Supreme Court to Vote on Election-Law Cases

The Supreme Court will take up states’ rights -- of both the blue- and red-state variety -- in a pair of election-law cases to be heard this week that could have a big impact on the future of American politics.

Tiny Vermont, a true blue state, hopes to restore small-town democracy by greatly limiting the role of money in politics. If its new spending caps win before the high court, they could change how campaigns are conducted across the nation.

Meanwhile, Texas, the biggest of the red states, is defending its right to redraw its electoral districts to give its GOP majority more seats in Congress. If its extraordinary mid-decade shift wins in the high court, other states have signaled they will do the same.

The pair of cases will also give strong clues about the court’s newest members: Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr.

In the Vermont case, Republicans say that the free-speech principle in the 1st Amendment is fundamental to American politics, and that any government-enforced limit on campaign spending is unconstitutional.

Three years ago, the high court narrowly upheld the McCain-Feingold Act, which barred big contributions to political parties. Then-Associate Justice Sandra Day O’Connor cast a deciding fifth vote to reject the legal challenge led by Republican Sen. Mitch McConnell of Kentucky.

Associate Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy voted to strike down these contribution limits on 1st Amendment grounds. If Roberts and Alito agree with them, the court could rule that contribution limits, as well as spending limits, are unconstitutional.

But the Vermont case is driven by liberal reformers who hope the high court will reconsider its 30-year-old ruling in Buckley vs. Valeo. Then, the justices set a confusing, two-part rule that has been law ever since. First, they said the government could limit contributions to candidates on the theory that it would look corrupt if a politician took a huge sum from a wealthy donor. However, they also said candidates had a free-speech right to spend unlimited sums.

Since then, the nation has seen a relentless rise in campaign spending, as well as the emergence of a new generation of enormously wealthy candidates. Last year, New York Mayor Michael R. Bloomberg spent an estimated $80 million of his fortune to secure his reelection, 10 times more than the campaign of his leading Democratic opponent. In 2001, Bloomberg, a billionaire, spent $75 million to narrowly win the mayor’s office.

Across the Hudson River in New Jersey, voters were treated to a barrage of negative ads paid for by the two wealthy candidates for governor. Democrat Jon Corzine, a former chairman of the investment banking firm Goldman Sachs, spent about $60 million of his own money to win a U.S. Senate seat five years ago. Last year, he spent another $40 million to win the governor’s seat against Republican businessman Douglas R. Forrester, who spent $30 million on his losing campaign.

And the influence of money is not limited to wealthy candidates or high-profile races. Vermonters held public hearings at which lawmakers candidly admitted that campaign contributions played a major role in what legislative proposals won attention.

“Money does buy access, and we’re kidding ourselves and Vermonters if we deny it,” then-Gov. Howard Dean said in his 1997 inaugural address. In response, lawmakers passed the first state spending limits for candidates since the Supreme Court voided federal spending limits in Buckley vs. Valeo.

Vermonters said they wanted to turn back the clock to a time when candidates had to listen first to voters, not just to campaign contributors. Their “faith in the integrity of government [had been] profoundly shaken by the effects of large contributions and unfettered campaign spending,” said state Atty. Gen. William H. Sorrell, who will defend the law in the Supreme Court.

The new law said candidates for the state senate could spend $4,000 to run for office. Running statewide, candidates for governor would be limited to $300,000. And incumbents could spend 90% as much as challengers. In addition, contribution limits were set very low. For example, donors to statewide candidates, such as the governor, could give no more than $400 to a candidate.

Lawyers for the Vermont Republican State Committee and the Republican National Committee sued and blocked much of the law from taking effect. They say it is a free-speech violation that threatens open democracy.

“This case is about the radical vision of [Vermont lawmakers] to transform political campaigns into highly regulated affairs, overseen by a paternalistic state,” said James Bopp Jr., an Indiana lawyer who will urge the Supreme Court to strike down the entire law during oral arguments Tuesday in the case of Vermont Republican State Committee vs. Sorrell.

California’s attorney general, Bill Lockyer, and his counterparts in 16 other states have joined Vermont in arguing for states’ rights. Included are “blue states” such as New York, Connecticut, Illinois, Maryland and Minnesota. They say voters and lawmakers should have the freedom to set campaign limits and to protect “the integrity of the democratic process.”

Despite much revulsion over campaign spending, most election-law experts doubt Vermont’s spending caps will be upheld. “They face an uphill battle because they are bucking a powerful precedent,” said Edward B. Foley, a law professor at Ohio State University.

On Wednesday, the court will hear the Texas case -- a challenge to the controversial redistricting that was engineered by former House Majority Leader Tom DeLay (R-Texas) after Republicans won control of the state Legislature in 2003.

Electoral district boundaries are traditionally redrawn after the national census is conducted every 10 years. The idea is to make sure that population shifts are reflected in state legislatures as well as in Congress. But Texas Republicans acted in mid-decade.

“This case is fundamentally about democracy,” said R. Ted Cruz, the Texas solicitor general, defending the move as a matter of fairness.

Democrats had controlled the state for decades, he said, and drew district lines that allowed Democrats to hold a majority of its seats in Congress, even as most of the state’s voters cast ballots for Republicans. After Republicans took solid control of both houses of the state Legislature in 2003, DeLay spurred lawmakers to redraw the congressional districts so as to knock off six Democratic members of the House.

Eight million Texans were moved to new districts, and the plan worked as the GOP strengthened its narrow majority in Congress.

Shortly afterward, lawmakers in two other red states, Georgia and Colorado, moved to redraw their districts to give Republicans more seats.

Democrats and civil rights activists cried foul. They went to court and argued that a blatantly partisan, mid-decade shift in districts violated the Constitution’s guarantee of “equal protection of the laws.”

The court has been closely split on this question, and Justice Kennedy probably holds the deciding vote.