The U.S. Court of Appeals for the Second Circuit has gone where few lawyers would dare—singlehandedly rejiggering established First Amendment analysis to uphold campaign expenditure limits. When a federal court of appeals concludes that a law so evidently at odds with constitutional jurisprudence deserves a pass, the decision deserves a closer look.

In Landell v. Sorrell, Judge Straub, jointed by Judge Pooler, considered the appeal of a trial court’s decision that, among other things, threw out Vermont’s mandatory expenditure limits in political campaigns. Since the Buckley v. Valeo decision in 1976, the law has required that expenditure restrictions, as a regulation of core political speech, be subjected to exacting scrutiny. While the terminology may vary from decision to decision, courts applying this level of scrutiny examine the governmental purpose (it must be "compelling"); the means used to achieve that purpose (they must be "the least restrictive") and the breadth of the law (it must be "narrowly tailored.")

Bar review students can recite this test in their sleep. Unfortunately, the Second Circuit became so distracted by horror stories generated during trial that they forgot to apply the law.

The Second Circuit decision attempted to distinguish its conclusion from the trial court’s, by describing the lower court as having announced a "per se" unconstitutional test with regard to spending limits. When one reads that lower decision, however, it is strikingly similar to that of the Second Circuit. Both recite a litany of concurrences, dissents, and dicta to demonstrate that expenditure limits might, somehow, someday, be a permissible method of regulation. But the trial court acknowledged that there are no cases so holding, and declines to make new law. The appellate court chose otherwise.

The Second Circuit first examined the government’s interest, concluding that Vermont had shown that limiting the funds campaigns can spend would insulate the state’s political system "from the corrupting influence of excessive and unbridled fundraising." The present system of unlimited expenditures, the court found would "continue to impair the accessibility [that] is essential to any democratic political system." The court stated that fundraising activities required officeholders to "sell their time in order to raise campaign funds." This conclusion, observed the court, was supported by findings of the Vermont General Assembly. Therefore, the court found that Vermont had demonstrated a compelling interest in reforming this situation.

The Second Circuit then skipped a step in the legal analysis as it determined that expenditure limits in Vermont campaigns were constitutional. The court should next consider the means chosen by the state. Is an expenditure limit an effective method to address this problem? Moreover, is it the LEAST restrictive means? Here, neither the trial court nor the Second Circuit did their job. Both move immediately to the question of whether the limits that were chosen were "narrowly tailored." The Second Circuit concluded that the limits, which allegedly resemble expenditures spent historically in races, were adequately tailored.

Even assuming that the contentions asserted in these cases represent reality, expenditure limits are not a straightforward or effective method for preventing the ills identified by Vermont. Officials can still provide access to donors over other constituents if so inclined. The Second Circuit opined that "Vermont’s expenditure limits, by removing the financial pressures and spiraling campaign costs that have conspired to privilege monied special interests, can uniquely ensure that government accessibility is not a commodity for sale." But that conclusion is neither logical, nor supported by the facts presented to the trial court. What is true is that challengers are prevented from raising the money they otherwise could to run against incumbents, but for no good reason, since challengers don’t have "access" to "sell." Furthermore, Vermont’s extremely low per donor contribution limits of $200-$400 per cycle require candidates, especially challengers, to dedicate more time and energy to fundraising.

If Vermont wanted to reform campaigns so donors could not become favored supplicants before elected officials, it could apply more straightforward methods. The Vermont legislature could simply prevent officials from discussing legislation with donors. If Vermont believed that this alternative would prove ineffective, then it could prevent officials from acting on matters before them if donors would be affected. Such in-house ethics regulations allow officials to address unseemly conduct among their peers without infringing on the liberties of bystanders. A more invasive alternative (that might present its own constitutional issues) would be the enactment of an anti-pay-to-play regime, which would prevent donors and their agents from lobbying officials to whom they had made donations. "Pay-to-play" regulations may work best in situations where donors are doing business with the state and otherwise funding officeholders with the power to give them additional state contracts. Even so, a broader pay-to-play ban could address the specific evil identified by Vermont, without restricting the rights of innocent third-parties and challengers.

The court failed to consider whether expenditure limits were the least restrictive means to address the state’s interest. If it had, it would have been hard-pressed to find that expenditure limits pass constitutional scrutiny. Logic and experience demonstrate that expenditure limits will not fix the "access" problem identified by the state of Vermont. At least the lawmakers who enacted mandatory expenditure limits in Vermont have some excuse—they run for office in Vermont. Expenditure limits will make it harder to defeat incumbent officeholders, and that is perhaps the point.

NOTE: The Second Circuit Court of appeals issued an order October 3 withdrawing its decision in Landell v. Sorrell. The decision is currently under review.

Allison R. Hayward is an attorney practicing in California and Washington, DC. She is an Adjunct Fellow of the Ashbrook Center for Public Affairs.