The Thompson v. Hebdon per curium opinion is the latest example of the Roberts Supreme Court’s hostility to reasonable money in politics reforms like contribution limits, and its insistence on ignoring empirical data about campaign finance. In Thompson v. Hebdon, the Court remanded the case so that the Ninth Circuit could “revisit whether Alaska’s contribution limits are consistent with [the Court’s] First Amendment precedents.”
The decision in Thompson v. Hebdon is the culmination of a decades-long fight between legislatures and the Supreme Court over campaign finance reform, and so, some explanation of that history is warranted. As I explained in a Harvard Law & Policy Review piece, the Roberts Court has been deregulating corruption ever since its first term, when it decided Randall v. Sorrell. That case reviewed Vermont’s campaign finance law, which had been designed to set up a test case to re-litigate Buckley v. Valeo. Buckley is a 1976 Supreme Court decision on the constitutionality of a post-Watergate reform called the Federal Election Campaign Act ‘74 (FECA 74), which contained both contribution limits and expenditure limits. The Supreme Court in Buckley decided that contribution limits were constitutional, but that expenditure limits were unconstitutional.
The Vermont law challenged in Randall was structured like FECA 74, in that it contained both contribution limits and expenditure limits. Advocates of the law intended to defend it all the way to the Supreme Court and convince the Justices that the Court had been wrong in Buckley, that the intervening years had provided ample proof that expenditure limits were necessary to ensure the integrity of elections, and that expenditure limits were constitutional.
But as Randall was approaching the Supreme Court’s door, a drastic change in personnel happened. Justice Sandra Day O’Connor retired to attend to her dying husband and Chief Justice William Rehnquist died. Replacing them were Justice Samuel Alito and Chief Justice John Roberts. Both O’Connor and Rehnquist had been persuadable on the issue of campaign finance reform, and had typically upheld campaign finance laws. But Alito and Roberts are ideologically opposed to campaign finance reforms and have consistently voted against them, with a one-time exception for Chief Justice Roberts, who voted to uphold a solicitation ban on elected Florida judges personally raising money in Williams-Yulee.
Thus, when Randall v. Sorrell was decided in 2006, not only did the Roberts Supreme Court not overturn Buckley, as reform advocates had hoped, but it doubled down on the Buckley ruling, holding that Vermont’s contribution limits were unconstitutionally low. Ever since Randall, campaign finance advocates have worried that whichever contribution limits in the fifty states were lowest stood at risk of being challenged under Randall’s logic. It took until 2019, but it seems that in Thompson v. Hebdon that worry has proven to be warranted.
In Thompson v. Hebdon, the Supreme Court was presented with a challenge to Alaska’s $500 individual-to-candidate contribution limit. According to the Conference of State Legislatures, Alaska’s contribution limits were the lowest as applied to governors’ races. The Ninth Circuit had upheld Alaska’s contribution limits. The Supreme Court remanded the Thompson v. Hebdon case to the Ninth Circuit with instructions to apply the Randall standard. This likely portends the Ninth Circuit reversing itself, or, if it sticks to its guns, then Thompson v. Hebdon may make a round trip to the Court where the Roberts Court would likely reprise the wrongly decided Randall and strike Alaska’s contribution limits, possibly taking with it all states’ contribution limits.
Though Thompson was several years in the making, it is built on the Court’s poorly constructed foundation in Randall, and it confirms the Court’s refusal to rely on empirical data in this area of the law. The decision in Randall was based in part on the Supreme Court’s assumption that lower contribution limits would hamper electoral competition and especially hurt challengers. But the Supreme Court made this assumption without the benefit of data that tested this empirical point. Post-Randall, I help co-author a study that looked at precisely this issue. The study examined elections in forty-two states over twenty-six years for lower house legislative races. The study showed that lower contribution limits actually boost electoral competition and assist challengers—likely because incumbents were unable to amass as big war chests to either scare off or out-maneuver would-be challengers. Analysis by the National Institute on Money in Politics in 2018 looking at data from Vermont from 2000 to 2016 confirmed that higher contribution limits hurt electoral competitiveness—the opposite of what the Supreme Court assumed in Randall. But in the area of campaign finance, facts have been relegated to an unexamined dusty shelf. And so Thompson v. Hebdon will likely have a knock-on ripple effect around the nation. And, having received the signal from the Court, those hostile to campaign finance laws may begin a new wave of challenges to the nation’s lowest contribution limits. The irony will be that plaintiffs will argue they are challenging these laws in the name of competitive elections, while the data show that scraping limits harms political challengers and helps incumbents.