RANDALL ET AL. v. SORRELL ET AL.
No. 04-1528
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued February 28, 2006-Decided June 26, 2006
548 U.S. 230
*Together with No. 04-1530, Vermont Republican State Committee et al. v. Sorrell et al., and No. 04-1697, Sorrell et al. v. Randall et al., also on certiorari to the same court.
William H. Sorrell, Attorney General of Vermont, pro se, argued the cause for respondents in Nos. 04-1528 and 04-1530 and cross-petitioners in No. 04-1697. With him on the brief were Timothy B. Tomasi, Eve Jacobs-Carnahan, and Bridget C. Asay, Assistant Attorneys General, and Carter G. Phillips.
Brenda Wright argued the cause for respondents/cross-petitioners Vermont Public Interest Research Group et al. With her on the brief were Lisa J. Danetz, John C. Bonifaz, Thomas C. Goldstein, and Scott P. Lewis.†
We here consider the constitutionality of a Vermont campaign finance statute that limits both (1) the amounts that candidates for state office may spend on their campaigns (expenditure limitations) and (2) the amounts that individuals, organizations, and political parties may contribute to those campaigns (contribution limitations).
I
A
Prior to 1997, Vermont‘s campaign finance law imposed no limit upon the amount a candidate for state office could spend. It did, however, impose limits upon the amounts that individuals, corporations, and political committees could contribute to the camрaign of such a candidate. Individuals and corporations could contribute no more than $1,000 to any candidate for state office.
In 1997, Vermont enacted a more stringent campaign finance law, Pub. Act No. 64, codified at
“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.”
§ 2801(3) .
With certain minor exceptions, expenditures over $50 made on a candidate‘s behalf by others count against the candidate‘s expenditure limit if those expenditures are “intentionally facilitated by, solicited by or approved by” the candidate‘s campaign.
Act 64 also imposes strict contribution limits. The amount any single individual can contribute to the campaign of a candidate for state office during a “two-year general election cycle” is limited as follows: governor, lieutenant governor, and other statewide offices, $400; state senator, $300; and state representative, $200.
A political committee is subject to these same limits.
The Act also imposes a limit of $2,000 upon the amount any individual can give to a political party during a 2-year general election cycle.
The Act defines “contribution” broadly in approximately the same way it defines “expenditure.”
There are a few exceptions. A candidate‘s own contributions to the campaign and those of the candidate‘s family fall outside the contribution limits.
In addition to these expenditure and contribution limits, the Act sets forth disclosure and reporting requirements and creates a voluntary public financing system for gubernatorial elections.
B
The petitioners are individuals who have run for state office in Vermont, citizens who vote in Vermont elections and
The District Court agreed with the petitioners that the Act‘s expenditure limits violate the First Amendment. See Buckley, 424 U. S. 1. The court also held unconstitutional the Act‘s limits on the contributions of political parties to candidates. At the same time, the court found the Act‘s other contribution limits constitutional. Landell v. Sorrell, 118 F. Supp. 2d 459, 470 (Vt. 2000).
Both sides appealed. A divided panel of the Court of Appeals for the Second Circuit held that all of the Act‘s contribution limits are constitutional. It also held that the Act‘s expenditure limits may be constitutional. Landell v. Sorrell, 382 F. 3d 91 (2004). It found those limits supported by two compelling interests, namely, an interest in preventing corruption or the appearance of corruption and an interest in limiting the amount of time state officials must spend raising campaign funds. The Circuit then remanded the case to the District Court with instructions to determine whether the Act‘s expenditure limits were narrowly tailored to those interests.
The petitioners and respondents all sought certiorari. They asked us to consider the constitutionality of Act 64‘s expenditure limits, its contribution limits, and a related definitional provision. We agreed to do so. 545 U. S. 1165 (2005).
II
We turn first to the Act‘s expenditure limits. Do those limits violate the First Amendment‘s free speech guarantees?
In Buckley v. Valeo, supra, the Court considered the constitutionality of the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, as amended,
Buckley stated that both kinds of limitations “implicate fundamental First Amendment interests.” 424 U. S., at 23. It noted that the Government had sought to justify the statute‘s infringement on those interests in terms of the need to prevent “corruption and the appearance of corruption.” Id., at 25; see also id., at 55. In the Court‘s view, this rationale provided sufficient justification for the statute‘s contribution limitations, but it did not provide sufficient justification for the expenditure limitations.
The Court explained that the basic reason for this difference between the two kinds of limitations is that expenditure limitations “impose significantly more severe restrictions on protected freedoms of political expression and association than” do contribution limitations. Id., at 23. Contribution limitations, though a “marginal restriction upon the contributor‘s ability to engage in free communication,” nevertheless leave the contributor “fre[e] to discuss candidates and issues.” Id., at 20-21. Expenditure limitations, by contrast, impose “[a] restriction on the amount of money a person or group can spend on political communication during a campaign.” Id., at 19. They thereby necessarily “reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Ibid. Indeed, the freedom “to engage in unlimited political expression subject to a ceiling on expenditurеs is like being free to drive an automobile as far
The Court concluded that “[n]o governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by” the statute‘s expenditure limitations. Id., at 55. It decided that the Government‘s primary justification for expenditure limitations, preventing corruption and its appearance, was adequately addressed by the Act‘s contribution limitations and disclosure requirements. Ibid. The Court also considered other governmental interests advanced in support of expenditure limitations. It rejected each. Id., at 56-57. Consequently, it held that the expenditure limitations were “constitutionally invalid.” Id., at 58.
Over the last 30 years, in considering the constitutionality of a host of different campaign finance statutes, this Court has repeatedly adhered to Buckley‘s constraints, including those on expenditure limits. See McConnell v. Federal Election Comm‘n, 540 U. S. 93, 134 (2003); Federal Election Comm‘n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 441 (2001) (Colorado II); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 386 (2000) (Shrink); Colorado Republican Federal Campaign Comm. v. Federal Election Comm‘n, 518 U. S. 604, 610 (1996) (Colorado I) (plurality opinion); Federal Election Comm‘n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 259-260 (1986); Federal Election Comm‘n v. National Conservative Political Action Comm., 470 U. S. 480, 491 (1985); California Medical Assn. v. Federal Election Comm‘n, 453 U. S. 182, 194-195 (1981) (plurality opinion).
B
1
The respondents recognize that, in respect to expenditure limits, Buckley appears to be a controlling-and unfavorable-precedent. They seek to overcome that precedent in
Second, in the alternative, they ask us to limit the scope of Buckley significantly by distinguishing Buckley from the present case. They advance as a ground for distinction a justification for expenditure limitations that, they say, Buckley did not consider, namely, that such limits help to protect candidates from spending too much time raising money rather than devoting that time to campaigning among ordinary voters. We find neither argument persuasive.
2
The Court has often recognized the “fundamental importance” of stare decisis, the basic legal principle that commands judicial respect for a court‘s earlier decisions and the rules of law they embody. See Harris v. United States, 536 U. S. 545, 556-557 (2002) (plurality opinion) (citing numerous cases). The Court has pointed out that stare decisis “‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.‘” United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) (quoting Payne v.Tennessee, 501 U. S. 808, 827 (1991)). Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional, and requires “special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984). This is especially true where, as here, the principle has become settled through iteration and reiteration over a long period of time.
We can find here no such special justification that would require us to overrule Buckley. Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles. Cf. Dickerson v. United States, 530 U. S. 428, 443 (2000). We cannot find in the respondents’ claims any demonstration that circumstances have changed so radically as to undermine Buckley‘s critical factual assumptions. The respondents have not shown, for example, any dramatic increase in corruption or its appearance in Vermont; nor have they shown that expenditure limits are the only way to attack that problem. Cf. McConnell v. FEC, 540 U. S. 93. At the same time, Buckley has promoted considerable reliance. Congress and state legislatures have used Buckley when drafting campaign finance laws. And, as we have said, this Court has followed Buckley, upholding and applying its reasoning in later cases. Overruling Buckley now would dramatically undermine this reliance on our settled precedent.
For all these reasons, we find this a case that fits the stare decisis norm. And we do not perceive the strong justification that would be necessary to warrant overruling so well established a precedent. We consequently decline the respondents’ invitation to reconsider Buckley.
3
The respondents also ask us to distinguish these cases from Buckley. But we can find no significant basis for that
The sole basis on which the respondents seek to distinguish Buckley concerns a further supporting justification. They argue that expenditure limits are necessary in order to reduce the amount of time candidates must spend raising money. VPIRG Brief 16-20; Sorrell Brief 22-25. Increased campaign costs, together with the fear of a better-funded opponent, mean that, without expenditure limits, a candidate must spend too much time raising money instead of meeting the voters and engaging in public debate. Buckley, the respondents add, did not fully consider this justification. Had it done so, they say, the Court would have upheld, not struck down, FECA‘s expenditure limits.
In our view, it is highly unlikely that fuller consideration of this time protection rationale would have changed Buckley‘s result. The Buckley Court was aware of the connection between expenditure limits and a reduction in fundraising time. In a section of the opinion dealing with FECA‘s public financing provisions, it wrote that Congress was trying to “free candidates from the rigors of fundraising.” 424 U. S., at 91; see also id., at 96 (“[L]imits on contributions necessarily increase the burden of fundraising,” and “public financing” was designed in part to relieve Presidential candidates “from the rigors of soliciting private contributions“); id., at 258-259 (White, J., concurring in part and dissenting in part) (same). The Court of Appeals’ opinion and the briefs filed in this Court pointed out that a natural consequence of higher campaign expеnditures was that “candidates were compelled to allow to fund raising increasing and extreme amounts of money and energy.” Buckley v. Valeo, 519 F. 2d 821, 838
Under these circumstances, the respondents’ argument amounts to no more than an invitation so to limit Buckley‘s holding as effectively to overrule it. For the reasons set forth above, we decline that invitation as well. And, given Buckley‘s continued authority, we must conclude that Act 64‘s expenditure limits violate the First Amendment.
III
We turn now to a more complex question, namely, the constitutionality of Act 64‘s contribution limits. The parties, while accepting Buckley‘s approach, dispute whether, despite Buckley‘s general approval of statutes that limit campaign contributions, Act 64‘s contribution limits are so severe that in the circumstances its particular limits violate the First Amendment.
A
As with the Act‘s expenditure limits, we begin with Buckley. In that case, the Court upheld the $1,000 contribution limit before it. Buckley recognized that contribution limits, like expenditure limits, “implicate fundamental First Amendment interests,” namely, the freedoms of “political expression” and “political association.” 424 U. S., at 15, 23. But, unlike expenditure limits (which “necessarily reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,” id., at 19), contribution limits “involv[e] little direct restraint on” the contributor‘s speech, id., at 21. They do restrict “one aspect of the contributor‘s freedom of political association,” namely, the contributor‘s ability to support a favored candidate, but they nonetheless “per-
Consequently, the Court wrote, contribution limitations are permissible as long as the Government demonstrates that the limits are “closely drawn” to match a “sufficiently important interest.” Id., at 25. It found that the interest advancеd in the case, “prevent[ing] corruption” and its “appearance,” was “sufficiently important” to justify the statute‘s contribution limits. Id., at 25-26.
The Court also found that the contribution limits before it were “closely drawn.” It recognized that, in determining whether a particular contribution limit was “closely drawn,” the amount, or level, of that limit could make a difference. Indeed, it wrote that “contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.” Id., at 21. But the Court added that such “distinctions in degree become significant only when they can be said to amount to differences in kind.” Id., at 30. Pointing out that it had “‘no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000,‘” ibid., the Court found “no indication” that the $1,000 contribution limitations imposed by the Act would have “any dramatic adverse effect on the funding of campaigns,” id., at 21. It therefore found the limitations constitutional.
Since Buckley, the Court has consistently upheld contribution limits in other statutes. Shrink, 528 U. S. 377 ($1,075 limit on contributions to candidates for Missouri state auditor); California Medical Assn., 453 U. S. 182 ($5,000 limit on contributions to multicandidate political committees). The Court has recognized, however, that contribution limits might sometimes work more harm to protected First Amendment interests than their anticorruption objectives
B
Following Buckley, we must determine whether Act 64‘s contribution limits prevent candidates from “amassing the resources necessary for effective [campaign] advocacy,” 424 U. S., at 21; whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to survive First Amendment scrutiny. In answering these questions, we recognize, as Buckley stated, that we have “no scalpel to probe” each possible contribution level. Id., at 30. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute‘s legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have “particular expertise” in matters related to the costs and nature of running for office. McConnell, 540 U. S., at 137. Thus ordinarily we have deferred to the legislature‘s determination of such matters.
Nonetheless, as Buckley acknowledged, we must recognize the existence of some lower bound. At some point the constitutional risks to the democratic electoral process become too great. After all, the interests underlying contribution limits, preventing corruption and the appearance of corruption, “directly implicate the integrity of our electoral process.” McConnell, supra, at 136 (internal quotation marks omitted). Yet that rationale does not simply mean “the lower the limit, the better.” That is because contribution
We find those danger signs present here. As compared with the contribution limits upheld by the Court in the past, and with those in force in other States, Act 64‘s limits are sufficiently low as to generate suspicion that they are not closely drawn. The Act sets its limits per election cycle, which includes both a primary and a general election. Thus, in a gubernatorial race with both primary and final election contests, the Act‘s contribution limit amounts to $200 per election per candidate (with significantly lower limits for contributions to candidates for State Senate and House of Representatives, see supra, at 238). These limits apply both to contributions from individuals and to contributions from political parties, whether made in cash or in expenditures coordinated (or presumed to be coordinated) with the candidate. See supra, at 238-239.
Moreover, considered as a whole, Vermont‘s contribution limits are the lowest in the Nation. Act 64 limits contributions to candidates for statewide office (including governor) to $200 per candidate per election. We have found no State that imposes a lower per election limit. Indeed, we have found only seven States that impose limits on contributions to candidates for statewide office at or below $500 per election, more than twice Act 64‘s limit. Cf.
Finally, Vermont‘s limit is well below the lowest limit this Court has previously upheld, the limit of $1,075 per election (adjusted for inflation every two years, see
We recognize that Vermont‘s population is much smaller thаn Missouri‘s. Indeed, Vermont is about one-ninth of the size of Missouri. Statistical Abstract 21 (2006). Thus, per citizen, Vermont‘s limit is slightly more generous. As of
But this does not necessarily mean that Vermont‘s limits are less objectionable than the limit upheld in Shrink. A campaign for state auditor is likely to be less costly than a campaign for governor; campaign costs do not automatically increase or decrease in precise proportion to the size of an electoral district. See App. 66 (1998 winning candidate for Vermont state auditor spent about $60,000; winning candidate for governor spent about $340,000); Opensecrets.org, The Big Picture, 2004 Cycle: Hot Races, available at http://www.opensecrets.org/bigpicture/hotraces.asp?cycle=2004 (as visited June 22, 2006, and available in Clerk of Court‘s case file) (U. S. Senate campaigns identified as competitive spend less per voter than U. S. House campaigns identified as competitive). Moreover, Vermont‘s limits, unlike Missouri‘s limits, apply in the same amounts to contributions made by political parties.
The factors we have mentioned offset any neutralizing force of population differences. At the very least, they make it difficult to treat Shrink‘s (then) $1,075 limit as providing affirmative support for the lawfulness of Vermont‘s far lower levels. Cf. 528 U. S., at 404 (BREYER, J., concurring) (The Shrink “limit . . . is low enough to raise . . . a [significant constitutional] question“). And even were that not so, Vermont‘s failure to index for inflation means that Vermont‘s levels would soon be far lower than Missouri‘s regardless of the method of comparison.
C
Our examination of the record convinces us that, from a constitutional perspective, Act 64‘s contribution limits are too restrictive. We reach this conclusion based not merely on the low dollar amounts of the limits themselves, but also on the statute‘s effect on political parties and on volunteer activity in Vermont elections. Taken together, Act 64‘s substantial restrictions on the ability of candidates to raise the funds necessary to run a competitive election, on the ability of political parties to help their candidates get elected, and on the ability of individual citizens to volunteer their time to campaigns show that the Act is not closely drawn to meet its objectives. In particular, five factors together lead us to this decision.
First, the record suggests, though it does not conclusively prove, that Act 64‘s contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns. For one thing, the petitioners’ expert, Clark Bensen, conducted a race-by-race analysis of the 1998 legislative elections (the last to take place before Act 64 took effect) and concluded that Act 64‘s contribution limits would have reduced the funds available in 1998 to Republican challengers in competitive races in amounts ranging from 18% to 53% of their total campaign income. See 3 Tr. 52-57 (estimating loss of 47% of funds for candidate Tully, 50% for Harvey, 53% for Welch, 19% for Bahre, 29% for Delaney, 36% for LaRocque, 18% for Smith, and 31% for Brown).
More specifically, Bensen pointed out that in 1998, the Republican Party made contributions to 19 Senate campaigns in amounts that averaged $2,001, which on average represented 16% of the recipient campaign‘s total income. 3 Tr. 84. Act 64 would reduce these contributions to $300 per campaign, an average reduction of about 85%. Ibid. The party contributed to 50 House campaigns in amounts averaging $787, which on average represented 28% of the recipient campaign‘s total income. Id., at 85. Act 64 would reduce these contributions to $200 per campaign, an average reduction of 74.5%. Ibid. And the party contributed $40,600 to its gubernatorial candidate, an amount that accounted for about 16% of the candidate‘s funding. Id., at 86. The Act would have reduced that contribution by 99%, to $400.
Bensen added that 57% of all 1998 Senate campaigns and 30% of all House campaigns exceeded Act 64‘s expenditure limits, which were enacted along with the statute‘s contribution limits. 7 Trial Exhs. in No. 00-9159(L) etc. (CA2), Exh.
The respondents did not contest these figures. Rather, they presented evidence that focused, not upon strongly contested campaigns, but upon the funding amounts available for the average campaign. The respondents’ expert, Anthony Gierzynski, concluded, for example, that Act 64 would have a “minimal effect on . . . candidates’ ability to raise funds.” App. 46. But he rested this conclusion upon his finding that “only a small proportion of” all contributions to all campaigns for state office “made during the last three elections would have been affected by the new limits.” Id., at 47; see also id., at 51 (discussing “average amount of revenues lost to the limits” in legislative races (emphasis added)); id., at 52-53 (discussing total number of campaigns receiving contributions over Act 64‘s limit). The lower courts similarly relied almost exclusively on averages in assessing Act 64‘s effect. See 118 F. Supp. 2d, at 470 (“Approximately 88% to 96% of the campaign contributions to recent House races were under $200” (emphasis added)); id., at 478 (“Expert testimony revealed that over the last three election cycles the percentage of all candidates’ contributions received over the contribution limits was less than 10%” (emphasis added)).
The respondents’ evidence leaves the petitioners’ evidence unrebutted in certain key respects. That is because the critical question concerns not simply the average effect of contribution limits on fundraising but, more importantly, the ability of a candidate running against an incumbent officeholder to mount an effective challenge. And information about average races, rather than competitive races, is only distantly related to that question, because competitive races are likely to be far more expensive than the average race. See, e. g., N. Ornstein, T. Mann, & M. Malbin, Vital Statistics on Congress 2001-2002, pp. 89-98 (2002) (data showing that spending in competitive elections, i. e., where incumbent
Rather, the petitioners’ studies, taken together with low average Vermont campaign expenditures and the typically higher costs that a challenger must bear to overcome the name-recognition advantage enjoyed by an incumbent, raise a reasonable inference that the contribution limits are so low that they may pose a significant obstacle to candidates in competitive elections. Cf. Ornstein, supra, at 87-96 (In the 2000 U. S. House and Senate elections, successful challengers spent far more than the average candidate). Information about average races does not rebut that inference. Consequently, the inference amounts to one factor (among others) that here counts against the constitutional validity of the contribution limits.
Second, Act 64‘s insistence that political parties abide by exactly the same low contribution limits that apply to other contributors threatens harm to a particularly important political right, the right to associate in a political party. See, e. g., California Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (describing constitutional importance of associating in political parties to elect candidates); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997) (same); Colorado I, 518 U. S., at 616 (same); Norman v. Reed, 502 U. S. 279, 288 (1992) (same). Cf. Buckley, supra, at 20-22 (contribution limits constitute “only a marginal restriction” on First Amendment rights because contributor remains free to asso-
The Act applies its $200 to $400 limits—precisely the same limits it applies to an individual—to virtually all affiliates of a political party taken together as if they were a single contributor.
In addition to the negative effect on “amassing funds” that we have described, see supra, at 253-256, the Act would severely limit the ability of a party to assist its candidates’ campaigns by engaging in coordinated spending on advertising, candidate events, voter lists, mass mailings, even yard signs. And, to an unusual degree, it would discourage those who wish to contribute small amounts of money to a party, amounts that easily comply with individual contribution limits. Suppose that many individuals do not know Vermont legislative candidates personally, but wish to contribute, say, $20 or $40, to the State Republican Party, with the intent that the party use the money to help elect whichever candidates the party believes would best advance its ideals and
We recognize that we have previously upheld limits on contributions from political parties to candidates, in particular the federal limits on coordinated party spending. Colorado II, 533 U. S. 431. And we also recognize that any such limit will negatively affect to some extent the fund-allocating party function just described. But the contribution limits at issue in Colorado II were far less problematic, for they were significantly higher than Act 64‘s limits. See id., at 438-439, and n. 3, 442, n. 7 (at least $67,560 in coordinated spending and $5,000 in direct cash contributions for U. S. Senate candidates, at least $33,780 in coordinated spending and $5,000 in direct cash contributions for U. S. House candidates). And they were much higher than the federal limits on contributions from individuals to candidates, thereby reflecting an effort by Congress to balance (1) the need to allow individuals to participate in the political process by contributing to political parties that help elect candidates with
We consequently agree with the District Court that the Act‘s contribution limits “would reduce the voice of political parties” in Vermont to a “whisper.” 118 F. Supp. 2d, at 487. And we count the special party-related harms that Act 64 threatens as a further factor weighing against the constitutional validity of the contribution limits.
Third, the Act‘s treatment of volunteer services aggravates the problem. Like its federal statutory counterpart, the Act excludes from its definition of “contribution” all “services provided without compensation by individuals volunteering their time on behalf of a candidate.”
These sorts of problems are unlikely to affect the constitutionality of a limit that is reasonably high. Cf. Buckley, 424 U. S., at 36-37 (Coordinated expenditure by a volunteer “provides material financial assistance to a candidate,” and therefore “may properly be viewed as a contribution“). But Act 64‘s contribution limits are so low, and its definition of “contribution” so broad, that the Act may well impede a campaign‘s ability effectively to use volunteers, thereby making it more difficult for individuals to associate in this way. Cf. id., at 22 (Federal contribution limits “leave the contributor free to become a member of any political association and to assist personally in the association‘s efforts on behalf of candidates“). Again, the very low limits at issue help to transform differences in degree into difference in kind. And the likelihood of unjustified interference in the present context is sufficiently great that we must consider the lack of tailoring in the Act‘s definition of “contribution” as an added factor counting against the constitutional validity of the contribution limits before us.
Fifth, we have found nowhere in the record any special justification that might warrant a contribution limit so low or so restrictive as to bring about the serious associational and expressive problems that we have described. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. The record contains no indication that, for example, corruption (or its appearance) in Vermont is significantly more serious a matter than elsewhere. Indeed, other things being equal, one might reasonably believe that a contribution of, say, $250 (or $450) to a candidate‘s campаign was less likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases we have considered. See supra, at 250-253.
These five sets of considerations, taken together, lead us to conclude that Act 64‘s contribution limits are not narrowly tailored. Rather, the Act burdens First Amendment interests by threatening to inhibit effective advocacy by those who seek election, particularly challengers; its contribution limits mute the voice of political parties; they hamper participation in campaigns through volunteer activities; and they are not indexed for inflation. Vermont does not point to a legitimate statutory objective that might justify these spe-
We add that we do not believe it possible to sever some of the Act‘s contribution limit provisions from others that might remain fully operative. See Champlin Refining Co. v. Corporation Comm‘n of Okla., 286 U. S. 210, 234 (1932) (“invalid part may be dropped if what is left is fully operative as a law“); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999) (severability “essentially an inquiry into legislative intent“);
IV
We conclude that Act 64‘s expenditure limits violate the First Amendment as interpreted in Buckley v. Valeo, 424 U. S. 1 (1976). We also conclude that the specific details of Act 64‘s contribution limits require us to hold that those limits violate the First Amendment, for they burden First Amendment interests in a manner that is disproportionate to the public purposes they were enacted to advance. Given our holding, we need not,
It is so ordered.
JUSTICE ALITO, concurring in part and concurring in the judgment.
I concur in the judgment and join in JUSTICE BREYER‘S opinion except for Parts II-B-1 and II-B-2. Contrary to the suggestion of those sections, respondents’ primary defense of Vermont‘s expenditure limits is that those limits are consistent with Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). See Brief for Respondent/Cross-Petitioner William H. Sorrell et al. 15-28 (hereinafter Sorrell Brief); Brief for Respondent/Cross-Petitioner Vermont Public Interest Research Group et al. 5-36 (hereinafter VPIRG Brief). Only as a backup argument, an afterthought almost, do respondents make a naked plea for us to “revisit Buckley.” Sorrell Brief 28; VPIRG Brief 36. This is fairly incongruous, given that respondents’ defense of Vermont‘s contribution limits rests squarely on Buckley and later decisions that built on Buckley, and yet respondents fail to explain why it would be appropriate to reexamine only one part of the holding in Buckley. More to the point, respondents fail to discuss the doctrine of stare decisis or the Court‘s cases elaborating on the circumstances in which it is appropriate to reconsider a prior constitutional decision. Indeed, only once in 99 pages of briefing from respondents do the words “stare decisis” appear, and that reference is in connection with contribution limits. See Sorrell Brief 31. Such an incomplete presentation is reason enough to refuse respondents’ invitation to reexamine Buckley. See United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996).
JUSTICE KENNEDY, concurring in the judgment.
The Court decides the constitutionality of the limitations Vermont places on campaign expenditures and contributions. I agree that both limitations violate the First Amendment.
As the plurality notes, our cases hold that expenditure limitations “place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.” Buckley v. Valeo, 424 U. S. 1, 58-59 (1976) (per curiam); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm‘n, 518 U. S. 604, 618 (1996) (principal opinion); Federal Election Comm‘n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985).
The parties neither ask the Court to overrule Buckley in full nor challenge the level of scrutiny that decision applies to campaign contributions. The exacting scrutiny the plurality applies to expenditure limitations, however, is appropriate. For the reasons explained in the plurality opinion, respondents’ attempts to distinguish the present limitations from those we have invalidated are unavailing. The Court has upheld contribution limits that do “not come even close to passing any serious scrutiny.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 410 (2000) (KENNEDY, J., dissenting). Those concerns aside, Vermont‘s contributions, as the plurality‘s detailed analysis indicates, are even more stifling than the ones that survived Shrink‘s unduly lenient review.
The universe of campaign finance regulation is one this Court has in part created and in part permitted by its course of decisions. That new order may cause more problems than
Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment.
Although I agree with the plurality that
I
I adhere to my view that this Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 410-418 (2000) (Shrink) (dissenting opinion); Federal Election Comm‘n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 465-466 (2001) (Colorado II) (same); Colorado Republican Federal Campaign Comm. v. Federal Election Comm‘n, 518 U. S. 604, 635-644 (1996) (Colorado I) (opinion concurring in judgment and dissenting in part). “[U]nlike the Buckley Court, I believe that contribution limits infringe as directly and as seriously upon freedom of political expression and association as do expenditure limits.” Id., at 640. The Buckley Court distinguished contributions from expenditures based on the presence of an intermediary between a contributor and the speech eventually produced. But that reliance is misguided, given that “[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender‘s message.” Colorado I, supra, at 638-639 (opinion of THOMAS, J.); Shrink, supra, at 413-418 (THOMAS, J., dissenting). Likewise, Buckley‘s suggestion that contribution caps only marginally restrict speech, because “[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support,” 424 U. S.,
II
The plurality opinion, far from making the case for Buckley as a rule of law, itself demonstrates that Buckley‘s limited scrutiny of contribution limits is “insusceptible of principled application,” and accordingly is not entitled to stare decisis effect. See BMW of North America, Inc. v. Gore, 517 U. S. 559, 599 (1996) (SCALIA, J., dissenting). Indeed, “‘when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.‘” Vieth v. Jubelirer, 541 U. S. 267, 306 (2004) (plurality opinion) (quoting Payne v. Tennessee, 501 U. S. 808, 827 (1991); internal quotation marks omitted). Today‘s newly minted, multifactor test, particularly when read in combination with the Court‘s decision in Shrink, supra, places this Court in the position of addressing the propriety of regulations of political speech based upon little more than its impression of the appropriate limits.
The plurality sets forth what appears to be a two-step process for evaluating the validity of contribution limits: First, determine whether there are “danger signs” in a particular case that the limits are too low; and, second, use “independent judicial judgment” to “review the record inde-
As to the first step, it is entirely unclear how to determine whether limits are so low as to constitute “danger signs” that require a court to “examine the record independently and carefully.” Ante, at 253. The plurality points to several aspects of the Act that support its conclusion that such signs are presеnt here: (1) The limits are set per election cycle, rather than divided between primary and general elections; (2) the limits apply to contributions from political parties; (3) the limits are the lowest in the Nation; and (4) the limits are below those we have previously upheld. Ante, at 249-253.
The first two elements of the Act are indeed constitutionally problematic, but they have no bearing on whether the contribution limits are too low. The first substantially advantages candidates in a general election who did not face a serious primary challenge. In practice, this restriction will generally suppress more speech by challengers than by incumbents, without serving the interests the Court has recognized as compelling, i. e., the prevention of corruption or the appearance thereof. Cf. B. Smith, Unfree Speech: The Folly of Campaign Finance Reform 50-51 (2001) (hereinafter Smith) (describing the ability of incumbents to amass money early, discouraging serious challengers from entering a race). The second element has no relation to these compelling interests either, given that “[t]he very aim of a political party is to influence its candidate‘s stance on issues and, if the candidate takes office or is reelected, his votes.” Colorado II, supra, at 476 (THOMAS, J., dissenting) (citing Colorado I, supra, at 646 (THOMAS, J., concurring in judgment and dissenting in part)). That these provisions are unconstitutional, however, does not make the contribution limits on individuals unconstitutionally low.
Nor is the relationship of these limits to those in Buckley and Shrink a critical fact. In Shrink, the Court specifically determined that Buckley did not “set a minimum constitutional thrеshold for contribution limits,” rejecting such a contention as a “fundamental misunderstanding of what we held.” 528 U. S., at 396. The plurality‘s current treatment of the limits in Shrink as a constitutional minimum, or at least as limits below which “danger signs” are present, thus cannot be reconciled with Shrink itself.
Having nevertheless concluded that these “danger signs” require us to scrutinize the record, the plurality embarks on an odd review of the contribution limits, combining unrelated factors to determine that, “[t]aken together,” ante, at 253, the restrictions of Act 64 are not closely drawn to meet their objectives. Two of these factors simply cause the already stringent limitations on individual contributions to be more stringent; i. e., volunteer services count toward the contribution limit, ante, at 259-260, and the limits do not change with inflation, so they will become even more stringent in time, ante, at 261.2 While these characteristics confirm the plu-
rality‘s impression that these limits are, indeed, quite low, they have nothing whatsoever to do with whether the restrictions are closely drawn to meet their objectives. The plurality would presumably uphold a limit on contributions of $1 million, even if volunteer services counted toward that limit and the limit did not change with inflation. Characterizing these facts as shifting Act 64‘s limits from “suspiciously low” to “too low,” ibid., provides no insight on how to draw this constitutional line. The plurality next departs from the general applicability of the contribution limits entirely, and notes the substantial interference of the contribution limits with the activities of parties. Again, I do not dispute that the limitation on party contributions is unconstitutional; as I have previously noted, such limitations are unconstitutional even under Buckley. See Colorado II, 533 U. S., at 476-477 (dissenting opinion). But it is entirely unclear why the mere fact that the “suspiciously low” contribution limits also apply to parties should mean that those limits are in fact “too low” when they are applied to individuals. If the limits impermissibly intrude upon the associational rights of parties, then the limits are unconstitutional as applied to parties. But limits on individuals cannot be transformed from permissible to too low simply because they also apply to political parties.2lenges.” Ante, at 261. It is impossible to square this wariness of incumbents’ disinclination to enact future laws protecting challengers with the plurality‘s deference to those same incumbents when they make empirical judgments regarding “the precise restriction necessary to carry out the statute‘s legitimate objectives” in the first place. Ante, at 248.
The plurality‘s final justification fares no better. Arguing that Vermont offers no justification for imposing a limit lower than that imposed in any other State is simply another way of saying that the benchmark for whether a contribution limitation is constitutional is what other States have imposed. As I have noted above, supra, at 269, tying individuals’ First Amendment rights to the presence or absence of similar laws in other States is inconsistent with the First Amendment.
The plurality recognizes that the burdens which lead it to invalidate Act 64‘s contribution limits are present under “many, though not all, campaign finance regulations.” Ante, at 262. As a result, the plurality does not purport to offer any single touchstone for evaluating the constitutionality of such laws. Indeed, its discussion offers nothing resembling a rule at all. From all appearances, the plurality simply looked at these limits and said, in its “independent judicial judgment,” ante, at 249, that they are too low. The atmospherics—whether they vary with inflation, whether they are as high as those in other States or those in Shrink and Buckley, whether they apply to volunteer activities and parties—no doubt help contribute to the plurality‘s sentiment. But a feeling does not amount to a workable rule of law.
This is not to say that the plurality errs in concluding that these limits are too low to satisfy even Buckley‘s lenient standard. Indeed, it is almost impossible to imagine that any legislator would ever find his scruples overcome by a $201 donation. See Shrink, supra, at 425 (THOMAS, J., dis-
But the plurality‘s determination that this statute clearly lies on the impermissible side of the constitutional line gives no assistance in drawing this line, and it is clear that no such line can be drawn rationally. There is simply no way to calculate just how much money a person would need to receive before he would be corrupt or perceived to be corrupt (and such a calculation would undoubtedly vary by person). Likewise, there is no meaningful way of discerning just how many resources must be lost before speech is “disproportionately burden[ed].” Ante, at 262. Buckley, as the plurality has applied it, gives us license to simply strike down any limits that just seem to be too stringent, and to uphold the rest. The First Amendment does not grant us this authority. Buckley provides no consistent protection to the core of the First Amendment, and must be overruled.
* * *
For these reasons, I concur only in the judgment.
JUSTICE STEVENS, dissenting.
JUSTICE BREYER and JUSTICE SOUTER debate whether the per curiam decision in Buckley v. Valeo, 424 U. S. 1 (1976), forecloses any constitutional limitations on candidate expenditures. This is plainly an issue on which reasonable minds can disagree. The Buckley Court never explicitly ad-
I have not reached this conclusion lightly. As JUSTICE BREYER correctly observes, stare decisis is a principle of “‘fundamental importance.‘” Ante, at 243. But it is not an inexorable command, and several factors, taken together, provide special justification for revisiting the constitutionality of statutory limits on candidate expenditures.
To begin with, Buckley‘s holding on expenditure limits itself upset a long-established practice. For the preceding 65 years, congressional races had been subject to statutory limits on both expenditures and contributions. See
Accordingly, while we have explicitly recognized the importance of stare decisis in the context of Buckley‘s holding on contribution limits, McConnell, 540 U. S., at 137-138, we have never before done so with regard to its rejection of expenditure limits. And McConnell‘s recognition rested largely on an interest specific to Buckley‘s holding on contribution limits. There, we stated that “[c]onsiderations of stare decisis, buttressed by the respect that the Legislative and Judicial Branches owe to one another, provide additional powerful reasons for adhering to the analysis of contribution limits that the Court has consistently followed since Buckley was decided.” 540 U. S., at 137-138 (emphasis added). This powerful buttress is absent from Buckley‘s re-
Perhaps in partial recognition of these points, Justice White refused to abandon his opposition to Buckley‘s holding on expenditure limits. See Federal Election Comm‘n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 271 (1986); Federal Election Comm‘n v. National Conservative Political Action Comm., 470 U. S. 480, 507-512 (1985) (dissenting opinion). He believed Buckley deeply wrong on this issue because it confused “the identification of speech with its antecedents.” National Conservative Political Action Comm., 470 U. S., at 508. Over the course of his steadfast campaign, he converted at least one other Buckley participant to this position, see National Conservative Political Action Comm., 470 U. S., at 518-521 (Marshall, J., dissenting), and his reasoning has since persuaded me—the nonparticipating Member of the Buckley Court—as well.
As Justice White recognized, it is quite wrong to equate money and speech. Buckley, 424 U. S., at 263 (opinion concurring in part and dissenting in part). To the contrary:
“The burden on actual speech imposed by limitations on the spending of money is minimal and indirect. All rights of direct political expression and advocacy are retained. Even under the campaign laws as originally enacted, everyone was free to spend as much as they chose to amplify their views on general political issues, just not specific candidates. The restrictions, to the ex-
tent they do affect speech, are viewpoint-neutral and indicate no hostility to the speech itself or its effects.” National Conservative Political Action Comm., 470 U. S., at 508-509 (White, J., dissenting).
Accordingly, these limits on expenditures are far more akin to time, place, and manner restrictions than to restrictions on the content of speech. Like Justice White, I would uphold them “so long as the purposes they serve are legitimate and sufficiently substantial.” Buckley, 424 U. S., at 264.
Buckley‘s conclusion to the contrary relied on the following oft-quoted metaphor:
“Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.” Id., at 19, n. 18.
But, of course, while a car cannot run without fuel, a candidate can speak without spending money. And while a car can only travel so many miles per gallon, there is no limit on the number of speeches or interviews a candidate may give on a limited budget. Moreover, provided that this budget is above a certain threshold, a candidate can exercise due care to ensure that her message reaches all voters. Just as a driver need not use a Hummer to reach her destination, so a candidate need not flood the airways with ceaseless soundbites of trivial information in order to provide voters with reasons to support her.
Indeed, the examples of effective speech in the political arena that did not depend on any significant expenditure by the campaigner are legion. It was the content of William Jennings Bryan‘s comments on the “Cross of Gold“—and William McKinley‘s responses delivered from his front porch in Canton, Ohio—rather than any expenditure of money that appealed to their cost-free audiences. Neither Abraham Lincoln nor John F. Kennedy paid for the opportunity to engage in the debates with Stephen Douglas and Richard
These campaigners also identified significant government interests favoring the imposition of expenditure limits. Not only do these limits serve as an important complement to corruption-reducing contribution limits, see id., at 264 (opinion of White, J.), but they also “protect equal access to the political arena, [and] free candidates and their staffs from the interminable burden of fundraising.” Colorado Republican Federal Campaign Comm. v. Federal Election Comm‘n, 518 U. S. 604, 649-650 (1996) (STEVENS, J., dissenting). These last two interests are particularly acute. When campaign costs are so high that only the rich have the reach to throw their hats into the ring, we fail “to protect the political process from undue influence of large aggregations of capital and to promote individual responsibility for democratic government.” Automobile Workers, 352 U. S., at 590. States have recognized this problem,2 but Buckley‘s perceived ban on expenditure limits severely limits their options in dealing with it.
The interest in freeing candidates from the fundraising straitjacket is even more compelling. Without expenditure limits, fundraising devours the time and attention of political leaders, leaving them too busy to handle their public responsibilities effectively. That fact was well recognized by backers of the legislation reviewed in Buckley, by the Court of Appeals judges who voted to uphold the expenditure limitations in that statute, and by Justice White—who not inciden-
Additionally, there is no convincing evidence that these important interests favoring expenditure limits are fronts for incumbency protection. Buckley‘s cursory suggestion to the contrary, id., at 56-57, failed to take into account the mixed evidence before it on this issue. See 519 F. 2d, at 861, 862 (detailing how “[t]he material available to the court looks both ways“). And only by “permit[ting] States nationwide to experiment with these critically-needed reforms“—as 18 States urge us to do—will we enable further research on how expenditure limits relate to our incumbent reelection rates. See Brief for State of Connecticut et al. as Amici Curiae 3.4 In the meantime, a legislative judgment that “enough is
enough” should command the greatest possible deference from judges interpreting a constitutional provision that, at best, has an indirect relationship to activity that affects the quantity—rather than the quality or the content—of repetitive speech in the marketplace of ideas.
One final point bears mention. Neither the opinions in Buckley nor those that form today‘s cacophony pay heed to how the Framers would have viewed candidate expenditure limits. This is not an unprincipled approach, as the historical context is “usually relevant but not necessarily dispositive.” Georgia v. Randolph, 547 U. S. 103, 123 (2006) (STEVENS, J., concurring). This is particularly true of contexts that are so different. At the time of the framing the accepted posture оf the leading candidates was one of modesty, acknowledging a willingness to serve rather than a desire to compete. Speculation about how the Framers would have legislated if they had foreseen the era of televised soundbites thus cannot provide us with definitive answers.
Nevertheless, I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities. I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress’ authority.5 And they surely would
not have expected judges to interfere with the enforcement of expenditure limits that merely require candidates to budget their activities without imposing any restrictions whatsoever on what they may say in their speeches, debates, and interviews.
For the foregoing reasons, I agree with JUSTICE SOUTER that it would be entirely appropriate to allow further proceedings on expenditure limits to go forward in these cases. For the reasons given in Parts II and III of his dissent, I also agree that Vermont‘s contribution limits and presumption of coordinated expenditures by political parties are constitutional, and so join those portions of his opinion.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, and with whom JUSTICE STEVENS joins as to Parts II and III, dissenting.
In 1997, the Legislature of Vermont passed Act 64 after a series of public hearings persuaded legislators that rehabilitating the State‘s political process required campaign finance reform. A majority of the Court today decides that the expenditure and contribution limits enacted are irreconcilable with the Constitution‘s guarantee of free speech. I would adhere to the Court of Appeals‘s decision to remand for further enquiry bearing on the limitations on candidates’ expenditures, and I think the contribution limits satisfy controlling precedent. I respectfully dissent.
I
Rejecting Act 64‘s expenditure limits as directly contravening Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), ante, at 242-246 (plurality opiniоn of BREYER, J.), is at least premature.
We said in Buckley that “expenditure limitations impose far greater restraints on the freedom of speech and association than do . . . contribution limitations,” 424 U. S., at 44, but the Buckley Court did not categorically foreclose the possibility that some spending limit might comport with the
Vermont‘s argument therefore does not ask us to overrule Buckley; it asks us to apply Buckley‘s framework to deter-
The legislature‘s findings are surely significant enough to justify the Court of Appeals‘s remand to the District Court to decide whether Vermont‘s spending limits are the least restrictive means of accomplishing what the court unexceptionably found to be worthy objectives. See id., at 124-125, 135-137. The District Court was instructed to examine a variety of outstanding issues, including alternatives considered by Vermont‘s Legislature and the reasons for rejecting them. See id., at 136. Thus, the constitutionality of the expenditure limits was not conclusively decided by the Second Circuit, and I believe the evidentiary work that remained to be done would have raised the prospect for a sound answer to that question, whatever the answer might have been. In
II
Although I would defer judgment on the merits of the expenditure limitations, I believe the Court of Appeals correctly rejected the challenge to the contribution limits. Low though they are, one cannot say that “the contribution limitation[s are] so radical in effect as to render political association inеffective, drive the sound of a candidate‘s voice below the level of notice, and render contributions pointless.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 397 (2000).
The limits set by Vermont are not remarkable departures either from those previously upheld by this Court or from those lately adopted by other States. The plurality concedes that on a per-citizen measurement Vermont‘s limit for statewide elections “is slightly more generous,” ante, at 251, than the one set by the Missouri statute approved by this Court in Shrink, supra. Not only do those dollar amounts get more generous the smaller the district, they are consistent with limits set by the legislatures of many other States, all of them with populations larger than Vermont‘s, some significantly so. See, e. g., Montana Right to Life Assn. v. Eddleman, 343 F. 3d 1085, 1088 (CA9 2003) (approving $400 limit for candidates filed jointly for Governor and Lieutenant Governor, since increased to $500, see
To place Vermont‘s contribution limits beyond the constitutional pale, therefore, is to forget not only the facts of Shrink, but also our self-admonition against second-guessing legislative judgments about the risk of corruption to which contribution limits have to be fitted. See Shrink, supra, at 391, and n. 5. And deference here would surely not be overly complaisant. Vermont‘s legislаtors themselves testified at length about the money that gets their special attention, see Legislative Findings, App. 20 (finding that “[s]ome 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“); 382 F. 3d, at 122 (testimony of Elizabeth Ready: “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 than I would [a non-donor‘s]. . . . [W]hen you only have a few minutes to talk, there are certain people that get access” (alterations in original)). The record revealed the
Still, our cases do not say deference should be absolute. We can all imagine dollar limits that would be laughable, and per capita comparisons that would be meaningless because aggregated donations simply could not sustain effective campaigns. The plurality thinks that point has been reached in
III
Four issues of detail call for some attention, the first being the requirement that a volunteer‘s expenses count against the person‘s contribution limit. The plurality certainly makes out the case that accounting for these expenses will be a colossal nuisance, but there is no case here that the nuisance will noticeably limit volunteering, or that volunteers whose expenses reach the limit cannot continue with their efforts subject to charging their candidates for the excess. Granted, if the provisions for contribution limits were teetering on the edge of unconstitutionality, Act 64‘s treatment of volunteers’ expenses might be the finger-flick that gives the fatal push, but it has no greater significance than that.
Second, the failure of the Vermont law to index its limits for inflation is even less important. This challenge is to the law as it is, not to a law that may have a different impact after future inflation if the state legislature fails to bring it up to economic date.
Third, subjecting political parties to the same contribution limits as individuals does not condemn the Vermont scheme. What we said in Federal Election Comm‘n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 454-455 (2001), dealing with regulation of coordinated expenditures, goes here, too. The capacity and desire of parties to make large contributions to competitive candidates with uphill
Finally, there is the issue of Act 64‘s presumption of coordinated expenditures on the part of political parties,
IV
Because I would not pass upon the constitutionality of Vermont‘s expenditure limits prior to further enquiry into their fit with the problem of fundraising demands on candidates, and because I do not see the contribution limits as depressed to the level of political inaudibility, I respectfully dissent.