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Randall v. Sorrell


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548 U.S. 230 (2006), argued 28 Feb. 2006, decided 26 June 2006 by vote of 6 to 3; Breyer delivered a plurality opinion joined by Roberts and, in most part, Alito, who also filed an opinion concurring in part and concurring in the judgment; Kennedy concurring in the judgment also filed an opinion; Thomas, joined by Scalia, concurring in the judgment as well; Stevens in dissent; Souter, joined by Ginsburg and, in two parts, Stevens, in dissent.

In 1997, Vermont enacted the most severe limitations on campaign contributions in the nation, while also establishing expenditure limitations. The legislation was challenged by former office seekers, campaign contributors, and political parties. Not surprisingly, the case produced another fractured decision by the Supreme Court, characterized by Justice John Paul Stevens, in dissent, as “today's cacophony.” The Court's attempts over three decades to reconcile severe restrictions on the influence of money in political campaigns in order to “prevent corruption and the appearance of corruption” has presented the Court with increasingly intrusive congressional and state regulations on the First Amendment freedoms of speech and association.

In Buckley v. Valeo (1976), the Court permitted restrictions on contributions, maintaining that they presented only “minimal” limitations on a contributor's ability to speak. Expenditure limitations on campaigns were rejected, however, with the Court insisting that they represent a more onerous burden by limiting the total amount of political speech. In Justice Stephen G. Breyer's plurality opinion in Randall, no part of which commanded the assent of more than Justices John G. Roberts and Samuel A. Alito, expenditure limits on campaigns ranging from $300,000 over a two-year election cycle for governor to $2,000 for state representative were rejected on the grounds laid out in Buckley.

Contribution limits proved a thornier issue for the plurality, since heretofore the Court had never overturned such limitations, with Buckley itself upholding a $1,000 limitation. Conceding that deference is usually owed to legislatures in making these decisions, Breyer nevertheless introduced a new, ad hoc test containing two parts to determine whether Vermont's limits on contributions from individuals, PACs, and political parties—ranging from $400 for governor to $200 for state representative—were too meager to satisfy the First Amendment. In assessing the proportionality of the restrictions (“tailoring”), Breyer looked for “danger signs” indicating unusual severity. He noted that the Vermont limits on individual contributions represented, in inflation-adjusted terms, only one-twentieth of the limits on individuals upheld in Buckley, and a mere one-hundredth of the limit on political parties. Overall, the Vermont limits were the lowest in the country.

A five-factor test led the plurality to conclude that the restrictions were not narrowly tailored to meet the state's interest, thus violating the First Amendment. The Court found that: (1) the restrictions in the law could impair effective advocacy by challengers; (2) political parties were severely restricted, posing associational freedom concerns; (3) volunteering was unduly burdened; (4) contributions were not indexed for inflation; and (5) Vermont could not justify these disproportionate burdens by any public purpose they were supposed to serve.The infatuation with Buckley as unassailable precedent was shared only by Justices Breyer and Roberts. Justice Alito wished to leave the matter for another day; Justice Anthony Kennedy expressed exasperation with the Court's campaign finance reform jurisprudence; Justice Clarence Thomas, joined by Justice Antonin Scalia, explicitly stated that he would overrule Buckley as insufficiently protective of core First Amendment political speech, as incapable of coherent application, and as embodying an untenable distinction between contribution and expenditure limits. The three dissenters were disenchanted with Buckley, too, but for different reasons: Justice Stevens would have overruled Buckley and held expenditure limits to be constitutional, while Justices Souter and Ginsburg were inclined to have the lower courts reinterpret Buckley and find the Vermont expenditure limits acceptable.

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