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Individual Rights Loses a Round to 'Democracy'
[August 8, 2002]

By S. M. Oliva

"Judicial activism" is a term which gets thrown around far too much, and often too erroneously, when criticizing the acts of federal judges. Most judges are, regardless of political persuasion, fairly timid creatures who balk at acting against the perceived popular will on a complicated question. There are exceptions, and those exceptions are parlayed by the media into being representative of the entire judicial community, which does a disservice both to the courts and to the public, who are led to believe in the false prophet of judicial review.

These are just some of the issues underlying yesterday's decision by the United States Court of Appeals for the Second Circuit in Landell v. Vermont Public Interest Research Group, where a divided three-judge panel affirmed a Vermont state law limiting the expenditures of all candidates for statewide office. Traditionally such hard limits were only applied to candidates that agreed to accept public financing, but the Vermont law requires all candidates to restrict spending to state-imposed levels. Yesterday's Second Circuit ruling upholds a previous lower court ruling affirming the law's constitutionality.

The holding is fairly simple for a 66 page opinion. The judges bought wholesale into the state's argument that in the absence of campaign spending limits, "corruption" would run amok through state government, as politically inclined individuals (and corporations) with money would be able to buy levels of "access" to officeholders that the regular Joe could never hope to enjoy. In the interest of democracy, therefore, the First Amendment right of candidates to engage in political speech must be curtailed.

In dissent, Circuit Judge Ralph Winter assailed the majority, not only for ignoring the Supreme Court's commands on this subject, but for not even engaging in any particular "scrutiny" of the state law to see if conformed with the Constitution. Far from being an example of judicial activism, Judge Winter calls his colleagues to task for judicial laziness.

The reaction to this decision was predictable. The National Voting Rights Institute, a party to the case, called it "an enormous victory for democracy in the United States."

And that it is. Democracy was a big winner in the Second Circuit. For most—if not all—of the interest groups that pursued this case on Vermont's behalf are advocates of true democracy, a system in which individual rights can be subjugated to the whims of the majority without notice or, absent the First Amendment, debate. Many of the interest groups supporting campaign spending limits have become frustrated through the years as Congress and the states refuse to bow to their anti-individual, usually leftist agendas. The courts have offered them some refuge, but so long as freedom of speech reigned supreme, there are always people to out-argue (and out-reason) their feeble positions. Hence the new strategy: Destroy free speech.

Ultimately it's a self-defeating agenda. The stricter the limit on campaign financing, the stronger incumbents in political races become. Challengers need money. Now, in Vermont at least, they won't have access to it, and even if they did, they won't be able to spend it. At some point the anti-free-speech groups will wake up and realize that even they won't be able to get out their message. As Judge Winter notes, even newspaper editorials might be illegal under the new Vermont law. Without the power of the collectivist media, how will many anti-individual groups ever hope to perpetuate their message among the masses?

In one respect, however, the Second Circuit did exactly the right thing in affirming the Vermont law. With a U.S. Court of Appeal now firmly on record invalidating the First Amendment, the Supreme Court will almost have to take notice. Much of the current legal environment that allowed this ruling to pass can be laid at the Supreme Court's feet. Since the first campaign finance case, Buckley v. Valeo in 1976, the justices have been fractured and divided on this issue, almost rivaling abortion in one sense as the most controversial and least-settled issue before the judiciary. This case would seem to provide a clear question for the Court—does telling a candidate how much he can spend violate the First Amendment?

I hope we get a clear answer this time: Yes, it does.


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