.Supp.2d at 470-72.
The parties present the narrow tailoring issue as whether the expenditure limits are sufficiently high to allow candidates to run effective campaigns. Indeed, in our initial consideration of this case, we assumed that the parties were correct in focusing the narrow tailoring question on the ability of a candidate to run an “effective campaign.” We now believe, however, that the narrow tailoring inquiry is broader, and that answering the question requires remand to the District Court. We write further to explain the nature of the narrow tailoring inquiry required.
The narrow tailoring inquiry examines the “fit” between means and ends. Here, the question is whether mandatory spending limits will significantly advance the State‘s time-protection and anti-corruption interests, without severely burdening the First Amendment rights of the plaintiffs. “Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation.” Federal Election Comm‘n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 265, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986).
In order to satisfy the “narrow tailoring” standard, the government must also prove that the mechanism chosen is the least restrictive means of advancing that interest. See, e.g., Playboy Entertainment Group, Inc., 529 U.S. at 816, 120 S.Ct. 1878 (“When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government‘s obligation to prove that the alternative will be ineffective to achieve its goals.“); Universal City Studios, Inc. v. Corley, 273 F.3d 429, 450 (2d Cir. 2001) (“Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available.“).19 When the First Amendment demands strict scrutiny, “[i]f a less restrictive alternative would serve the Government‘s purpose, the legislature must use that alternative.” Playboy Entertainment Group, 529 U.S. at 813, 120 S.Ct. 1878; Sable Communications of Cal., Inc., v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) (“The Government may ... regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.“); see also Boos v. Barry, 485 U.S. 312, 329, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (concluding that government regulation at issue was not narrowly tailored because “a less restrictive alternative is readily available“); California Democratic Party v. Jones, 530 U.S. 567, 585-86, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) (observing, in dicta, that California‘s “blanket” partisan primary system was not a narrowly tailored means of furthering asserted state interests because “a nonpartisan blanket primary” would advance the same interests “without severely burdening a political party‘s First Amendment right of association“).
Accordingly, answering the narrow tailoring question requires addressing three different issues: (1) the extent to which the State‘s interests are advanced by the regulation; (2) the extent to which candidates can conduct “effective advocacy” under the limits; and (3) whether the government has proven the absence of less restrictive alternatives that are as effective in advancing its compelling interests, while impinging less on First Amendment rights.
1. Are Vermont‘s time-protection and anti-corruption interests advanced by campaign spending caps?
Plaintiffs argue that the spending limits do not actually advance the interests asserted by the State because the limits are set at the equivalent of current levels of spending, and when considered in combination with the contribution limits, actually force candidates and elected officials to spend more time and attention on fundraising, not less. For the reasons that follow, we disagree and conclude that the spending limits are likely to advance both the time-protection and anti-corruption interests asserted by the State.
First, we do note the apparent tension between seeking to reform the political process by imposing expenditure limits, yet setting limits based on current candidate expenditure patterns in an effort to approximate the spending needs of such candidates. We believe, however, that this tension is more apparent than real. Indeed, plaintiffs’ argument misunderstands the driving force behind the spending limits. The evidence at trial, including the evidence from legislative hearings, indicated the widespread presence of an “arms race” mentality. The record in Vermont demonstrates that often it is this potential of being vastly outspent that creates powerful and deleterious pressures to raise funds. The significance of the spending cap lies not in reducing the amount of money spent on campaigns, but rather in eliminating this potential of being vastly outspent that leads to the “arms race” mentality among candidates and elected officials.
Limiting the arms race promises to have a direct impact on the time of candidates and elected officials. Indeed, the witnesses’ testimony at trial supported the idea that reducing the arms race mentality, spending limits would allow candidates and elected officials to focus more time on issues. One elected official shared her sense of how spending limits will liberate public officials: “[The spending limit] lessens the pressure.... I am not going to be locked away ... in the Democratic Party somewhere or in my own office somewhere making fundraising calls.” (testimony of Elizabeth Ready). Another State Senator, and a sponsor of Act 64, testified that “I would hope that it‘s going to give folks running for office more of an opportunity to go out and engage the voters on the issues.” (testimony of Cheryl Rivers). And William T. Doyle, another senator, testified that without the need to raise such large sums of money “there will be increased time for real debate ... candidates will be able to concentrate more on issues rather than raising public money.”
The “arms race” mentality — and its effect on the behavior of candidates and elected officials — is also quite relevant to the anti-corruption interest, and helps explain why the spending caps also address this “threat from politicians too compliant with the wishes of large contributors.” Shrink, 528 U.S. at 389, 120 S.Ct. 897. The evidence presented at trial indicated that the agenda of candidates and elected officials is affected by the perceived need to raise increasing amounts of funds. Because the sources of campaign money are necessarily limited, candidates are reluctant to alienate potential fundraising constituencies. This affects what issues are put on the agenda, what issues are taken off, and how certain issues are addressed. With spending caps, this calculus changes to a certain extent. For example, with a limit on how much money can be spent, elected officials testified that they would be more willing to take a position which a particular industry opposed. (testimony of State Sen. Cheryl Rivers; testimony of former Congressman and Lt. Governor Peter Smith).
Plaintiffs also argue that Act 64‘s expenditure limits do not advance the interest in reducing the time dedicated to fundraising because Act 64, as a whole, actually forces candidates to devote more time to fundraising, not less. Defendants essentially do not dispute that lower contribution limits increase the amount of time that candidates must spend on fundraising. Instead they argue that this makes the interest in time-protection more compelling, not less, with respect to expenditure limits. In essence, plaintiffs argue that rather than address both the anti-corruption interest with contribution limits, and the anti-corruption and time-protection interests with expenditure limits, the State of Vermont must address just one interest, or else resign itself to the state of affairs post-Buckley. After Buckley, when the Court upheld the contribution limits but not spending limits, Congress’ regulatory scheme fell prey to precisely this problem: candidates have been forced to spend increasing amounts of time fundraising under a regime with contribution limits but no spending limits. We reject the notion that Vermont cannot try to address both interests — anti-corruption and time-protection — at once.
Finally, plaintiffs argue, as the Buckley plaintiffs did for contribution limits, that the “limitations work such an invidious discrimination between incumbents and challengers that the statutory provisions must be declared unconstitutional on their face.” 424 U.S. at 30-31, 96 S.Ct. 612. We agree with plaintiffs — and with our dissenting colleague, see post — that election laws, written by legislators who are, at least in part, necessarily self-interested, must be scrutinized for indications that the limits unduly benefit incumbents or otherwise create dangerous distortions of the electoral system. See Shrink, 528 U.S. at 402, 120 S.Ct. 897 (Breyer, J., concurring) (noting the need for courts to scrutinize legislative judgments that “risk such constitutional evils as, say, permitting incumbents to insulate themselves from effective electoral challenge.“). It should be recognized, however, that a legislature‘s inaction may maintain such barriers more easily than reforms create them, and review of legislation should not amount to a presumption against the fairness of spending limits simply because elected officials have an interest in the reforms they are enacting. See Frank I. Michelman, The Constitutional Question, 24 HARV. J. L. & PUB. POL‘Y 17, 22 (2000).
Indeed, there is considerable evidence in Act 64 itself that incumbent protection was not the legislature‘s motive. Act 64 permits challengers to outspend incumbents, partially neutralizing the advantages that incumbents often enjoy from free media exposure. Specifically, incumbent candidates for statewide office may only spend 85 percent of the amount permitted challengers. See
In sum, because Vermont has demonstrated that the time-protection and anti-corruption interests are advanced, and plaintiffs have not succeeded in demonstrating impermissible legislative motives, we conclude that the State has met its burden on this aspect of narrow tailoring — that the spending limits actually advance these asserted interests.
2. Do spending limits at these levels allow for “effective advocacy“?
We must then turn to the question of whether the spending limits prevent “effective advocacy” by limiting the ability of candidates to communicate adequately with voters, and the ability of voters to receive the information they need to make a choice on election day. This “effective advocacy” requirement is drawn from the caselaw on whether contribution limits are sufficiently high. See McConnell, 540 U.S. at ___, 124 S.Ct. at 655-56 (“Because the communicative value of large contributions inheres mainly in their ability to facilitate the speech of their recipients, we have said that contribution limits impose serious burdens on free speech only if they are so low as to `preven[t] candidates and political committees from amassing the resources necessary for effective advocacy.‘“) (quoting Buckley, 424 U.S. at 21, 96 S.Ct. 612); Shrink, 528 U.S. at 395-96, 120 S.Ct. 897 (same). Although the concept of “effective advocacy” originated with regard to the freedom of association rights rooted in the First Amendment, see NAACP v. Alabama, 357 U.S. 449, 459-60, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the Supreme Court has also used this concept in assessing candidates’ claims that campaign finance regulations place too great a burden on their First Amendment speech rights. In Shrink, for example, one of the plaintiffs was a candidate for statewide office who argued that Missouri‘s contribution limits prevented him from “amassing the resources necessary for effective advocacy.” 528 U.S. at 396, 120 S.Ct. 897 (quoting Buckley). We believe that the use of this “effective advocacy” standard is appropriate here as a threshold consideration in assessing whether the expenditure limits are “narrowly tailored,” as the parties have argued.20
Discussing the nature of this “effective advocacy” analysis in the context of contribution limitations, the Court asked in part whether the limitation was “so radical in effect” as to “drive the sound of a candidate‘s voice below the level of notice.” Shrink, 528 U.S. at 397, 120 S.Ct. 897; see also McConnell, 540 U.S. at ___, 124 S.Ct. at 677. The nature of the “effective advocacy” requirement, then, is that of a constitutional minimum; as long as the regulation does not “drive the sound of a candidate‘s voice below the level of notice,” based on evidence from past campaigns, then the First Amendment is not violated on this ground.
Although the District Court never reached the legal issue of narrow tailoring, it did make findings as to whether “effective campaigns” could be run under the limits. The District Court found that Vermont‘s expenditure limitations reflect the actual cost of running for office in Vermont, would not cause a revolutionary change in campaign spending, and would leave candidates fully capable of conducting effective campaigns. 118 F.Supp.2d at 472. These conclusions are subject to a mixed standard of review, consistent with Rule 52(a) of the Federal Rules of Civil Procedure but also bearing in mind the obligation in First Amendment cases for appellate courts to make an independent examination of the record as a whole. See Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Ezekwo v. New York City Health & Hospitals Corp., 940 F.2d 775, 780 (2d Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 657, 116 L.Ed.2d 749 (1991).
Based on the data presented at trial through expert witnesses, the District Court found that the average spending in Vermont House district races during the three election cycles preceding the District Court‘s opinion was almost uniformly below the limits set pursuant to Act 64. 118 F.Supp.2d at 471. Similarly, multi-member Senate districts all involved average spending below that permitted pursuant to Act 64, with average spending exceeding the Act‘s expenditure limits only in single-member Senate districts. Id. In addition to reflecting the actual expenditures in Vermont elections, the District Court found that Act 64‘s expenditure limits are also appropriate given the costs of running for office in Vermont. The District Court credited the testimony of a number of fact witnesses who testified to the details of previous campaigns they had run, including a Senate challenger in Chittenden County and a former Senate candidate in Rutland County, “confirm[ing] that fully effective campaigns for the Vermont Senate can be run under the limits established by Act 64.” Id. at 472. The court noted that Vermont candidates for legislative office frequently use low-cost campaigning methods, such as community debates, door-to-door campaigning, town barbecues and suppers, advertising placards and the issuance of press releases. Id. Legislative candidates rarely hire campaign staff or purchase expensive mass media. Id. Indeed, the evidence at trial indicated that most Vermont House and Senate candidates do not use television advertising primarily because the lack of congruence between media markets and district boundaries render such advertising an inefficient and ineffective way to communicate with voters. (Ex. AA, Landell Admission # 49; Ex. BB, Randall Admission # 84, # 85; testimony of Neil Randall; testimony of Toby Young; Ex. U-1, Expert Report of Anthony Gierzynski, at 8.) Nonetheless, candidates are able to spend the money needed to ensure that their voice is well above “the level of notice” necessary for “effective advocacy.” Shrink, 528 U.S. at 397, 120 S.Ct. 897.
Although candidates for statewide office utilize more expensive media and techniques, they are permitted to spend larger amounts and can thus also engage in “effective advocacy.” In part, this reflects the particular qualities of Vermont, especially the relatively inexpensive cost of television advertising in the State. 118 F.Supp.2d at 472. In reaching this conclusion, the District Court rejected testimony of plaintiffs’ witnesses that much larger amounts of money — amounts so large that no Vermont candidate has ever spent them — are required to wage an effective campaign for governor or other statewide offices. See id. (“The Court rejects [the witness‘s] testimony that it is necessary to spend between $800,000 and $1 million to run an effective campaign for Governor of Vermont ... Nor does the Court accept that candidates must spend approximately $500,000 in order to run effective campaigns for Lieutenant Governor and the other lower statewide offices of Secretary of State, Treasurer, Auditor, and Attorney General.“).
And though conflicting evidence was presented at trial, there was ample evidence aside from the specific statistics and campaigns cited in the District Court opinion to support the District Court‘s effective campaign findings. For example, plaintiffs’ evidence emphasized what they described as the problems under the limits for candidates running for Senate in Chittenden County, a county that includes the city of Burlington, as well as very rural areas. But defendants presented evidence that the average spending in this district was consistently far less than the $16,500 allowed under Act 64. More specifically, defendants presented evidence that in 1994, all six of the victorious candidates in Chittenden County spent at or near the Act 64 spending limits, including two successful challengers. In 1996, all six winners spent at or below the limits, including three successful challengers. And in 1998, three of the six candidates spent below the limits. As to statewide races, one candidate for State Auditor in 2000, Elizabeth Ready, indicated that under the $45,000 limit for her race, she had been able to purchase newspaper and radio ads, and considered using television advertising later in the race.
Plaintiffs may not simply rely on the highest-spending races in order to declare the entire statute unconstitutional on its face. In Shrink, the Supreme Court went as far as to assume the truth of plaintiff‘s claim that the contribution limits affected his ability “to wage a competitive campaign,” and concluded that nonetheless, “a showing of one affected individual does not point up a system of suppressed political advocacy that would be unconstitutional under Buckley.” 528 U.S. at 396, 120 S.Ct. 897. Indeed, certain plaintiffs have a particularly difficult time arguing that the spending limits will burden their First Amendment rights. Plaintiff Donald Brunelle‘s maximum expenditure in any of his past House campaigns was $1,007, and plaintiff George Kuusela has never spent more than $1,550. The new limits allow each of them, as challengers, to spend $3,000 in their House campaigns, significantly more than they have spent in the past.
In Shrink, the Supreme Court relied on and quoted the District Court‘s conclusions, made on cross-motions for summary judgment, that “candidates for state elected office [have been] quite able to raise funds sufficient to run effective campaigns,” and that “candidates for political office in the State are still able to amass impressive campaign war chests.” 528 U.S. at 396, 120 S.Ct. 897 (citations omitted). Like the Shrink Court, we affirm the District Court‘s conclusion, here made after a 10-day bench trial, that candidates can meet the threshold level of “effective advocacy” when running for office in the State of Vermont. 118 F.Supp.2d at 471-72. After independent review, we agree with the District Court that these expenditure limits are not “so radical in effect” as to “drive the sound of a candidate‘s voice below the level of notice,” Shrink, 528 U.S. at 397, 120 S.Ct. 897, and therefore the limits do not prevent candidates from “amassing the resources necessary for effective advocacy.” Buckley, 424 U.S. at 21, 96 S.Ct. 612. However, as we address in the next section, the inquiry into how much the spending limits impinge First Amendment rights is broader than it was in the Shrink contribution limits context, and therefore must go beyond merely “effective advocacy.”
3. Are mandatory expenditure limits the least restrictive means of advancing the State‘s interests?
The greater level of scrutiny accorded spending limits, as compared to contribution limits, requires that Vermont must also prove that Act 64‘s mandatory expenditure limit system is the least restrictive alternative for achieving the State‘s compelling time-protection and anti-corruption interests. This inquiry is essentially twofold. First, the State must prove that the type of regulation chosen was the least restrictive — that is, that no other type of regulation could have advanced the interests asserted while impinging less on First Amendment rights. Second, the least restrictive alternative inquiry requires scrutiny of the basis for the particular spending limits chosen — an inquiry not undertaken with respect to contribution limits. In evaluating the constitutionality of contribution limits, the Supreme Court has indicated that “[i]f it is satisfied that some limit ... is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000,” noting that “[s]uch distinctions in degree become significant only when they can be said to amount to differences in kind.” Buckley, 424 U.S. at 30, 96 S.Ct. 612. In the context of expenditure limits, and in light of the legislative history of Act 64, there may well be “differences in kind” as to the choice of specific spending limits that demand scrutiny.
a. Type of Regulation
Vermont argues that it “had already explored less restrictive alternatives and found them to be ineffective.” Specifically, in 1993, the State instituted a system of voluntary expenditure limits.
Vermont‘s voluntary limits were quite different, however, than many of the voluntary spending limits in other states.21 In Vermont, the only “carrot” exchanged for the voluntary agreement to the limits was the ability to publicize one‘s compliance. Most other states (and New York City) offer additional incentives such as public matching funds, a higher contribution limit, or other inducements. See, e.g., WRITING REFORM: A GUIDE TO DRAFTING STATE AND LOCAL CAMPAIGN FINANCE LAWS, V-8-19 (Deborah Goldberg ed., Brennan Center 2001) (describing variety of mechanisms used by states to encourage compliance with voluntary limits). And many of these types of provisions have been upheld by the federal courts of appeals in the face of a First Amendment challenge. See e.g. Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552-53 (8th Cir. 1996) (upholding Minnesota‘s voluntary public financing scheme), cert. denied, 520 U.S. 1229, 117 S.Ct. 1820, 137 L.Ed.2d 1028 (1997); see also Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 39 (1st Cir. 1993) (holding that Rhode Island‘s voluntary public financing statute survives exacting scrutiny).
Indeed, this type of spending limit — voluntary, but with public funding as an inducement to comply — was in Act 64 as originally introduced in the House, but the provision appears to have been changed to mandatory in one of the House committees. (Ex. A, at E-0001, 0031.) It is unclear from the current record why this change occurred, and the District Court made no findings on this point. Similarly, it is possible that the Vermont legislature could have employed a public financing option for all offices, in addition to the option that was provided for Governor and Lieutenant Governor candidates. See, e.g., GENERAL ACCOUNTING OFFICE, CAMPAIGN FINANCE REFORM: EARLY EXPERIENCES OF TWO STATES THAT OFFER FULL PUBLIC FUNDING FOR POLITICAL CANDIDATES (May 9, 2003) (GAO-03-453) (assessing initial results of public funding of legislative candidates in Maine and Arizona). Notably, early versions of the bill appear to have contained such funding for a broader range of offices. (testimony of Karen Kitzmiller; Ex. 70, at E-2828.) On the other hand, after the voluntary affidavit system broke down, the legislature may have concluded that only mandatory expenditure limitations, together with contribution limitations, would adequately advance the State‘s interests. Indeed, there may have been still other reasons — not yet made part of the record — for the legislature‘s decision not to adopt, for all offices, voluntary expenditure limits with public funding incentives.
If Vermont could have utilized some of the same voluntary mechanisms employed by other states, offering either financial or other incentives for compliance with expenditure limits, then Vermont may not be able to prove that it employed the least restrictive alternative. Cf. Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 758, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (“[W]e can take Congress’ different, and significantly less restrictive, treatment of a highly similar problem at least as some indication that more restrictive means are not `essential’ (or will not prove very helpful).“) (emphasis in original). On remand, the District Court should make findings as to whether there were less restrictive alternatives available that could have been as effeсtive in advancing the asserted interests. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280 n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (alternatives should serve the interest “`about as well‘“). Should there be proven another type of regulation that would have similarly advanced the interests asserted, while impinging less on First Amendment rights, the District Court will have a basis to find that the provision is not narrowly tailored.
b. Basis for Spending Cap Limits
If the District Court finds, however, that mandatory spending limits were the only type of regulation that could sufficiently advance Vermont‘s time-protection and anti-corruption interests, then the court must also inquire into the basis for the particular amount of the spending limits chosen. There was evidence presented at trial that Act 64‘s spending limits were intended to map onto existing spending levels from past campaigns. In defendants’ proposed findings of fact after trial, defendants indicated that the legislature “considered factors such as population, historical information on past spending levels and campaigns, Vermont‘s previous voluntary spending limits, and the testimony of numerous witnesses concerning the appropriate level for the limits, with the legislature balancing different viewpoints as is necessary with most pieces of legislation.” This is consistent with the District Court‘s findings that the average spending on past races was consistently under the limits imposed by Act 64. 118 F.Supp.2d at 471-472. See also Richard Briffault, Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buckley Era?, 85 MINN. L. REV. 1729, 1769 (2001) (suggesting that median spending levels of candidates in recent races could be an appropriate basis for spending limits).
Nonetheless, the specific basis for the final limits is not entirely clear from the existing record. Defendants noted that for the Governor‘s race, the Senate bill would have set a $250,000 limit, while the House bill originally set a $400,000 limit. In the final bill as adopted, the limit was set at $300,000. Similarly, the limits for one-seat Senate races varied in the various committee bills, either $4,000, $5,000 or $6,000, with an additional $2-3,000 for each additional seat in the district. The final limits were those that emerged out of the Senate Finance Committee (the lowest in any of the committee bills) — $4,000 plus an additional $2,500 for each additional seat. Such decisions, of course, could be the product of typical legislative compromise — a process into which we will not intrude. However, plaintiffs also presented evidence that the ultimate decision as to the amount of certain statewide spending limits was motivated by a desire to preserve the public fisc, because of Act 64‘s public financing option for gubernatorial and Lieutenant Governor candidates.22 Particularly in the context of expenditure limits, these choices demand greater scrutiny.
Thus, in undertaking its “least restrictive means” analysis on remand, the District Court should make additional findings on the impact of the legislative choices as to the appropriate spending limits on candidates’ and voters’ First Amendment rights. Even if Act 64‘s spending limits are sufficiently high to permit “effective advocacy” as defined in Shrink, as the District Court found and as we have affirmed, the precise level of the limits chosen can have a significant impact on how “restrictive” the provision is on First Amendment rights. Of course, a $2 million limit for State Senate races is quite unlikely to restrict First Amendment rights, but equally unlikely to impact the “arms race” mentality and thereby advance the interests asserted. Moreover, there will always be “distinctions in degree” that could be seen as less restrictive — $305,000 is “less restrictive” than $300,000; $310,000 “less restrictive” than $305,000, etc. And such an inquiry has no logical endpoint.
However, the specific choices made by the Vermont legislature among the different spending limits contained in various bills may be “differences in kind” with respect to the impact on the First Amendment rights of candidates and voters. Inquiries into the First Amendment impact of challenged regulations have been undertaken in analogous contexts by other courts, see, e.g., National Black Police Ass‘n v. D.C. Board of Elections and Ethics, 924 F.Supp. 270, 277 (D.D.C. 1996) (considering a variety of factors in assessing whether the reduction in campaign funds was “so substantial that it affected the candidates’ ability to reach voters“), vacated as moot sub nom. National Black Police Ass‘n v. District of Columbia, 108 F.3d 346 (D.C. Cir. 1997), and, although necessarily speculative here, should be undertaken on remand. If the choice of the lower spending limit — for example, $4,000 for a Senate race as opposed to $6,000 — is significantly “more restrictive,” while no more effective in advancing the interest asserted, then the lower spending limit is not consistent with the First Amendment. Assessing the legislative alternatives, then, requires evaluating both (1) the extent to which the higher spending limit is “less restrictive” of the First Amendment rights of candidates and voters23; and (2) the extent to which the higher spending limit would be as effective in advancing the anti-corruption and time-protection interests. The answers to these questions will determine whether the spending limits chosen not only allow for “effective campaigns” but also are the “least restrictive alternative,” and therefore narrowly tailored.
E. Conclusion: Remand for Further Findings
Quite simply, the District Court found that effective campaigns can be waged under Act 64‘s stated limits, and we agree. But the District Court did not examine, because it found spending limits per se unconstitutional, whether the legislature might have chosen either another type of regulation besides mandatory spending limits, or higher limits, that would still achieve the goals we sanction and yet impinge less on the First Amendment rights of candidates and voters.24 Cf. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 668, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (remanding, after grant of summary judgment, “to permit the parties to develop a more thorough factual record, and to allow the District Court to resolve any factual disputes remaining, before passing upon the constitutional validity of the challenged provisions” in part because “the record fails to provide any judicial findings concerning the availability and efficacy of `constitutionally acceptable less restrictive means’ of achieving the Government‘s asserted interests“) (quoting Sable Communications of Cal., Inc., v. FCC, 492 U.S. 115, 129, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)). As to the amount of the limits, there obviously comes a point where limits would be set so high as to have no impact on the interests sought to be protected. We need, however, to hear from the District Court on this fact-intensive question of whether that point is as set in Act 64 or appreciably higher.
On remand, the District Court ought consider, along with any other issues relating to narrow tailoring that it and the parties deem relevant: (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.25 Based on its fact-finding on these issues, the District Court will be able to draw a legal conclusion as to whether Vermont‘s legislature chose the “least restrictive alternative” for advancing its interests, and therefore whether the expenditure limits are narrowly tailored.26
With respect to treating related expenditures as candidate expenditures, see
Because a content-based regulation of speech such as this is presumptively invalid, and the District Court held it unconstitutional, we leave in place the injunction against enforcement of these provisions pending further proceedings consistent with this opinion.27
II. Act 64‘s Contribution Limitations
Act 64 also imposes four basic types of contribution limitations. First, contributions by individuals to candidates are limited to $200 for state representative and other local offices, $300 for state senator and other county offices, and $400 for statewide office. See
A. Limitations on Contributions by Individuals to Candidates
The contribution limits of $200 (state representative), $300 (state senator), and $400 (statewide office) are subject to a lesser degree of scrutiny than expenditure limits, as explained most recently by the Supreme Court in Shrink, 528 U.S. at 386, 120 S.Ct. 897. Contribution limits can 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 tuned.” Id. at 387-88, 120 S.Ct. 897 (internal quotation marks omitted).
The governmental interest in eliminating actual and apparent corruption is sufficient to support Vermont‘s limits on contributions to candidates. The Buckley Court upheld limitations of $1000 on contributions to candidates for federal office on the strength of this interest alone. “It is unnecessary to look beyond the Act‘s primary purpose — to limit the actuality and appearance of corruption resulting from large individual financial contributions — in order to find a constitutionally sufficient justification. . . .” 424 U.S. at 26, 96 S.Ct. 612; see also McConnell, 540 U.S. at ___, 124 S.Ct. at 647 (explaining that in Buckley, the Court “determined that limiting contributions served an interest in protecting `the integrity of our system of representative democracy‘“) (quoting Buckley, 424 U.S. at 26-27, 96 S.Ct. 612); Jacobus v. Alaska, 338 F.3d 1095, 1107 (9th Cir. 2003) (“[A] failure to regulate the arena of campaign finance allows the influence of wealthy individuals and corporations to drown out the voices of individual citizens, producing a political system unresponsive to the needs and desires of the public, and causing the public to become disillusioned with and mistrustful of the political system.“). In this case, the District Court relied on trial testimony, citizen polls, comments by public officials and media coverage to demonstrate the real and perceived threat of corruption in Vermont. 118 F.Supp.2d at 469, 478. As the District Court concluded, “[t]he threat of corruption in Vermont is far from illusory.” Id. at 478.
In addition, we conclude that the Vermont limits are “closely drawn” to this anti-corruption interest. The District Court‘s findings in this respect are reasonable and based on the evidence adduced at trial. Id. at 470, 478-80. The District Court relied in part on expert testimony indicating that over the last three election cycles, less than 10 percent of contributions exceeded the limits set by the Vermont legislature. Id. at 478. Based on testimony by both plaintiffs’ and defendants’ witnesses, the District Court also concluded that the limitations approximated amounts “considered suspiciously large by the Vermont public.” Id. at 479-80. And finally, the court compared the Vermont law to similar limits upheld in Maine and Missouri. In Maine, a limit of $250 for House and Senate candidates was upheld. See Daggett v. Comm‘n on Governmental Ethics & Election Practices, 205 F.3d 445
The contribution ceilings are also sufficiently high to permit effective campaigning. Overly restrictive contribution limits might “have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.” Buckley, 424 U.S. at 21, 96 S.Ct. 612. Contribution limits, however, need not be perfectly set: the failure of the legislators to “engage in such fine tuning does not invalidate the legislation.” Id. at 30, 96 S.Ct. 612. As we have indicated, “distinctions in degree become significant only when they can be said to amount to differences in kind.” Id. We agree with the District Court‘s conclusion that the contribution limits imposed by Act 64 do not “amount to differences in kind.”
As the District Court found, the limits imposed by Vermont hardly overwhelm the ability of candidates to engage in active and effective campaigning. The District Court marshaled evidence to support its findings, and conducted a fact-intensive analysis of what constitutes effective campaigning. 118 F.Supp.2d at 478-79. Moreover, Vermont has actually conducted an election since the imposition of these contribution limits (for Mayor of Burlington), and that election involved effective campaigns despite the contribution limitations. Id. at 471, 479. Subject to the applicable limits imposed by the statute, the mayoral candidates raised funds comparable to the amounts spent in State Senate races in the past. Id. The District Court further concluded that the limits may actually improve the ability of candidates to campaign, by freeing candidates from the time-consuming task of “wooing big donors.” Id. at 480.
B. Limitations on Contributions to and by PACs and Political Parties
Act 64 also regulates the ability of PACs and political parties to give and receive contributions. The Act prohibits such organizations from accepting contributions of more than $2000 from a single source during any two-year general election cycle. See
The District Court upheld these limitations, except as applied to contributions by political parties to their own candidates. 118 F.Supp.2d at 486-87. Upon review, we hold that all of these limitations are constitutional. We thus affirm the judgment of the District Court as to the constitutionality of most of the limitations, but reject the District Court‘s conclusion that political parties cannot be prohibited from contributing to candidates in excess of generally applicable limitations. We discuss three narrow issues that require further attention and, as to two of those issues, further proceedings before the District Court.
We first consider the issue of the $2000 limitation on contributions to political committees or political action committees and political parties. Act 64 defines “political committees” or “political action committees” as “any formal or informal committee of two or more individuals, not including a political party, which receives contributions or makes expenditures of more than $500.00 in any one calendar year for the purpose of supporting or opposing one or more candidates, influencing an election or advocating a position on a public question, in any election or affecting the outcome of an election.”
Perhaps the most typical application of these rules would involve contributions to a political committee or political party that participates in the political process either by making contributions to or coordinated expenditures with candidates for office. As applied to these organizations, the $2000 limitation is unquestionably constitutional. Political action committees “derive rights from their members” and are accordingly due First Amendment protection. Colorado Republican II, 533 U.S. 431, 448 n. 10, 121 S.Ct. 2351, 150 L.Ed.2d 461. It is well established, however, that the state interest in fighting corruption, real and apparent, justifies limitations on contributions by individuals to particular candidate committees. Such a state interest is equally capable of justifying limits on contributions made to political parties or committees.
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.
Cal. Med. Ass‘n v. Federal Election Comm‘n, 453 U.S. 182, 197, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (“CMA”).
The plaintiffs do not dispute that, in principle, such limitations may be constitutional. Instead, they argue that Vermont‘s chosen limitations are overbroad, both because the statute applies to too many organizations and because it sets the contribution ceiling too low.
Regarding the first point, the plaintiffs assert that the restriction is an “overbroad, blunderbuss approach that punishes” even those organizations that are unlikely to corrupt the political process. They imply that certain types of PACs, “particularly legislative leadership PACs or ideological PACs,” pose a weaker danger of corruption and should therefore be permitted greater latitude in determining how to allocate their contributions. The plaintiffs argue that the limits are unconstitutional because Vermont has not shown any independent evidence that political parties and PACs have a negative or deleterious effect on Vermont‘s politics. Further, the plaintiffs contend, these organizations are even less likely to corrupt in light of Act 64‘s other limitations on campaign financing. Private individuals cannot, for example, effectively funnel large gifts through political parties because parties can themselves only make contributions to candidates of between $200 and $400.
An argument identical to the plaintiffs’ overbreadth argument was addressed and rejected in Buckley. There, the appellants argued that many large contributors have no interest in corrupting the political process, and the law was overbroad for restricting the rights of these unthreatening contributors. The Supreme Court upheld the constitutional validity of generally applicable contribution limits of $1000, even though “most large contributors do not seek improper influence over a candidate‘s position or an officeholder‘s action.” Buckley, 424 U.S. at 29, 96 S.Ct. 612. The Court reasoned that the very corruption rationale which provides a foundation for the constitutional validity of contribution limitations supports their general applicability: “Not only is it difficult to isolate suspect contributions, but, more importantly, Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.” Id. at 30, 96 S.Ct. 612.
These arguments were also rejected by the Supreme Court in CMA, 453 U.S. at 197, 101 S.Ct. 2712. In that case, a California political action committee challenged a $5000 federal limit on annual contributions by individuals and associations to multicandidate political committees. See id. at 186, 101 S.Ct. 2712. Like the plaintiffs here, the parties in CMA asserted that such limitations do not serve the government‘s strong interest in preventing actual or apparent corruption in the political process. See id. at 197, 101 S.Ct. 2712. The Supreme Court concluded that ”Buckley precludes any argument” that the government may not limit the size of contributions made to multicandidate committees, and rejected the assertion that such limitations do not further the government‘s interest in battling political corruption. Id. Without such limitations, individuals could evade the contribution limitation “by channeling funds through a multicandidate political committee.” Id. at 198, 101 S.Ct. 2712.
In light of these prior holdings, we are unpersuaded by the plaintiffs’ contention that Vermont had an obligation to divine which PACs and political parties pose the most serious risk of corruption, and develop a record that donations to each type of organization, narrowly defined, pose a strong threat of corruption. It is clear that, in principle, such limitations are an “appropriate means ... to protect the integrity of the contribution restrictions upheld... in Buckley.” CMA, 453 U.S. at 199, 101 S.Ct. 2712. Thus, the Vermont provision is constitutional so long as the danger of corruption of the political system exists. Just as individuals may be limited from directly contributing to campaign organizations, individuals may be limited from doing so indirectly—that is, contributing large sums to PACs or political parties that funnel money to candidates. See Buckley, 424 U.S. at 38, 96 S.Ct. 612; cf. Federal Election Comm‘n v. Beaumont, 539 U.S. 146, 155, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) (explaining that “restricting contributions by various organizations hedges against their use as conduits for `circumvention of [valid] contribution limits‘“) (citation omitted; alteration in original). Vermont does not have the burden to show on a contributor-by-contributor basis that contributions have led to corruption.
The plaintiffs’ second argument is that the $200, $300, and $400 limits on contributions to candidates for office are unnecessarily low, and that political parties and PACs should be exempt. The plaintiffs in Buckley also raised this argument, contending that the $1000 limitation regulated more contributions than necessary to accomplish its anti-corruption goals. Specifically, the appellants argued that even contributions of a larger amount did not carry a risk of corruption because no politician would throw away a career and reputation for a $1000 donation. As with the earlier overbreadth argument, the Supreme Court also has rejected this contention. See Buckley, 424 U.S. at 30, 96 S.Ct. 612. “[I]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000.” Id. (quotations and citations omitted). The Court reaffirmed the validity of this approach in Shrink, stating that a contribution limit survives scrutiny only if the regulation is “closely drawn to match a sufficiently important interest, though the dollar amount of the limit need not be fine tun[ed].” 528 U.S. at 387-88, 120 S.Ct. 897 (citations and internal quotation marks omitted; alteration in original); see also Montana Right to Life Assoc. v. Eddleman, 343 F.3d 1085, 1095 (9th Cir. 2003) (same).
In order to succeed, then, plaintiffs must establish that when the limitations are applied to political parties and political action committees, they impose such a severe burden that it results in a “difference[] in kind” from alternative limits. Buckley, 424 U.S. at 30, 96 S.Ct. 612. In other words, a party seeking a special exemption from such laws carries a large burden. Illustrative of the political parties’ and political action committees’ burden in this regard is Federal Election Comm‘n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (“MCFL”). In that case, the Supreme Court considered the constitutionality of a federal law which bans corporations from making any political expenditures from general corporate funds. The statute‘s purpose was to regulate “the corrosive influence of concentrated corporate wealth.” Id. at 257, 107 S.Ct. 616. The Federal Election Commission had sought enforcement of the provision against an incorporated, non-profit pro-life advocacy organization that had “features more akin to voluntary political associations than business firms.” Id. at 263, 107 S.Ct. 616. The Court held that, as applied, the provision was unconstitutional because the stated interest does not apply to an incorporated association like MCFL. Id. at 263-64, 107 S.Ct. 616. The Court set forth specific and demanding criteria for determining when other corporations fall into this constitutionally mandated exclusion, which the advocacy organization was able to meet. Id.
We should expect that the plaintiffs here bear a similar burden of establishing their exceptionalism, even if the particular facts of MCFL do not apply. Unlike the situation in MCFL, the PACs here have offered no evidence that PACs and political parties have overriding features exempting them from the general findings about actual and apparent corruption in Vermont. Nor have they provided evidence that the limitations, when applied to these organizations, impose such a severe burden on speech as to constitute a difference in kind. As mentioned, the District Court concluded, after considering a large body of evidence, that the contribution limits are high enough so that they do not constitute a severe infringement—a difference in kind—of the ability to associate politically. 118 F.Supp.2d at 476-81. We thus agree with the judgment of the District Court and find that Act 64‘s contributions limits on political action committees and parties are constitutional.
The District Court did find support for one exception to the candidate contribution limits: those made by political parties. In this regard, we reject the District Court‘s conclusion that on account of their “unique role in the mechanics of our democracy,” political parties must have greater freedom to provide their candidates with financial support. Id. at 486. Relying on the central place of political parties in elections, the District Court held that the generally applicable limits were too severe when applied to parties. This was despite the fact that the District Court had already concluded that candidates can receive sufficient funds to effectively exercise their First Amendment rights even when restricted by Act 64‘s contribution limits. Nevertheless the District Court held that “[s]uch limits would reduce the voice of political parties to an undesirable, and constitutionally impermissible, whisper.” Id. at 487.
We see no other way to understand the District Court‘s position than as being founded on the belief that political parties operate as specially protected institutions under our Constitution and thus merit special treatment. Whatever the validity of this principle in other legal contexts, the Supreme Court has recently left no doubt that parties do not deserve a special exemption from generally applicable contribution limits. See Colorado Republican II, 533 U.S. 431, 480-82, 121 S.Ct. 2351. In that case, the Colorado Republican Party challenged the constitutionality of restrictions on expenditures it made in coordination with candidates for office, arguing that “coordinated spending is essential to parties because a party and its candidate are joined at the hip, owing to the very conception of the party as an organization formed to elect candidates.” Id. at 477, 121 S.Ct. 2351 (citations and quotation marks omitted). The Court held that such limitations are a constitutional mechanism for ensuring that contributors do not circumvent the federal contribution limit and rejected the claim that political parties occupy some special place in our constitutional system. Above all, the argument fails because, just as with other political organizations, political parties “are necessarily the instruments of some contributors whose object is not to support the party‘s message or to elect party candidates across the board, but rather to support a specific candidate for the sake of a position on one, narrow issue, or even to support any candidate who will be obliged to the contributors.” Id. at 479, 121 S.Ct. 2351. Thus, as it does with any other contributor to political campaigns, the government has an interest in restricting the flow of money from parties to candidates in order to reduce actual and apparent corruption. “The Party‘s arguments for being treated differently from other political actors subject to limitation on political spending under the Act do not pan out.” Id. at 481, 121 S.Ct. 2351. Since we agree with the District Court‘s conclusion that Vermont‘s limits are “vital to deter avoidance of the individual contribution limits,” 118 F.Supp.2d at 487, we hold that their application to political parties is supported by this strong governmental interest.
Having concluded that the restriction of contributions from political parties is supported by a constitutionally sufficient governmental interest, we turn to the question of whether the statute is sufficiently tailored to this interest. As discussed above, the District Court reviewed the limits based upon data reflecting the costs of elections and the views of citizens regarding what constitutes suspiciously large gifts. Based on this body of evidence, the District Court concluded that gifts in excess of the limits create the appearance of, and increase the likelihood of, corruption. Moreover, contributions in the amounts permitted by the Act provide citizens an adequate tool for “speaking their mind” by giving a donation in order to affiliate with a candidate. Id. at 478-80.
However, there are three narrower issues that require more individual attention. The first concerns the Act‘s definition of local and state party affiliates as a single entity. For the purposes of determining whether a political party has exceeded its various contribution limitations, Act 64 defines a political party as “any committee established, financed, maintained or controlled by the party, including any subsidiary, branch or local unit thereof and including national or regional affiliates of the party.”
Plaintiff Vermont Republican State Committee argues that this definition requires the party to treat itself as a single monolithic unit, and requires the party to abandon its current, decentralized structure. However, the plaintiff has not cited any actual changes that will need to be made, except that local and state affiliates will now have to record and coordinate their contributions. In other words, the provision does not impose any organizational burden on the party outside of the campaign finance realm, and requires no broader organizational reform. Moreover, the District Court indicated doubt as to whether the Republican Party actually demonstrated that it operates in the decentralized form that it claims. For example, the state committee brought suit on behalf of all of the town and county committees without ever consulting them or asking them to approve the lawsuit. 118 F.Supp.2d at 487-88. The District Court also noted that federal election law treats state, county, and town committees as a single unit for the purposes of campaign finance. Id. We agree with the District Court that, insofar as Vermont‘s campaign finance law treats state and local affiliates as a single entity, it suffers from no constitutional defect.
Second, the plaintiffs have argued that Act 64 applies to even those political action committees that make wholly independent expenditures. Plaintiff Vermont Right to Life Committee-Fund for Independent Political Expenditures (“VRLC-FIPE“), which is affiliated with the Vermont Right to Life Committee (“VRLC“), is a political committee that, by its charter, cannot make contributions to candidates. It has asserted that it makes only independent expenditures, that is, it never coordinates its expenditures with candidates for office. Thus it argues that when applied to itself, the $2000 cap operates as a limitation on independent expenditures.
The statute does appear to lend itself to such an interpretation. On the one hand, the Act explicitly states that it does not apply to independent expenditures. The law explicitly states that “[t]he limitations on contributions ... shall not apply to contributions made for the purpose of advocating a position on a public question, including a constitutional amendment.”
Thus, we remand for findings on the following points: (1) whether plaintiff VRLC makes solely independent expenditures and thus has standing to challenge this provision; (2) whether the Vermont law actually restricts independent expenditures by such organizations; and (3) whether Vermont has a sufficiently strong governmental interest in regulating PACs that do not coordinate their expenditures with candidates for office.
Finally, we remand for additional proceedings on the issue of how Act 64 implicates the ability of a state and local party affiliates to receive funds from national affiliates. Act 64 apparently limits the transfer of money from national to state and local parties, and that limit might impose a significant burden on political parties.
C. The Related Expenditure Provision is Constitutional as to Contributions
We also affirm the District Court‘s holding that the “related expenditure” provisions of Act 64 are constitutional because they serve to reinforce the anti-corruption goals of the contribution limitations. Pursuant to Act 64, “related expenditures” on behalf of a candidate by a third party count toward the third party‘s contribution limit as well as the candidate‘s expenditure limit. The Act defines related expenditures as those “intentionally facilitated by, solicited by or approved by the candidate or the candidate‘s political committee.”
Plaintiffs argue that the “facilitated by” standard is vague because it leaves open the possibility that any communication about a candidate‘s views with a third party that then undertakes independent expenditures will qualify as a contribution. The First Amendment permits the treatment of “coordinated expenditures” as contributions to a candidate. Buckley, 424 U.S. at 46-47, 96 S.Ct. 612. Independent expenditures may not be limited because “the absence of prearrangement and coordination undermines the value of the expenditure to the candidate, and thereby alleviates the danger that expenditures will be given as a quid pro quo.” Federal Election Comm‘n v. Nat‘l Conservative Political Action Comm., 470 U.S. 480, 498, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). The plaintiffs’ objection to Act 64 is really one which assumes that the word “facilitated” has its broadest meaning, akin to giving any aid in support of the third-party expenditure. If that were what the statute meant, then we would agree that the provision might raise constitutional problems.
We think that, in light of the terms “solicited by or approved by” thаt accompany it, the term facilitated should be given a narrower reading. Such a reading would also resolve the ambiguity of the statutory language so as to guarantee the constitutionality of the statute. See WILLIAM ESKRIDGE, LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 873-89 (3d ed. 2001) (discussing canon of constitutional avoidance). Accordingly, we construe the phrase “facilitated by” as requiring some “prearrangement” or “coordination” with the candidate. Nat‘l Conservative Political Action Comm., 470 U.S. at 498, 105 S.Ct. 1459. Under such a construction, sharing routine information about a candidate is not sufficient to meet the “facilitated by” requirement. Thus, the provision is not constitutionally invalid.
Nor is there any constitutional barrier to applying this provision to related expenditures by PACs and political parties. The plaintiffs’ argument on this point substantially restates their claim discussed above—that different contribution limits ought to apply to PACs and political parties. We reject it for the same reasons.
Finally, the provision‘s rebuttable presumption, which presumes that expenditures by political parties or PACs that benefit six or fewer candidates are contributions to those candidates, does not violate the Constitution by chilling protected speech. The plaintiffs argue that the presumption is unconstitutional because (1) the law may never presume that an expenditure is coordinated and (2) the presumption could never be rebutted and, as a result, chills independent advocacy of particular candidates. We find neither claim persuasive.
The Constitution does not bar the use of rebuttable presumptions in this context. The plaintiffs base their argument on Colorado Republican Federal Campaign Comm. v. Federal Election Comm‘n, 518 U.S. 604, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (Colorado Republican I). There, the Supreme Court struck down a federal provision that automatically treated all party expenditures, including those made independently, as contributions to candidates. The Court rejected the Court of Appeals’ analysis that the government was entitled to a conclusive presumption that party expenditures are coordinated. Id. at 619, 116 S.Ct. 2309. The fact that the presumption was conclusive, however, played the critical role in that decision: it eliminated the need for a finding that the expenditures were in fact coordinated and foreclosed the possibility of a defense. Id. at 625, 116 S.Ct. 2309. Act 64 does nothing of the sort, since its presumption is rebuttable.
The plaintiffs’ argument that the presumption is functionally conclusive because one “cannot prove a negative” is, at least in the legal arena, inaccurate. There are ample strategies that an accused party can employ to demonstrate that an expenditure was truly independent from the candidate it supported. The party can, for example, testify that no discussion took place with the candidate about advertising strategies, including the sharing of information about advertising plans. Candidates can testify that they never gave feedback on an independent advertising scheme or that the third parties never solicited such feedback. Adjudicative bodies can take such evidence, or other similar testimony, as proof and infer a lack of coordination. For these reasons, we uphold Act 64‘s rebuttable presumption concerning related expenditures.
D. The 25 Percent Limit on Out-of-State Donations is Unconstitutional
We can find no sufficiently important governmental interest to support the provision of Act 64 that limits out-of-state contributions to 25 percent of all candidate contributions. Unlike all of the other Act 64 provisions at issue in this appeal, the out-of-state contribution limit isolates one group of people (non-residents) and denies them the equivalent First Amendment rights enjoyed by others (Vermont residents). The District Court‘s decision in this regard should be upheld.
The District Court concluded that Vermont‘s interest in eliminating excessive out-of-state contributions was confined to unusually large contributions. 118 F.Supp.2d at 484. The District Court also noted that many non-residents have legitimate and strong interests in Vermont and have a right to participate, at least through speech, in those elections. Id. We find no support in the record for the alternative claim that Vermont has an important interest in singling out one class of contributors for limitations. See 1997 Vt. Laws P.A. 64 (H. 28) (1997) (finding No. 5) (“Increasing campaign expenditures require candidates to seek and rely on a smaller number of larger contributors, often outside the state, rather than a large number of small contributors.“). There are only vague references to the danger of out-of-state contributions, and all refer to the danger of excessively large (not cumulatively great) contributions.
In the two reported decisions on the issue, courts have split on whether limitations of non-resident contributions may be upheld on corruption grounds. The Ninth Circuit has rejected, almost in bright-line form, limitations on non-resident restrictions. In VanNatta v. Keisling, the court struck down an Oregon initiative that effectively limited the use of non-resident contributions to 10 percent of total campaign expenditures. See VanNatta, 151 F.3d 1215, 1217-18 (9th Cir. 1998), cert. denied sub nom., Miller v. VanNatta, 525 U.S. 1104, 119 S.Ct. 870, 142 L.Ed.2d 771 (1999); but see Montana Right to Life Assoc. v. Eddleman, 343 F.3d 1085, 1091 n. 2 (9th Cir. 2003) (suggesting that VanNatta was superseded by Shrink). Addressing the asserted anti-corruption justification, the court held that the provision suffered from both over and underbreadth. Its overbreadth stemmed from the fact that it prevented all non-resident contributions once the 10 percent threshold had been reached, even those too small to have any corruptive influence. See VanNatta, 151 F.3d at 1221. The provision was underbroad because it did nothing to prevent corruptive (i.e., large) resident contributions; nor did it prevent corruptive non-resident contributions until the 10 percent limit had been reached. See id. In other words, the non-resident cap was “not closely drawn to advance the goal of preventing corruption.” Id.
Because Act 64 contains contribution limits, it does not share all of the flaws of the Oregon statute considered in VanNatta. Act 64 does, for example, limit large resident and non-resident contributions. Nonetheless, the provision is overbroad in that it prohibits small contributions from out-of-state sources once the 25 percent threshold has been reached, even though such contributions are no more likely to corrupt than in-state contributions. Under this analysis, sustaining the provision would require an additional explanation for why exactly Vermont has an interest in eliminating such small donations only from non-residents.
The Alaska Supreme Court has attempted to craft such an explanation in State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S.Ct. 1156, 145 L.Ed.2d 1069 (2000). The Alaska law at issue capped out-of-state contributions but at lower percentages than Vermont‘s law. The court upheld the limitations on the grounds that out-of-state contributions have the ability to distort the Alaskan political system: “These nonresident contributions may be individually modest, but can cumulatively overwhelm Alaskans’ political contributions. Without restraints, Alaska‘s elected officials can be subjected to purchased or coerced influence which is grossly disproportionate to the support nonresidents’ views have among the Alaska electorate, Alaska‘s contributors, and those most intimately affected by the elections, Alaska residents. These restraints therefore limit the `potential for distortion.‘” Id. at 617. Put another way, Alaska‘s “[m]ore than 100 years of experience ... have inculcated deep suspicions of the motives and wisdom of those who, from outside its borders, wish to remold Alaska and its internal policies.” Id. The out-of-state limitation, according to this view, restrains their distorting influence. Id.
The analysis in the Alaska case is a sharp departure from the corruption analysis adopted by the Supreme Court in Buckley and Shrink. Even under the more expansive Shrink analysis, the fear was that candidates would become too compliant with the wishes of large contributors because they must rely on private interest groups for funding. The Alaska analysis permits limitations not to ensure candidate independence generally, but to limit the influence of one set of people—untrustworthy outsiders. Even assuming that the Alaska Supreme Court is correct that outsiders have bad motives and little to contribute to its political discourse, the government does not have a permissible interest in disproportionately curtailing the voices of some, while giving others free rein, because it questions the value of what they have to say.
The Alaska Court‘s concern could be understood another way: that when candidates are beholden to fundraisers, and not voters, then large contributions from non-residents distort the system. Again, this problem would endure even if officials were beholden to in-state contributors. Moreover, Vermont‘s expenditure limitations eliminate the major force behind candidates’ excessive reliance on campaign contributors—their need to maximize their ability to raise funds by remaining pliant to the wishes of those who contribute to the political campaign system.
Based on our review of these cases and the governmental interests asserted by the defendants, we are unpersuaded that the First Amendment permits state governments to preserve their systems from the influence, exercised only through speech-related activities, of non-residents. Vermont has asserted no valid interest sufficiently strong to justify the provision, and we therefore hold it unconstitutional. Pursuant to Act 64‘s severability provision, the unconstitutional provisions should be severed.
CONCLUSION
In summary, we conclude that Vermont has a sufficiently important governmental interest in support of Act 64‘s contribution limits—fighting the real and apparent corruption that accompanies unlimited campaign gifts—and that those contribution limits are closely drawn to achieve this goal. Accordingly, except as noted below, we uphold Act 64‘s contribution limits.
Vermont also has established two interests in favor of Act 64‘s expenditure limitations that, taken together, are constitutionally compelling: namely, protecting the time of candidates and elected officials, and preventing the reality and appearance of corruption. Although we find that these limits permit candidates for public office to engage in effective campaigns, additional fact-finding is required to complete this narrow tailoring inquiry. On remand, the District Court must determine whether the legislature might have chosen either another type of regulation or higher limits that would still achieve the goals we sanction and yet impinge less on the First Amendment rights at stake.
For the reasons set forth, we affirm the District Court‘s holdings that the following provisions of Act 64 are constitutional: (1) the limit on contributions that candidates may accept from individuals or political action committees (§ 2805); (2) the limit on contributions that political action committees and political parties may accept from any source (§ 2805(a)); (3) the definition of political parties as including state, county and town entities (§ 2801(5)); and (4) the classification of related expenditures as contributions (§ 2809(a)). We also affirm the District Court‘s finding that the limits on contributions from non-Vermont residents and organizations (§ 2805(c)) are unconstitutional and we uphold its injunction against enforcement of that provision.
We vacate the District Court‘s injunction against enforcement of the limitation on contributions by political parties to candidates (§ 2805(a)). We also vacate the judgment and remand for further proceedings with respect to the constitutionality of (1) limiting candidate expenditures (§ 2805a); (2) treating the “related expenditures” of third parties as candidate expenditures (§ 2809(b)); (3) restricting the ability of PACs to make wholly independent expenditures, to the extent the Act‘s provisions are read to impose such restrictions (§§ 2801(4), 2805(g)); and (4) limiting transfers of funds from national to state political party affiliates (§§ 2801(5), 2805(a)-(b)). Finally, we affirm the District Court‘s injunction against enforcement of Act 64‘s expenditure limitations, pending further proceedings.29
In vacating aspects of the District Court‘s injunction, we are mindful that Act 64‘s limitations are premised on a two-year election cycle. Given that further proceedings must be held, we remand to the District Court the issue of when the various limitations revived by this opinion should be given effect. We thus authorize the District Court to designate an appropriate effective date for these limitations that causes the least disruption to the current election cycle.
Each party shall bear its own costs on this appeal.
Notes
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) Inadequacy of Average Spending in Past Elections as a Constitutional Standard ............................................173
- C) Evidence of Contested Elections in Vermont ...........................175
- 2) Effect of Act 64‘s Expenditure Limits on Candidates .....................176
- 1) Past Experience .........................................................172
- c) The Burden on Challengers ..................................................178
- d) The Burden on the Press ....................................................181
- e) The Burden on Party Affiliates .............................................182
- a) The Burden on Grassroots Political Activity ................................170
- 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) Stopping the “Arms Race,” “Effective Advocacy,” and Incumbent 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
- a) Legislative Facts, Adjudicative Facts, and Mixed Issues of Fact and Law ....202
- VII. CONCLUSION ....................................................................209
- Appendix A .........................................................................210
I. INTRODUCTION
II. APPLICABLE CONSTITUTIONAL PRINCIPLES
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.
247 As Justices Brandeis and Black have reminded us, the high-mindedness of a law‘s proponents is no guarantee that it does not flagrantly violate principles of freedom of expression. This is particularly true with regard to legislation that was, as I detail in Part VI(d) of this dissent, examined in the legislative process more for the nobility of its stated purposes than for what it actually says. Since Act 64‘s passage, surprise at its actual provisions and actual effects has been expressed by many of the law‘s proponents.3 Notably, one vigorous supporter who has been described as its author, Anthony Pollina, see Vermont Reformer Says Law He Authored is Unconstitutional, Political Finance, The Newsletter, March, 2002, has since sought to run for office and brought a lawsuit claiming that Act 64 violates thе First Amendment. See Ross Sneyd, Progressives Sue to Ensure Public Financing for Pollina, Associated Press, Mar. 12, 2002.
248 Moreover, high-mindedness is, for some, a mode of self-deception obscuring self-serving motives or, for others, a facade useful in disadvantaging political opponents, routinely referred to as “special interests.” When campaign finance legislation is considered by those in power, there is both motive and opportunity to craft rules that will restrain the political activity of opponents. My colleagues caution that the self-interest of incumbents should not cause us to presume that such legislation is unconstitutional. However, most of the major factual premises underlying Act 64 posit incumbents who value reelection over their duties to constituents and personal honor. These premises should not hold center stage when examining the ostensible justifications for Act 64 only to disappear when scrutinizing what its actual effects will be.
249 I also note that some of Act 64‘s proponents relied upon and quoted by my colleagues have themselves demonstrated the importance of self-interest among its supporters. For example, one (then) incumbent state senator testified that Act 64 was needed to stop the “arms race” in which some of her opponents buy “ads” and “yard signs” that catch voters’ attention and cause voters to wonder whether she is running for reelection. Trial Tr. vol. IX at 148 (Elizabeth Ready). Another, as noted, brought a constitutional challenge to Act 64 when it impeded his political career.
250 Moreover, our experience in a similar area suggests that great caution is in order where incumbent legislators pass laws affecting their electoral fate. Legislatures can directly affect the outcome of elections through two kinds of legislation: reapportionment and campaign finance regulation. Our experience with reapportionment is that, over time, the self-interest of incumbents has become the sole guiding star. See infra Part IV(c).
251 Indeed, whenever Congress takes up legislation involving campaign finance, the press now openly discusses how various proposals will affect the prospects of particular political parties and candidates. See, e.g., Ruth Marcus & Dan Balz, Democrats Have Fresh Doubts on “Soft Money” Ban; Some Fear GOP Would Gain Edge in Campaign Finances, Washington Post, Mar. 5, 2001, at A1; John Mintz, McCain‘s “Soft Money” Pledge Alarms GOP; Republican Leaders Say Curbs Would Hurt Party‘s Election Chances, Give Fund-Raising Edge to Democrats, Labor Unions, Washington Post, Feb. 22, 2000, at A6. The assumption that these possible effects never enter the minds of the candidates for reelection who enact such legislation might be questioned by even the least cynical observer. Truly searching scrutiny of campaign finance legislation is therefore essential.
252 I respectfully submit that my colleagues have not given this legislation careful, much less exacting, scrutiny. Their opinion describes the provisions of Act 64 in only cursory fashion. In a show of deference exceeding even that accorded decisions of an administrative body, it accepts the theory and factual assumptions proffered by the law‘s supporters at face value even when their actions belie their words. See infra Part VI(d) (failure to comply with reporting requirements); infra Parts IV(b)(1)(C), IV(c) (spending more than Act 64‘s limits); supra Part II(f) (bringing a lawsuit to challenge the constitutionality of the Act); infra V(e) (same). And it ignores the holding of Buckley that expenditure limits are per se unconstitutional.
253 Even without the direct precedent of Buckley, First Amendment jurisprudence does not allow laws that burden and prohibit political advocacy to be justified by the proffer of a theory based on spoken and unspoken factual assumptions without the most exacting judicial scrutiny of that theory, those factual assumptions, and the actual provisions of the law as enacted. Such scrutiny requires an examination of the details of the law passed, the degree of burden it imposes on protected speech, and the interests asserted as its justification. Accordingly, I turn to what Buckley directs as the first step of constitutional analysis, the details of the law challenged. 424 U.S. at 12, 96 S. Ct. 612.
III. THE PROVISIONS OF ACT 64
254 a) Overview
255 Beginning with an overview, Act 64 limits the amount of resources—money and things of value—that may be used by candidates in campaigns and that may be provided by individual supporters or political parties.4 See
256 Act 64 provides a public financing option for candidates for Governor and Lieutenant Governor. See id.
257 An effort like Act 64 of course must provide some definition of the conduct regulated and the substance of what is prohibited and what is permitted. Where limits on campaign expenditures and contributions are imposed by dollar value, a time frame must be selected. The statutory scheme must also include an enforcement scheme, a delicate matter when electoral speech by candidates and their supporters is regulated by governmental officials—often their opponents—and a multitude of statutory ambiguities and problems of interpretation and valuation abound. Scrutiny of the details of such regulation is necessary to inform the constitutional inquiry regarding the degree of impact on protected speech and conduct, the requisite nexus between the regulation and constitutionally permissible goals, and the accuracy, reliability, and likely adherence to those goals of the designated enforcement mechanisms.
258 b) Two-Year Cycle
259 As noted, establishing a basic legal framework for regulating political campaigns first requires selection of a time frame(s) for the provision of public financing and for totaling candidate expenditures, contributions, and related expenditures by individuals and political parties in order to enforce limits on their size. Act 64 is schizophrenic in that regard. For purposes of public financing, it establishes separate time periods and separate funding for primary and general elections in recognition of the obvious fact that some candidates must fund both a primary and general election campaign while others need fund only a general election. See id.
260 For purposes of limiting contributions and expenditures, however, Act 64 imposes a so-called “two-year cycle” approach. See id.
261 The two-year cycle introduces another complexity—and creates much room for anti-democratic manipulation—because party primaries in Vermont are not restricted to voters registered in the particular party but are open to all voters, including those registered in other parties. See id.
262 c) Limits on Expenditures by Candidates
263 Act 64 defines candidate “expenditures” to include “payments, distributions, and disbursements of money or anything of value for the purpose of influencing an election.”
264 Two terms are critical to determining what activities are “expenditures” subject to the limits: “for the purpose of influencing an election,” see id.
265 Potentially the most significant area of ambiguity involves activities of incumbent officials. Members of the executive and legislative branches engage in relatively continuous communication with the public that involves the use of resources in a way that will help a reelection effort and would therefore fit within the definition of “expenditure,” if done by a “candidate” “for the purpose of influencing an election.” For example, Vermont‘s Secretary of State has a publicly funded website that does not avoid capitalizing on the political opportunity offered. See Vermont Secretary of State Website, at http://www.sec.state.vt.us/. The home page features a photo of her with a backdrop of mountains and pine trees. Other pages of the site also find it necessary to include a photo of the incumbent. Such a website not only offers favorable exposure but also involves the preparation of materials easily put to political use as flyers and ads.8 The Vermont Democratic Party website underlines the political usefulness of the official Secretary of State website by offering visitors to the party‘s website a link to the official site. See Vermont Democratic Party Website, at http://www.vtdemocrats.org. See also Burlington GOP Website, at http://www.burlingtongop.com (linking to republican Jim Douglas’ official Vermont Governor Website).
266 The statute offers no guidance on the many questions of how the relevant language is to be applied in practice to incumbents’ activities, even though the answers may have a decisive impact on particular candidates. If most of the resource-consuming activities of officeholders are not “expenditures” because they occur in the course of the officeholders’ public duties, incumbents will have an enormous advantage over challengers under expenditure limits. If most of these activities are “expenditures,” an incumbent officeholder might well use the bulk of permitted expenditures in the first year of the two-year cycle. There are also hundreds of intermediary positions, all of which are arbitrary to one degree or another.
267 Some interpretive guidance, but not much, may be gleaned from the definition of “candidate.” A “candidate” is someone who “has taken affirmative action to become a candidate.”9 Contrary to the assertion in a footnote in my colleagues’ opinion,10 the elastic phrase “affirmative action” and the self-evident circularity of using a word in its own definition leave ample room for disputes over the definition‘s meaning. Persons who fully intend to run for office, but have not announced, engage in all sorts of conduct to bring themselves into the public eye, to appear interested and informed on public issues, and to commend themselves as potential candidates to the media and political leaders. They attend meetings of school boards, selectmen, and various public forums. See Trial Tr. vol. IX at 135 (Elizabeth Ready). Even these efforts require the use of money or things of value, are intended to influence the outcome of an election, and therefore meet the definition of expenditure if done by a “candidate.” That issue thus turns on whether such conduct constitutes an “affirmative action.”
268 A degree of clarity is added by the next sentence of the definition, which states that affirmative action shall include three kinds of acts. However, most of the basic ambiguity is left in place because the use of language of inclusion does not suggest that what follows is an exclusive list of “affirmative act[s].” The first set of included acts involves accepting “contributions” or making “expenditures” in excess of a total of $500. See id.
269 The limits on expenditures by candidates over the two-year cycle vary with the office sought, as follows:
Governor—$300,000
Lieutenant governor—$100,000
Other statewide offices—$45,000
270 State senator—$4,000 plus $2,500 for each additional seat in the district
County office—$4,000
271 State representative, single member district—$2,000, two member district—$3,000.
272 See id.
273 Incumbents may spend 85%—except for legislators, who may spend 90%—of the expenditure limits. See id.
274 d) Limits on Contributions to Candidates
275 “Contributions” are similarly broadly defined as any “payment, distribution, advance, deposit, loan or gift of money or anything of value paid or promised to be paid to a person for the purpose of influencing an election...”
276 Ambiguities lurk in the words “paid to a candidate” with regard to a resource used in a campaign by the resource‘s owner, for example, a campaign worker‘s use of a personal vehicle. Some of these ambiguities are cured in part by the definition of “related expenditures,” discussed below.
277 Uncured are the ambiguities in the term “services provided without compensation” by volunteers. These uncertainties are particularly great—and very important—with regard to professional services, particularly legal services, which are of great value to a candidate whо runs for office under Act 64. A few of the many questions that will arise are: If an employee or partner engages in political activity during working hours and the firm does not dock the appropriate amount of compensation, is that a contribution by the firm? Can professionals who are not solo practitioners provide free professional services to candidates? If a professional is not generally free under a firm‘s employment arrangements to moonlight professional services to others, is the provision of such services to a candidate in non-working hours a contribution by the firm to the candidate valued according to the firm‘s usual billing rate? And so on.
278 The definition of “single source” also contains ambiguities. For example, rendering a non-obvious interpretation, the Secretary of State has stated that partnerships may make contributions as separate entities from the partners themselves, who are free to make identical contributions as individuals. See 2001 Guide, supra. Questions also arise about corporations with only one shareholder, e.g., are professional corporations operated by solo practitioners firms separate from their owners for purposes of the contribution limits?
279 As noted, the contribution limits also apply to money, goods, or services provided to political parties, and the various affiliates of a party are treated as one unit for the purpose of these limits. That is, a contribution to a Democratic town committee is limited as noted immediately infra, see
280 The limits on contributions also vary by office sought and political committee as follows:
281 Political party/political committee—$2,000
Statewide office—$400
State senate/county office—$300
282 State representative/local office—$200.
283 See id.
284 e) Limits on “Related Expenditures”
285 Turning now to “related expenditures,” they are defined as “expenditures” (including, therefore, things of value and importing the ambiguities described above) “intentionally facilitated by, solicited by or approved by the candidate.”
286 The law regulates “related expenditures” in two ways. First, it treats them as contributions subject to the limits on contributions described above. Every use of an in-kind resource—car, phone, computer, etc.—must thus be valued and totaled with direct cash contributions on an ongoing basis. See id.
287 Second, Act 64 also treats related expenditures as candidate expenditures. When an individual‘s or party‘s related expenditures exceed $50, the candidate on whose behalf they were made must treat them as campaign expenditures limited by the statute. See id.
288 As noted, related expenditures include activities of political parties, such as polls, mailings, dinners, and other events.14 If such party activities fall within the definition, they must be treated as contributions to, and expenditures by, the candidate. Such activities can, therefore, trigger an official candidacy, destroy eligibility for public financing, or exhaust the total that a candidate may spend in the two-year cycle. See 2001 Guide, supra; see also
289 To illustrate the effect of these provisions, I have added as Appendix A a letter from the Secretary of State responding to an inquiry as to whether certain party activities should be deemed related expenditures attributable to a particular candidate. The letter makes it clear that parties and their candidates can avoid the risk of an unexpected attribution of a large sum to a campaign only by eschewing normal and necessary political activities. For example, according to the Secretary of State, there is danger in sharing party-funded poll results with candidates or potential candidates; candidates or potential candidates must avoid any knowledge of party mailings; candidates must avoid participation in planning or even approving a party event (a party event at which a candidate is introduced apparently must be a surprise party); and parties must avoid mailings that have a “primary thrust” of supporting candidates. See Appendix A, infra. The Secretary and Attorney General wisely advise, “Each party and potential candidate should review proposed activities with their own counsel,” id., although this will be difficult for the candidate where he or she must remain ignorant of the event.
290 f) Costs of Compliance
291 The costs of complying with the law‘s various provisions are not exempted from the limits on expenditures. See 2001 Guide, supra. Raising contributions itself costs money and is an expenditure. See id. Indeed, the limits on the size of contributions increase these fundraising costs. Moreover, for a candidate to comply with the expenditure limits, he or she must, over a two-year period, either restrict the activities of supporters and the party organization, including the driving of personal vehicles, that constitute related expenditures, or keep in constant contact with supporters and the organization to monitor the size of such expenditures. A failure either to restrict or to monitor related expenditures will create the very real risk that, at a critical stage of the campaign, several supporters or party officials will report that they have exceeded the $50 limit and have, therefore, made expenditures that must be counted as candidate expenditures and may exhaust the campaign limit. In a statewide campaign, the monitoring and limiting of related expenditures by individuals or party organizations might well require a full-time staff member.
292 Moreover, a candidate who does not have legal counsel and other professional services runs great risks. The ambiguities detailed above and problems of valuation will confront candidates and supporters—or at least those who seek to comply with the law as written—with an ongoing need for professional advice. In fact, the Secretary of State and Attorney General advise that parties and candidates retain their own separate attorneys. See Appendix A. As noted, the cost of these attorneys, or the value of their services if obtained as unpaid-for related expenditures by individuals or a political party, are expenditures. See
293 g) Treatment of the Press
294 Although this legislation was fostered by groups experienced in these matters, it does not contain the usual exemption for editorials, op-ed pieces, or even letters to the editor that endorse a particular candidate. See, e.g.,
295 Vermont‘s Secretary of State (the one with the photo-heavy website) has warned that if any individual or organization “requests a photograph, written presentation, or other assistance or information and informs the candidate that the requested information will be used in a publiсation... [providing such] will trigger a related expenditure.” 2001 Guide, supra. Therefore when: (i) a Vermont candidate meets with an editorial board, commentator, or columnist hoping for an endorsement; (ii) a supporter of the candidate uses campaign materials to author an op-ed article for a paper; (iii) a campaign official sends a letter to the editor; or (iv) a campaign official conveys information to a reporter hoping for a news story; the value of any such publication is, under Act 64, a contribution and a related expenditure. See
296 h) Administration and Enforcement
297 I turn now to the processes governing administration and enforcement of this law. Power is delegated to the Secretary of State to “adopt rules necessary to administer the provisions” regarding related expenditures.
298 Finally, candidates who want to seek a determination that an expenditure is a related expenditure made on behalf of their opponents may bring an expedited action in the Vermont Superior Court. See
IV. THE BURDEN ON PROTECTED SPEECH
299 a) The Burden on Grassroots Political Activity
300 I begin with Act 64‘s burdening of grass-roots political activities, not only because such activities are core-protected speech under the First Amendment—not to say indispensable to our democracy—but also because proponents of Act 64 purport to justify its ubiquitously restrictive provisions in the name of increasing and enhancing such activities. See 1997 Vt. Laws P.A. 64 (H. 28) (findings nos. 6 and 8); Trial Tr. vol. IX at 124, 131 (Elizabeth Ready). In fact, Act 64 relentlessly limits such activities and often renders them impossible. Indeed, the Act‘s most intrusive impact is not on the rich and powerful, who if necessary can engage in constitutionally protected independent political activity, but on the ordinary citizen, who needs to participate in organized activity to have a political voice.
301 As the Supreme Court noted in Buckley, even the humblest kind of political activity requires the expenditure of resources. Buckley, 424 U.S. at 19, 96 S. Ct. 612. If the law as drafted is upheld, the quality and quantity of grassroots activities will be severely diminished, although one may question whether a free people will even attempt serious compliance with a law that, were the constitutional stakes not so great, might easily be regarded as an act of legislative silliness. See infra Part VI(d) (failure of Act 64 supporters to comply with its reporting requirements); infra note 32 (reporting mileage expenses in round numbers, despite per mile valuation of 31¢); supra note 4 (lapel buttons and bumper stickers must identify who paid for them, the payor‘s address, and the candidate benefited).
1) Burden on Volunteer Activity
302 As noted, Act 64 treats all related expenditures as contributions and, when they exceed $50, as expenditures by the candidate whose candidacy was supported. See
303 For example, if a supporter holds a “meet the candidate” event in his or her house, the value of the space used, possibly the costs of refreshments,15 and the purchase of stamps and envelopes for mailing invitations to local citizens are all related expenditures. See 1999 Memorandum, supra. Vermont‘s Secretary of State has stated that it usually takes one hundred invitations to attract twenty persons to a “meet the candidate” event. See id. Thirty-seven dollars would thus be used for postage alone for one event for twenty people. See United States Postal Service, First-Class Mail Rate Highlights, available at http://www.usps.com/rate-case/first.htm. As the Secretary of State of Vermont has noted, such “meet the candidate” events are therefore severely limited by Act 64. See 1999 Memorandum, supra.
304 Adding to Act 64‘s intrusiveness on grassroots activities is its treatment of such related expenditures as expenditures by the candidate. Driving to meetings is among the most garden variety of grass-roots political activities. But, under the law, a supporter who averages seven miles per month over the two-year cycle will have exceeded $50 in mileage expenses, and the candidate in question must treat that and all other resource-consuming activities by the individual as campaign expenditures.
305 One effect is to prevent a candidate‘s supporters from exercising free choice as to what activities to undertake. Because the candidate‘s total expenditures are limited, the activities of all supporters must be coordinated and controlled top-down by the candidate for two full years so that the candidate can budget a campaign and not have to end it prematurely because of belatedly discovered related expenditures in excess of $50 that exhaust the expenditure limits. Were that to happen, a candidate, or any supporter over the $50 limit, would not even be able to drive the family car to the local town green to make a speech.16
306 Act 64 therefore creates great incentives for campaigns to reduce the level of grassroots activities. The danger of unexpectedly reaching the expenditure limits will require a campaign to monitor, at a cost of time and resources, those grassroots activities it allows. Fewer such activities will be allowed because of these monitoring costs and because expenditure limits require that priority be given to activities that reach the largest number of voters, such as media advertising.
2) Burden on Local Party-Funded Activity
307 Many grassroots political activities are sponsored and subsidized by local political party affiliates. See Trial Tr. vol. IX at 138-39 (Elizabeth Ready) (party helps with “grass roots organizing,” “voter I.D.,” and “get-out-the-vote“). Act 64 diminishes almost to the point of elimination financial support for local party activity by treating all state, county, and local party committees as a single fundraising unit for purposes of raising, and therefore spending, money. Because all contributions must go to the state party account, all expenditures by every local committee must necessarily be funded out of it.
308 Moreover, limits on contributions and expenditures force political decisionmakers to give priority to activities that reach the largest number of voters. It is now known that Act 64 forces party committees, even without the newly-revived limits on party contributions and related expenditures, to concentrate more on mass media activities than grassroots activities. See 2001 Memorandum, supra; Campaigns Meant Cash for Vermont Media, Associated Press, Nov. 10, 2000 (“‘That was one of the unintended consequences of the campaign finance law, that we saw much more spending on the media,’ [Secretary of State Markowitz] said.“).
309 b) The Burden on Candidates’ Speech
310 The district court concluded that Act 64‘s limits on campaign expenditures are based on past experience and, with limited exceptions, are substantially the same as average expenditures by candidates in the past. See Landell v. Sorrell, 118 F. Supp. 2d 459, 471-72 (D. Vt. 2000). Putting aside for purposes of argument that expenditure limits are per se unconstitutional under Buckley, the level of the limits set by Act 64 clearly places unconstitutional restraints on the speech of candidates for office. First, past experience is no guide. Second, average spending in past elections is a standard that strongly favors incumbents and imposes a one-size-fits-all philosophy that severely constricts debate in the most important elections. Third, Act 64‘s spending levels are so low that, combined with the draconian restrictions on party spending, they will drastically reduce political debate in Vermont.
311 1) Past Experience
311 A) Inaccuracy of Reports From Past Elections
312 It is impossible to determine the level of relevant campaign spending by Vermont candidates in the past, that is, “expenditures” using Act 64‘s definitions. It is not altogether clear what evidence the district court specifically considered in reaching its conclusions. However, on the face of the district court‘s decision, it appears that the court relied heavily on testimony, some of which was conflicting, see id. at 470-72, and did not scrutinize in detail documentary evidence of past practices.
313 More significantly, even the candidate disclosure reports filed under Vermont law for past elections will vastly understate the level of spending when Act 64‘s two-year election cycle and its new and much broader definitions of expenditures and related expenditures are used. There are some expenditure reports in the Trial Exhibits, but they are limited to particular candidates’ out-of-pocket expenditures made during a “campaign.” See, e.g., Trial Exs. vol. IV at E-1311 (Campaign Finance Report of Peter Brownell). Act 64‘s limits on expenditures, however, apply, as noted, to all expenditures made over a two-year period immediately following the last general election and ending with the next general election. See
314 Furthermore, under prior law, there was no provision regarding related expenditures. There was, therefore, no reason even to collect information on, much less to calculate and report, related expenditures by supporters and political parties. In particular, there was no reason to calculate the value of in-kind related expenditures by supporters, such as mileage, all of which count toward the expenditure limits under Act 64. Finally, there was also no need under prior law for candidates to segregate and calculate expenditures on their behalf by party committees, likely a huge amount. See infra note 19 and accompanying text. The value of such support must be treated under Act 64 as a candidate expenditure. See
315 We know only one thing for certain: what candidates deemed to be expenditures in the past—generally direct cash expenditures out of a campaign‘s checking account—will be vastly less than what must be so regarded under Act 64‘s definitions of expenditures and related expenditures.
316 There is another reason why prior spending is not a reliable guide for the needs of campaigns operating under Act 64. Act 64 imposes substantial costs of compliance with its terms that were not encountered under the prior law. As noted, Vermont‘s Secretary of State has indicated that most candidates will be unable to proceed safely without legal advice, see Appendix A, and candidates running for statewide office may need the services of an accountant as well. In the case of legislative candidates, legal assistance alone could literally exhaust all the expenditures —e.g. $2,000 for House candidates —allowable under Act 64. Again, such assistance from a candidate‘s political party will be limited because retention of counsel by a party organization to help candidates would be a related expenditure allocable to individual campaigns.
317 Much time and possibly much support staff will also be consumed by the need to monitor, coordinate, and control related expenditures by supporters that must be charged to the campaign. Finally, some candidates may encounter costs in bringing and defending lawsuits concerning the myriad of interpretive questions that will arise as a result of Act 64‘s ambiguous provisions.
318 B) Inadequacy of Average Spending in Past Elections as a Constitutional Standard
319 The district court deemed the average campaign expenditures in past elections to be a relevant legal guide, Landell v. Sorrell, 118 F. Supp. 2d at 471-72, and my colleagues agree, see Maj. Op. at 130-31.
320 However, even if accurately determined using Act 64‘s definitions, the use of average expenditures in past elections inevitably yields expenditure levels that strongly favor incumbents. First, incumbent legislators in Vermont and elsewhere have ample advantages over challengers under spending limits, discussed infra, and therefore prefer low limits. Second, the average of past expenditures is calculated by including legislative elections that were not seriously contested or perhaps not contested at all—elections in which little communication took place and little was spent. See Trial Exs. vol. III at E-0967 (appellees’ expert‘s calculation of average expenditures, which includes low-spending candidates whose spending is unknown by assuming they spent $500, the maximum allowed before filing is required). It is altogether possible, therefore, that the average expenditure in past elections is less than the amount spent by every candidate who ran in a seriously contested race and perhaps even probable that it is less than the amount spent by any challenger who successfully challenged an incumbent.17 Average past spending therefore has little relevance unless the goal is to disadvantage challengers.
321 The use of average past expenditures is inappropriate for other reasons. The average will reflect only past patterns of citizen behavior in acquiring political information and prior methods of candidate communications with citizens. When citizens congregate in very large numbers for frequent community events, those events may well be effective vehicles for candidate communication with voters. When large community events become less frequent or less important in peoples’ lives and voters turn to other sources to acquire political information—some may rely heavily on a certain newspaper, some on particular radio or television stations, some on websites—other means of communication, perhaps far more expensive, must be used by candidates for effective communication.
322 Part of the problem is simply the one-size-fits-all philosophy of expenditure limits. Different legislative districts may require different modes of communication. Geographic size, the existence and nature of local newspapers, radio and television stations, demographic factors, the issues, and so on, all affect the costs of communication with voters and may do so differently in many districts for the same legislative house.
323 Moreover, because the one-size-fits-all philosophy fails to recognize the differences between elections, it strikes at the heart of democracy. The view that there is an average election that can serve as the compulsory norm for all elections is quite dangerous, even apart from its pro-incumbent bias. Past averages have almost nothing to do with the communication needs in elections in which candidates strongly disagree over issues that divide large portions of the public and a clear-cut attempt is being made to alter government policies on those issues.
324 It is the non-аverage election that is often the historic election, one in which the outcome is heavily contested, the debate is most widespread, the public interest is at its highest, and the most money is spent. Such an election was the New Hampshire primary of 1968, in which Eugene McCarthy, later a plaintiff in Buckley, badly damaged a sitting President in a debate over the Vietnam war in one of the most heavily financed primary races in history. McCarthy spent a then-unprecedented $12 per vote received in that single primary. See George F. Will, Rules to Keep the Rascals In, Newsweek, Jan. 26, 1976, at 80.
325 Vermont had a similar election in 2000, in which civil unions and other divisive issues were at stake. See Ellen Goodman, Vermonters Are Caught up in a Civil War over Civil Unions, Boston Globe, Nov. 2, 2000, at A27; Tom Puleo, Governor‘s Race Tests Vermont Values; “Gay Marriage” Issue Is Monopolizing a Bitter Battle, Hartford Courant, Oct. 30, 2000, at A1. More money was spent in the 2000 election than in any prior Vermont election. See Lawmakers To Revisit Campaign Finance Law, Associated Press, Nov. 14, 2000 (noting that the 2000 gubernatorial campaigns set the record for money spent); see also Ross Sneyd, Campaign 2000 Involved Lots of Spending, Associated Press, Dec. 18, 2000 (describing record spending levels for many elections across Vermont in 2000).
326 McCarthy‘s New Hampshire campaign of 1968 had national significance, while the 2000 Vermont gubernatorial election had unquestioned state, and possibly national, ramifications. Both involved unprecedented citizen participation. See 2000 General Election Results for Gubernatorial Race, available at http://cgi.sec.state.vt.us/cgi-shl/nhayer.exe (”2000 Election Results“) (showing that voter turnout increased in Vermont by 34.5% in the 2000 election compared to previous election); Hugh Gregg, A Tall State Revisited, at app. (1993), available at http://www.politicallibrary.org/TallState/1968dem.html. And both involved, not surprisingly, unprecedented campaign spending.
327 C) Evidence of Contested Elections in Vermont
328 Campaign finance reports of Vermont candidates provide ample evidence, of which we may take judicial notice,
329 The factual support for the conclusion reached by my colleagues—that contested elections will not be substantially affected by Act 64‘s limits—is found largely in opinion testimony offered by proponents of the Act. The already slim value of that testimony is further undermined by the fact that many of those witnesses, when they ran for office, actually exceeded Act 64‘s limits in contested elections, again not counting related expenditures by individuals and parties. See Campaign Finance Report of Anthony Pollina, Dec. 18, 2000 (spent $335,412.46 in Governor‘s race, with expenditure limit of $300,000); Campaign Finance Report of Cheryl Rivers, Dec. 18, 2000 (spent $19,290.39 in senate race, with expenditure limit of $9,000); Campaign Finance Report of Elizabeth Ready, Dec. 18, 2000 (spent $77,313.47 in auditor‘s race, with expenditure limit of $45,000, and outspent opponent by 20%, although she had testified at trial that she would abide by Act 64‘s limit in that race); Trial Tr. vol. IX, at 147-51 (Elizabeth Ready) (testifying that she exceeded the current expenditure limits in four of her six senate races). In the view of some of these witnesses, of course, contested elections are “arms races” that should be prohibited. See Trial Tr. vol. IX, at 147-151 (Elizabeth Ready). See infra Part V(d)(1).
330 2) Effect of Act 64‘s Expenditure Limits on Candidates
331 Act 64‘s expenditure limits will, therefore, greatly hamper Vermont candidates in getting their message to the public. The Secretary of State has noted that the expenditure limit for State Treasurer—$45,000—leaves, after advertising, “no money to hire a campaign manager, do direct mail, lawn signs or bumper stickers.” David Gram, Dems Needle Each Other On Spending in Treasurer‘s Race, Associated Press, May 29, 2002. Expenditure limits should be expected to have precisely such effects because they force candidates to give exclusive priority to the methods of communication that reach the greatest number of voters.
332 The Secretary of State has also noted that the “tight contribution limits” of Act 64 were part of the cause of an “unprecedented amount” of independent expenditures in the 2000 Vermont election. See 2001 Memorandum, supra. As a result, candidates complained that “mailings or advertisements made on their behalf attributed to them opinions they did not hold, or sent negative messages about their opponent, in violation of their stated intent to run a positive campaign.” Id. Expenditure limits will encourage even more extra-campaign spending and leave candidates without the means to set the record straight.
333 Even grassroots “meet the candidate” events in supporters’ homes are severely limited, see 1999 Memorandum, supra, as noted above, and, although my colleagues mention, among other things, town barbecues and dinners as cheap but effective campaign methods, see Maj. Op. at 130, the nature—when and where held and how often in the campaign season—usefulness —what kind of voters and in what numbers attend—cost—who pays—and legal status under Act 64—an “expenditure” or “related expenditure“—of these events is not elaborated in the record or discussed in my colleagues’ opinion, notwithstanding the critical role such factors logically play in their opinion‘s analysis. In fact, these methods may be neither cheap—at least by Act 64‘s meager standards—nor effective.
334 There is, therefore, simply no data in the record suggesting that anything other than a drastic reduction of political speech will result from Act 64‘s expenditure limits. Indeed, the effect will likely be much harsher than most would expect for the reasons that follow.
335 First, low limits exacerbate the highly discriminatory and arbitrary effect of Act 64‘s selection of a two-year cycle. In a single-member Vermont House district, a candidate may spend—counting related individual and party expenditures—only $2,000 over the two-year cycle.
336 Second, the harshness of the limits on candidate expenditures is greatly exacerbated by the fact that a candidate‘s campaign cannot expect the candidate‘s party to provide the usual supplemental support of polls, offices, computers, phones, advertisements, mailings, and other events, such as a party-funded booth at a country fair, if the conduct “primarily benefits” fewer than seven candidates. See supra notes 12, 14. Parties may make contributions and related expenditures benefiting candidates that total, over a two-year period, no more than $400 for each candidate for statewide office, $300 for each candidate for the Senate, and $200 for each candidate for the House. See supra Part III(b)-(c). In Vermont, there are six statewide offices, thirty State Senators, and 150 State Representatives. Under Act 64, a political party—the state party and all affiliates combined—can, over a two-year period, make a total of only $41,400 in contributions to, or related expenditures on behalf of, all its candidates for non-federal office.
337 Although Colorado II allows such restrictions, 533 U.S. at 465, 121 S. Ct. 2351, their effect must be considered in gauging the impact of candidate expenditure limits. A statewide poll regarding candidates for the six statewide offices would cost over $6,000. Letter from Mark F. Michaud, Vermont Democratic Party, to Vermont Attorney General William Sorrell 1 (Feb. 28, 2002). If the poll data were shared with the six candidates, the poll would exceed Act 64‘s limits ($400 by 6) by over 100%. See Appendix A. The full effect of Act 64‘s limits has, of course, not been experienced yet,19 because the district court invalidated candidate expenditure limits and the contribution/related expenditure limits on political parties. With these limits now revived, limits on expenditures by candidates will dramatically lessen political debate in Vermont.
338 Finally, as noted, Act 64‘s one-size-fits-all approach makes no provision for candidates to adjust to economic, demographic, cultural, or technological changes that increase the costs of campaigns. Although Act 64 is premised on the view that elections are “too expensive“—a view expressly rejected as a valid reason for expenditure limits in Buckley, 424 U.S. at 57, 96 S. Ct. 612—and that candidates can make them cheaper, the “costs” of campaigning are not within the control of candidates.
339 The costs of resources to be used in campaigns are determined by competitive markets. Resources used in campaigns are also used, and far more extensively, for non-political communication. The prices of those resources are therefore set in markets that are independent of political campaigns and in which candidates for office must compete with non-political consumers. An inability to pay market price for communication resources will stifle political speech. Nevertheless, there is no provision for future inflation in Act 64‘s limits, although even slight annual increases in the consumer price index will in a few short years substantially reduce further the ability of candidates to communicate with voters. For example, the cost of postage stamps is now higher than when Act 64 was passed. See It Now Costs 3 Cents More to Mail a First-Class Letter, N.Y. Times, June 30, 2002, at 18. For another example, the price of gasoline has risen considerably since then.
As noted above, the effect of rising costs has already been observed by Vermont‘s Secretary of State. With regard to a campaign for State Treasurer—with an expenditure limit of $45,000—she noted that, “The cost of paid media has changed quite a bit in the last four or five years. With prices for television ads, and even radio ads, running a campaign on $45,000 will leave you no money to hire a campaign manager, do direct mail, lawn signs or bumper stickers.” David Gram, Dems Needle Each Other on Spending in Treasurer‘s Race, Associated Press, May 29, 2002. It goes without saying that there also would be no room under the spending cap for grassroots activities that would have to be included as related expenditures.
V. THE CONSTITUTIONAL RESOLUTION
1) Anti-Corruption
2) Time Protection
3) Public Confidence in Government
Perhaps the implication is that spending becomes superfluous at some point but candidates have no idea where that point is and continue to spend anyway. However, if the critical point cannot be determined by a candidate in a particular campaign, it certainly cannot be determined on a one-size-fits-all basis by a self-interested legislature or by a reviewing court.
3) Incumbent Protection
VI. THE REMAND ON NARROW TAILORING
(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.
VII. CONCLUSION
APPENDIX A
State of Vermont
Office of the Secretary of State
December 3, 1999
Representative Terry Bouricius
56 Booth Street
Burlington, VT 05401
Re: Your e-mail of October 8, 1999
Kathleen S. DeWolfe
Director of Elections and Campaign Finance
Notes:
Notes
Act 64 contains the following pertinent provisions. It states, by way of definition:
“Political party” means a political party organized under chapter 45 of this title or any committee established, financed, maintained, or controlled by the party, including any subsidiary, branch or local unit thereof and including national or regional affiliates of the party.
The Act further provides:
Candidates who have made expenditures or received contributions of $500.00 or more and political committees shall be subject to the following requirements:
(1) All expenditures shall be paid by check from a single checking account in a single bank publicly designated by the candidate or political committee.
(2) Each candidate and each political committee shall name a treasurer, who may be the candidate or spouse, who is responsible for maintaining the checking account.
Each political committee and each political party which has accepted contributions or made expenditures of $500.00 or more shall register with the secretary of state stating its full name and address, the name of its treasurer, and the name of the bank in which it maintains its campaign checking account within ten days of reaching the $500.00 threshold.
I do not read these provisions to prevent local affiliates from having separate bank accounts. I do read them, however, to require that all contributions to parties go initially to the single checking account mentioned in
When Randolph Phillips, one of the sponsors of the ad, told this story to the lawyers at the New York Civil Liberties Union, we were incredulous. How could a group of citizens be sued by the Federal Government for publishing a criticism of the President of the United States? After all, this was 1972, and First Amendment law seemed at its most vigorous in the protections of public speech, one of the shining legacies of the Warren Court. What possible justification could the government have for suing this small group of protestors? We soon discovered the answer: campaign finance reform.” Joel M. Gora, No Law ... Abridging, 24 Harv. J.L. & Pub. Pol‘y 841, 842-43 (2001) (reviewing Bradley A. Smith, Unfree Speech (2001)) (footnote omitted). The law in question was the Federal Election Campaign Act of 1971, which defined a political committee as any group that spent more than $1,000 annually “for the purpose of influencing“—language used in Act 64—a federal election and imposed various requirements on a committee‘s purchase of advertisements relating to a federal candidate. See United States v. Nat‘l Comm. for Impeachment, 469 F.2d 1135, 1139 (2d Cir. 1972).
The pertinent provision reads:
“Expenditure” means a 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.
More recently, in their respective McConnell dissents, Justices Scalia, Kennedy and Thomas observed with dismay that the McConnell majority went even further than the Court had gone in Buckley. See McConnell, 540 U.S. at ___, 124 S.Ct. at 729 (Scalia, J., concurring in part and dissenting in part) (characterizing the majority as “having abandoned most of the First Amendment weaponry that Buckley left intact“); id. at ___, 124 S.Ct. at 742 (Kennedy, J., concurring in part and dissenting in part) (“To reach today‘s decision, the Court surpasses Buckley‘s limits and expands Congress’ regulatory power.“); id. at ___, 124 S.Ct. at 730 (Thomas, J., concurring in part and dissenting in part) (accusing the majority of building upon the errors of Buckley by “expanding the anticircumvention rationale beyond reason“). Hence, it would be unrealistic for us to fail to notice the Court‘s expanding views.
My colleagues assert that any vagueness in this phrase is “eliminated” by the limiting definition of “expenditure” inMy colleagues assert that the phrase expenditures “for the purpose of influencing an election” was “upheld” against a claim of unconstitutional vagueness by the Supreme Court in Buckley. Maj. Op. at 136 n.26. In fact, what the Court said was virtually the opposite.
The relevant passage in Buckley addressed a limit “for the purpose of influencing an election” on expenditures by persons who were neither candidates nor political committees. The “for the purpose of . . .” language was modified by the phrase “relative to a clearly identified candidate.” Buckley stated that the definition of expenditures was unconstitutionally vague unless the adjectival phrase was construed narrowly to apply only to “communications that in express terms advocate the election or defeat of a clearly identified candidate.” 424 U.S. at 44, 96 S.Ct. 612 (expenditure limits apply only “to communications containing express words of advocacy of election or defeat, such as `vote for,’ `elect,’ `support,’ `cast your ballot for,’ `Smith for Congress,’ `vote against,’ `defeat,’ `reject‘“, id. at n. 52, 96 S.Ct. 612; limits struck down on other grounds). As to reporting requirements imposed on persons who were neither candidates nor political committees regarding expenditures and contributions not made to candidates or political committees, the Court also held those to be impermissibly vague unless the phrase “for the purpose of influencing an election” was construed “in the same way” as the aforementioned terms, i.e., to apply only to expenditures and contributions expressly advocating the election or defeat of a clearly identified candidate. Id. at 80, 96 S.Ct. 612.
Act 64 does not contain the language “relative to a clearly identified candidate,” and relevant Vermont authorities have not construed Act 64 in this limited manner, see 2001 Guide, supra. As a result, the holding in Buckley invalidates Act 64‘s expenditure limits for vagueness.
As Secretary of State, Markowitz has enhanced the office‘s services to Vermont‘s businesses, banks and professionals. She has made customer service a priority and created a state of the art web site to serve the business community. Markowitz has also protected consumers of professional services by reducing the backlog of professional licensing complaints and by starting a public information campaign to inform consumers of their rights to competent professional services. Markowitz has also promoted civics education in Vermont‘s schools and has encouraged Vermonters to be active participants in democracy by volunteering in town government and by voting.
Id. at http://www.sec.state.vt.us/secdesk/marko.html.
The Vermont Attorney General‘s Office has a similar website. The first page houses a photograph of the incumbent, whose biography page reads as follows:
Welcome to the Home Page for Vermont Attorney General William H. Sorrell. The Attorney General is the chief law enforcement officer in the state. He is charged with representing the state in all matters in which the state is a party or has an interest. The office of the Attorney General is dedicated to the protection of the health and safety of all Vermonters
A native and resident of Burlington, Vermont, Attorney General William H. Sorrell graduated from the University of Notre Dame (AB, magna cum laude, 1970) and Cornell Law School (JD, 1974). Bill served as Chittenden County Deputy State‘s Attorney from 1975-1977; Chittenden County State‘s Attorney, 1977-78 and 1989-1992; engaged in private law practice at McNeil, Murray & Sorrell, 1978-1989; and served as Vermont‘s Secretary of Administration, 1992-1997. As State‘s Attorney, he personally successfully prosecuted several significant matters, including the first case allowing the admissibility of DNA evidence in a Vermont State Court and a ten-year-old homicide in which the victim‘s body had never been found.
Governor Howard Dean appointed General Sorrell to fill the unexpired term of now Vermont Chief Justice Jeffrey Amestoy, commencing May 1, 1997. He has enjoyed strong voter support in standing for election in November 1998, 2000 and 2002. His current term of office will expire in January 2005.
Bill is on the board of the American Legacy Foundation; has served on the Judicial Nominating Board; as president of United Cerebral Palsy of Vermont; secretary of the Vermont Coalition of the Handicapped; and on the board of the Winooski Valley Park District. Bill has recently been elected the President-Elect of the National Association of Attorneys General (NAAG) and will assume the Presidency of that organization for a one-year term beginning in June of 2004. He is chair of the NAAG Tobacco Committee and co-chair of its Consumer Protection Committee. In June of 2003, Bill was selected by his peers from around the country to receive NAAG‘s Kelley-Wyman Award, given annually to the “Outstanding Attorney General” who has done the most to further the goals of the nation‘s attorneys general.
Office of the Vermont Attorney General, at http://www.atg.state.vt.us/display.php?smod=70.
The pertinent provision reads:
“Candidate” means an individual who has taken affirmative action to become a candidate for state, county, local or legislative office in a primary, special, general or local election. An affirmative action shall include one or more of the following:
(A) accepting contributions or making expenditures totalling $500.00 or more; or
(B) filing the requisite petition for nomination under this title or being nominated by primary or caucus; or
(C) announcing that he seeks an elected position as a state, county or local officer or a position as representative or senator in the general assembly.
The pertinent provision reads:
“Contribution” means a payment, distribution, advance, deposit, loan or gift of money or anything of value, paid or promised to be paid to a person for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates in any election, but shall not include services provided without compensation by individuals volunteering their time on behalf of a candidate, political committee or political party. For purposes of this chapter, “contribution” shall not include a personal loan from a lending institution.
Our dissenting colleague criticizes Vermont‘s reliance on this type of anecdotal evidence but the Supreme Court expressly credited similar testimony in McConnell where, as here, the record was “replete” with anecdotal examples of the type of access-peddling that concerned Congress. McConnell, 540 U.S. at ___, 124 S.Ct. at 664. The McConnell Court specifically observed the type of “particularized evidence of improper influence” required by our dissenting colleague, post at 190, would be particularly hard to come by. “Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize.” McConnell, 540 U.S. at ___, 124 S.Ct. at 666.
Section 2809(c) also states that “a related expenditure shall involve any expenditure by a person, when at any time during the election cycle... (1) there is any arrangement, coordination, or direction with respect to the expenditure between the candidate... and the person... (2) the person... has been authorized to raise or expend funds on behalf of the candidate... (3) the person... is a political party committee... and the expenditure is made for the benefit of six or fewer candidates... or (4) the person... is a political committee or a political party committee and the candidate... has participated in fundraising or other activities for the committee...”The pertinent provision reads:
For the purposes of this section, a “related campaign expenditure made on the candidate‘s behalf” means any expenditure intended to promote the election of a specific candidate or group of candidates, or the defeat of an opposing candidate or group of candidates, if intentionally facilitated by, solicited by or approved by the candidate or the candidate‘s political committee.
Section 2809(b) reads in full:
A related campaign expenditure made on a candidate‘s behalf shall be considered an expenditure by the candidate on whose behalf it was made. However, if the expenditure did not exceed $50.00, the expenditure shall not be considered an expenditure by the candidate on whose behalf it was made.
Section 2809(d) reads in full:
An expenditure made by a political party or by a political committee that recruits or endorses candidates, that primarily benefits six or fewer candidates who are associated with the political party or political committee making the expenditure, is presumed to be a related expenditure made on behalf of those candidates. An expenditure made by a political party or by a political committee that recruits or endorses candidates, that substantially benefits more than six candidates and facilitates party or political committee functions, voter turnout, platform promotion or organizational capacity shall not be presumed to be a related expenditure made on a candidate‘s behalf. In addition, an expenditure shall not be considered a “related campaign expenditure made on the candidate‘s behalf” if all of the following apply:
(1) The expenditures were made in connection with a campaign event whose purpose was to provide a group of voters with the opportunity to meet the candidate personally.
(2) The expenditures were made only for refreshments and related supplies that were consumed at that event.
(3) The amount of the expenditures for the event was less than $100.00.
Some may doubt that Act 64 was intended to apply to media editorializing because they deem such editorializing to be constitutionally protected. However, paid advertisements have the same protection as editorials, see Sullivan, 376 U.S. at 266, 84 S.Ct. 710 (holding that “statements [that] would otherwise be constitutionally protected ... do not forfeit that protection because they were published in the form of a paid advertisement“), and if government may constitutionally limit paid advertisements, as Act 64 does, government may limit unpaid endorsements. I, of course, believe that government cannot limit either.
The reason many campaign finance laws exempt the media is, therefore, not constitutional scruple, but the desire of proponents of regulation for media exposure and support. Such support might not be forthcoming if the media realized the extent to which the theory of such laws is a dagger easily aimed at freedom of the press.
My colleagues cite a Sixth Circuit concurrence for the proposition that Buckley was “`decided on a slender factual record,‘” Maj. Op. at 109 (citing Kruse v. City of Cincinnati, 142 F.3d 907, 919 (6th Cir.1998) (Cohn, J., concurring)). To this they add citations to a treatise, a law review article, and a student note for the proposition that Buckley was decided without a “factual” record. The authors of these works could not have been familiar with the actual record before the Court in Buckley, which contained over 700 pages of statistical and testimonial data and findings of fact, as described below. Those materials are a matter of public record, and the Buckley briefs and oral arguments can be found in a published, two-volume work. 1976 Landmark Briefs and Arguments of the Supreme Court of the United States: Buckley v. Valeo (Phillip B. Kurland and Gerhard Casper, eds. 1977) (hereinafter ”Landmark Briefs“).
Buckley involved a major piece of legislation passed after extensive congressional hearings in which critics of the private financing of elections supported their case with massive submissions of evidence. Legislative History of Federal Election Campaign Act Amendments of 1974, The Federal Election Commission (1977). The Supreme Court‘s decision indicated familiarity with this body of evidence. See, e.g., Buckley, 424 U.S. at 20 nn. 20-21, 96 S.Ct. 612 (giving election-related statistics); id. at 22 n. 23, 96 S.Ct. 612 (same); id. at 26 n. 27, 96 S.Ct. 612 (same). Other materials before the Supreme Court in Buckley include, inter alia, a Joint Appendix of 762 pages, which compiled findings of fact and statistical findings agreed to by the parties, Joint Appendix at 4-698, Buckley (Nos. 75-436 and 75-437), and the district court‘s findings of fact, id. at 699-753.
The agreed upon findings of fact included data from opinion polls on public perceptions of politicians, political participation, expenditure limits, and cynicism about government, id. at 160-89, 207-53, detailed catalogs of specific contributions by labor unions, PACs, and business organizations to individual candidates, id. at 55-146, data on expenditures in presidential elections from 1912 to 1968 indicating increasing spending and an increasing cost per vote, id. at 50-51, the cost of postage and newspaper advertising, id. at 29-32, advantages of incumbents over challengers, id. at 16-24, statistics indicating declining voter participation, id. at 9, evidence that candidates generally focused on wealthy donors but that candidates who limited their expenditures had been successful in the past, id. at 256-59, and evidence that elected officials give preferential access to large contributors, id. at 256-57.
The agreed upon statistical findings included data on and analysis of contributions to, expenditures by, and election results for, all congressional candidates and political committees that filed reports in the 1972 and 1974 elections, id. at 270-440, 571-72, 619-78, votes received by challengers versus incumbents in the 1974 House races, id. at 679-96, evidence of specific individuals and groups donating money to congressional candidates on committees relevant to their businesses, id. at 462-64, 467-72, statistics on independent expenditures, id. at 472-73, data on individuals who contributed large sums to 1972 congressional elections and the Committee to Reelect the President, id. at 479-564, a detailed analysis of the 1972 elections which discussed, among other things, the costs of raising money from large versus small donors and the relationship of expenditures to success in elections, id. at 571-586, and a ten volume study by Common Cause entitled 1972 Congressional Campaign Finances, id. at 698.
The Buckley district court‘s findings of fact were based on the testimony and affidavits of fifteen individuals, and basically summarized that testimony. Id. at 699. These findings included opinions on the importance of seed money to challengers, id. at 703, 714, the ways in which expenditure limits favor incumbents over challengers and third party candidates, id. at 727-33, 713-19, indices of success other than winning or losing, id. at 712, and the ability to run a successful campaign with little money, id.
In Buckley, therefore, the Court had before it extensive hard data regarding contributions to, and expenditures by, candidates for federal offices, as well as a multitude of reflections and opinions on the role of money in campaigns by persons familiar with American electoral politics. Moreover, the defense in Buckley included not only the government but also various groups, including Common Cause and the League of Women Voters, who were allowed to intervene as full parties and were represented by the Washington law firm, Wilmer, Cutler, and Pickering and by Archibald Cox of the Harvard Law School, a former Solicitor General of the United States.
Judge Winter‘s fundamental disagreement with our opinion seems not to be one of appropriate characterization of facts. Rather, his dispute with our position is that he believes that a remand is unnecessary because there is nothing more to be learned. Obviously, we disagree. There are gaps in the record — likely the result of the District Court‘s abridged consideration of the issue of narrow tailoring — that ought be filled before any court undertakes to resolve the ultimate issue in this case: whether there are less restrictive alternatives that could have advanced Vermont‘s compelling interests.
The D.C. Circuit stated: “It is not merely that the fundraising consumes time; it is that the time is being consumed by the very persons whose services are most needed for the legislative and other duties for which they were elected.” Buckley, 519 F.2d at 838.See Buckley v. Valeo, 519 F.2d 821, 838 (D.C.Cir.1975). The Court of Appeals found that:
In practice ... candidates were compelled to allot to fund raising increasing and extreme amounts of time and energy. Senator Hollings testified that survival required candidates for national office to “set down a policy where they won‘t go see people other than those who can give money.” Joseph Cole, finance chairman for the Democratic National Committee, testified from his experience in some four or five Presidential campaigns, how dog-tired candidates must arise early in pursuit of large contributions, and continue “all day long and all night long.” “[How] much time do you think a Presidential candidate spends on fund raising? ... at least 70 percent of his time, and I think all of his waking hours. It is really demeaning, demeaning to go through it.”
Id. (footnotes omitted).
We reject the suggestion that we are overly focused on what the legislature did. Of course, the ultimate issue for the District Court on remand is whether there exists a less restrictive type or degree of regulation that would serve Vermont‘s compelling anti-corruption and time-protection interests; it is not merely whether the legislature considered such an alternative. See supra at 132-35. Because our dissenting colleague concludes, without citation, that “a combination of public and private financing with low contribution limits is infinitely less restrictive ... and accomplishes all of the ostensible purposes of Act 64‘s expenditure limits,” he deems a remand unnecessary. See post at 207. We, however, do not believe that proposition to be self-evident, nor is it supported by the current record.
We are loath to presume, on an incomplete record, the reasons for the legislature‘s decision not to pursue such alternatives and we believe the District Court‘s — and perhaps eventually this Court‘s — evaluation of whether less restrictive alternatives exist will undoubtedly be aided by the legislature‘s own analysis of those alternatives, to the extent such analysis occurred. Indeed, even a modicum of deference to the legislature and consideration for principles of federalism would seem to require consideration of its reasons for rejecting a potentially-less-restrictive alternative scheme. But see post at 207 (concluding that the only possible reason for rejecting such a measure is the drafters’ ulterior, incumbent-protective motive).
So as not to restrict its proceedings upon remand in any way — and to avoid the strictures of the mandate rule, see, e.g., United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir.2001) (explaining that the mandate rule “compels compliance on remand with the dictates of the superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court“) (citation, emphasis and internal quotation marks omitted) — we have elected to speak broadly in framing the inquiry to be undertaken on remand. To do as our dissenting colleague suggests, on the limited record before us, would unnecessarily and unwisely encroach on the essential role of the district judge in these proceedings.
“The expenditure limitations were intended not only to reduce the pressure to solicit large contributions but also to reduce the sheer amount of time that a candidate must spend on the fundraising process. The escalating costs of political campaigns have forced many candidates to devote a substantial portion of their time to the solicitation of contributions rather than to the expression of their views on the issues and their own qualifications. . . . Congress could properly conclude that a limitation on overall campaign expenditures is an appropriate means of allowing candidates to devote more of their time to the communication of ideas and less to the solicitation of funds.” Brief for the Attorney General and the Federal Election Commission at 80-81, Buckley (Nos. 75-436 and 75-437).See Landmark Briefs: 2 Buckley v. Valeo (Brief for the Attorney General as Appellee and for the United States as Amicus Curiae). The relevant section of the brief stated:
Fund raising consumes candidate time that otherwise would be devoted to campaigning.
The court of appeals found support for the statute in the fact that in order to raise large amounts of money to support a campaign, “candidates [are] compelled to allot to fund raising increasing and extreme amounts of time and energy.” A past finance chairman of the Democratic National Committee testified that a presidential candidate is required to spend 70 percent of his time in pursuit of funds.
There is, of course, another side to this problem. If the idea is that expenditure limits relieve the pressure of raising funds, thereby giving the candidate more time to engage in speaking, there may be effective alternative means of accomplishing this end. For example, public financing of election campaigns, quite independent of restrictions upon contributions and expenditures, will provide some relief. A restriction on contributions will increase this effect even without an accompanying restriction on expenditures; once candidates are precluded from drawing upon wealthy donors who command personal attention, campaign fund raising may turn more to direct mail efforts that are sparing of the candidate‘s time.
Id. at 434-35 (internal citations and footnotes omitted).
The dissent takes issue specifically with several aspects of the statutory language that pertain to the expenditure limits — that the spending is made “for the purpose of influencing an election,” that it applies to “anything of value,” and the spending is attributable to a “candidate.” See post at 161-65. Of these, the first two provisions have been a part of federal and state campaign finance laws for decades, and they have been upheld by the Supreme Court. See Buckley, 424 U.S. at 145-47, 96 S.Ct. 612;
Finally, we note that, of course, as with all campaign finance regulations, minor ambiguities, omissions or statutory quirks will be resolved in the normal course of administrative interpretation, legislative amendment and litigation. In any event, the ambiguities raised by the dissent do not, we believe, render the statute unconstitutional. Indeed, though raising the specter of a multitude of pitfalls latent in the statutory text, even our dissenting colleague would uphold the constitutionality of the majority of the Act — despite that many of those same ambiguities speak to portions of the Act unanimously upheld in Part II of this opinion.
“The sheer burden of fundraising distracts candidates from the actual business of campaigning for office and incumbents from the tasks of government. The record shows that in modern campaigns fundraising consumes massive amounts of candidate time.” Brief for Appellees at 72-73, Buckley (Nos. 75-436 and 75-437) (internal citations omitted).See Landmark Briefs: 2 Buckley v. Valeo (Brief for Appellee Center for Public Financing of Elections, Common Cause, League of Voters, et al.). The brief stated:
Th[e] rising thirst for money has forced candidates to divert time and energy to fund-raising activities and away from other activities, such as addressing the substantive issues, that do not fill campaign coffers. Joseph Cole, who was National Finance Chairman of the Democratic National Committee, vividly recounted the effects of the pressure to raise money on candidates in a passage quoted by the court of appeals:
“. . . 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.”
Id. at 97, 96 S.Ct. 612 (footnotes omitted); see also Landmark Briefs: 2 Buckley v. Valeo, (Brief of Senators Hugh Scott and Edward M. Kennedy as Amici Curiae) (“The pressure upon candidates to raise money from large contributors had become so great as to leave them little time for ordinary citizens.“) (footnote omitted).
See Buckley v. Valeo, 424 U.S. at 91, 96 S.Ct. 612 (“In this case, Congress was legislating for the `general welfare’ . . . to free candidates from the rigors of fundraisers“); id. at 96, 96 S.Ct. 612 (“In addition, the limits on contributions necessarily increase the burden of fundraising, and Congress properly regarded public financing as an appropriate means of relieving major-party Presidential candidates from the rigors of soliciting private contributions.“); S. Rep. 93-689, 5 (cited in above quotations from Buckley, and justifying public financing because “[m]odern campaigns are increasingly expensive and the necessary fundraising is a great drain on the time and energies of the candidates“); see also Buckley, 424 U.S. at 258-59, 96 S.Ct. 612 (White, J., concurring in part and dissenting from the Court‘s view that the expenditure limits were unconstitutional) (“In another major innovation, aimed at insulating candidates from the time consuming and entangling task of raising huge sums of money, provision was made for public financing of political campaigns for federal office.“).
For example, the Court of Appeals in Buckley stated:
Looming large in the perception of the public and Congressmen was the revelation concerning the extensive contributions by dairy organizations to Nixon fund raisers, in order to gain a meeting with White House officials on price supports. The industry pledged $2,000,000 to the 1972 campaign, a pledge known to various White House officials, with President Nixon informed directly by Charles Colson in September 1970, as acknowledged by the 1974 White House paper .... On March 23, 1971, after a meeting with dairy organization representatives, President Nixon decided to overrule the decision of the Secretary of Agriculture and to increase price supports. In the meetings and calls that immediately followed the internal White House discussion and preceded the public announcement two days later, culminating in a meeting held by Herbert Kalmbach at the direction of John Ehrlichman, the dairymen were informed of the likelihood of an imminent increase and of the desire that they reaffirm their $2 million pledge. 519 F.2d at 840 n. 36.
My colleagues suggest in a footnote citing to McConnell, see Maj. Op. at 117, n.12, that speech may be suppressed based solely on anecdotal evidence, and that reliance on a couple of untested and untestable anecdotes from Act 64‘s supporters is sufficient. However, McConnell—which dealt with contributions, not expenditures—does not stand for any such proposition. McConnell explained specifically how “[t]he evidence connects soft money to manipulations of the legislative calendar, leading to Congress’ failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation.” 124 S.Ct. at 664 (citing among other sources the declaration of former Senator Alan Simpson that “Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform“). McConnell also noted that
The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries.... federal officeholders have commonly asked donors to make soft-money donations to national and state committees “solely in order to assist federal campaigns,” including the officeholder‘s own. Parties kept tallies of the amounts of soft money raised by each officeholder, and “the amount of money a Member of Congress raise[d] for the national political committees often affect[ed] the amount the committees g[a]ve to assist the Member‘s campaign.” Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. National party committees often teamed with individual candidates’ campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party‘s higher contribution limits while still allowing donors to give to their preferred candidate. Even when not participating directly in the fundraising, federal officeholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to officeholders.
For their part, lobbyists, CEOs, and wealthy individuals alike all have candidly admitted donating substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials.
Id. at 662-63 (quoting and citing statements by politicians, CEOs and lobbyists).
To support their argument that anecdotal evidence may, by itself, serve to repress speech, my colleagues parse McConnell‘s statement that “The record in this case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations.” Id. at 664, see Maj. Op. at 117 n.12. In fact, this statement does not reference a record “replete” with anecdotal evidence, as my colleagues seem to believe, but introduces a factual discussion:
So pervasive is this practice that the six national party committees actually furnish their own menus of opportunities for access to would-be soft-money donors, with increased prices reflecting an increased level of access. For example, the DCCC offers a range of donor options, starting with the $10,000-per-year Business Forum program, and going up to the $100,000-per-year National Finance Board program. The latter entitles the donor to bimonthly conference calls with the Democratic House leadership and chair of the DCCC, complimentary invitations to all DCCC fundraising events, two private dinners with the Democratic House leadership and ranking members, and two retreats with the Democratic House leader and DCCC chair in Telluride, Colorado, and Hyannisport, Massachusetts. Similarly, “the RNC‘s donor programs offer greater access to federal office holders as the donations grow larger, with the highest level and most personal access offered to the largest soft money donors.”
Id. at 665 (noting parenthetically “records indicating that DNC offered meetings with President in return for large donations“).