Ask Americans how we should improve political campaigns and the most common answer youll get is that candidates should spend an equal amount of money. For the first time since it struck down mandatory spending limits for federal campaigns in 1976, the Supreme Court now has a chance to consider spending limits for state level campaigns.
In the 2004 elections, the congressional candidate who spent the most won 95% of the time. All too often, this means that the candidate who is best liked by large donors and special interests can outraise and defeat a candidate whose views may be closer to the voters but who is unable to respond to an avalanche of attack ads.
Setting a mandatory spending limit for all candidates would create a fairer process and help elect officials who arent beholden to the private interests that helped buy their way into office. Just as we limit the amount of time that any person can speak at a city council meeting or public hearing, setting limits actually can improve the public debate by ensuring that differing viewpoints can all be heard.
More than thirty states had spending limits as part of their campaign finance laws prior to 1974, when Congress enacted them at the federal level. While a lot less money was spent on campaigns then, voter turnout and civic involvement was generally higher than it is today.
After the federal limits were passed as part of a comprehensive reform bill, the Supreme Court reviewed the law on a rushed basis, with little time to examine evidence about the impact of spending limits. In the infamous case Buckley v Valeo, the Court assumed that limiting candidate spending would reduce the public debate and that spending limits would not create a less corrupt electoral process. With twenty-twenty hindsight, it is clear that the Court was simply wrong in these conjectures.
Even though the Buckley ruling was for federal races, most states and localities repealed their spending limits in its wake, rather than face a mountain of litigation to defend them in court.
At the urging of non-partisan civic organizations like the Vermont Public Interest Research Group (VPIRG), the Vermont legislature bucked this trend of compliance in 1997. Vermont passed a law that included mandatory limits on campaign spending, a direct challenge to Buckley.
In reviewing the Vermont law, a federal appeals court has ruled that Buckley does not preclude all limits on campaign spending. A Vermont right to life group appealed this case to the U.S. Supreme Court on May 12.
Constitutional experts believe the Court is likely to take this case because it conflicts with other lower court rulings. By allowing the states to experiment with various campaign finance laws, including mandatory spending limits, the Supreme Court could gather evidence from these traditional laboratories of democracy before revisiting the issue of whether spending limits are constitutional for federal races.
Courts should generally tread lightly when it comes to replacing their own judgment for the judgment of the peoples elected representatives. This is particularly true at the state and local level, where federal judges should be reluctant to overrule laws unless they are clearly in violation of the U.S. Constitution. At least six current Supreme Court judges are on record disagreeing with all or part of the Buckley ruling. If our highest judges our in such strong disagreement about what our constitution says says, then prudence dictates that they should be deferential to the states.
State leaders such as Secretaries of State and Attorneys General should take this opportunity to weigh in with the Supreme Court and urge them to give states greater leeway to enact campaign finance laws. With a similar case last October, 15 state elected officials and 8 US Senators signed onto legal briefs in support of mandatory spending limits. Many of these officials were busy at the time either administering elections or running for election themselves. Hopefully, even more will join the call for spending limits now that more time is available.
Derek Cressman directs TheRestofUs.org, a non-partisan watchdog group that is filing an amicus brief asking the Supreme Court to consider the Vermont spending limits.