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The vote in February by the 2nd U.S. Circuit Court of Appeals to deny rehearing en banc a decision on Vermont’s radical limits on campaign spending prompted several members of the court to go public. Votes to rehear en banc are usually confidential and followed by a simple order in cases where rehearing is denied. But several judges who were in the minority on the vote to rehear Landell v. Sorrell, 382 F.3d 91, were so convinced that Vermont’s Act 64 is unconstitutional that they served up dissents with unusually strong language. “States may be laboratories of democracy, and they should have leeway to experiment, but innovation is limited by the Constitution,” Judge Dennis Jacobs wrote in a 13-page dissent from the decision to deny rehearing. “The Act at issue in this case is as unconstitutional as if Vermont were to create a dukedom, apply the thumbscrew, or tax Wisconsin cheese.” Jacobs was joined by Chief Judge John M. Walker Jr. and Judges Jose A. Cabranes, Reena Raggi and Richard C. Wesley in pushing for rehearing en banc. A decision to rehear en banc, which is referred to by some judges as “in banc,” requires a majority of the active judges of the court. Walker and Cabranes also wrote their own dissents, with Walker saying the court has “failed to live up to its constitutional responsibilities.” In response, opinions were written by some members of a majority that consisted of Judges Guido Calabresi, Rosemary S. Pooler, Chester J. Straub, Robert D. Sack, Sonia Sotomayor, Robert A. Katzmann and Barrington D. Parker. Act 64 was passed as a reaction to the dominance of money in state politics, with legislative findings lamenting the inability of some Vermonters to afford running for office and the advantages of large contributors in gaining time and access to candidates. Some members of the Vermont legislature also were concerned that candidates for public office, and public officials, had to spend too much time raising money. Following a trial in 2000, Vermont District Court Judge William K. Sessions III found that Vermont had offered legitimate reasons for imposing spending limits, but nonetheless ruled that the limits were unconstitutional under the seminal U.S. Supreme Court case Buckley v. Valeo, which held that government may not limit campaign expenditures by candidates for electoral office. A 2nd Circuit majority of Judges Straub and Pooler last year found the spending limits might be constitutional because the interests cited by Vermont in support of those restrictions — preventing the corrupting influence of money on elections and conserving the time of public officials whose schedules are dominated by fund raising — were compelling. But Straub and Pooler voted to remand the case for an inquiry into whether less restrictive forms of regulation would still achieve the legislature’s goals and whether the limits on spending could have been any higher. Judge Ralph K. Winter offered a highly spirited dissent that covered more than 70 pages. Winter, who as a private attorney had argued for plaintiffs challenging the spending limits at issue in Buckley v. Valeo, dissented as to the act’s limits on expenditures by candidates, including related expenditures, and restrictions on fund raising by state, county and local committees of a political party. Winter, noting that Act 64 was passed “for the explicit purpose of creating a vehicle for litigation to overturn Buckley,” said the limits on candidate expenditures “violate the First Amendment because they limit political speech, including editorializing speech by the press, for no permissible purpose, and entrust to those who enforce the law with unfettered, unconstitutional, discretion to determine which acts of political advocacy are permitted and prohibited.” DISSENTERS SPEAK OUT The judges who dissented from the February decision not to rehear the case en banc picked up Winter’s torch in their own opinions. Walker’s 18-page dissent from the vote to deny rehearing said “the limits placed on campaign expenditures plainly violate Supreme Court precedent and the First Amendment.” He lamented that the case began in the district court almost six years ago and was argued before the circuit panel almost four years ago. “Instead of cleanly resolving, on the basis of Buckley, that Vermont’s campaign-expenditure limitations are unconstitutional, the panel majority has now sent the case back to the district court for yet more proceedings,” he said. And while Walker said he appreciated and supported the circuit’s “traditional reluctance” to rehear cases en banc, he said the court was constitutionally obligated to review Landell. POLITICAL CONSIDERATIONS The concurring opinion written by Judges Sack and Katzmann said it was important for the court to exercise restraint in dealing with a red-hot political issue. The court also was split over the wisdom of invoking the en banc procedure, just as the court has been unable to decide whether the term “in banc” or “en banc” Sack and Katzmann emphasized the standard for en banc rehearings under Federal Rule of Appellate Procedure 35(a), which states that such rehearings are “not favored and ordinarily will not be ordered unless (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Whether this case is of exceptional importance, “is, for us, a close call,” Sack and Katzmann said in their opinion, to which Judges Sotomayor and Parker signed on. And while campaign finance restraints under the First Amendment are “obviously important, at least as a general matter,” they said, “It is less clear to us though, that the decision in the case that we are being asked to review is, at this stage, itself ‘exceptionally’ important.” En banc review may ultimately be needed in this case following remand, Sack and Katzmann said, but it was not needed now, and the circuit should be careful not to leave itself open to charges of political partisanship. “We think that some disputes, because of their highly partisan and political caste, should be addressed by the federal judiciary only when and insofar as necessary,” they said. “And we think that this is such a dispute.” The judges were concerned that any decision in the case would either favor one side or the other, or at least be seen that way. “We would prefer not to enter into a process that would likely result in a decision of our full Court that would therefore be vulnerable to accusations that it is driven by result, rather than by legal analysis,” they said. Moreover, the judges doubted that a rehearing en banc “would add substantively to the Supreme Court’s deliberations,” should the Court take the case. And not only would the U.S. Supreme Court have the benefit of the original panel’s opinions, they said, the Court would also have access to all the opinions generated by the debate over whether to rehear the case en banc. IRIONIES NOTED In his own dissent, Judge Cabranes said Winter had “ably and admirably identified the grave constitutional concerns” raised by Act 64 and he said he would “commend Judge Winter’s opinion to readers including most especially the justices of the Supreme Court.” Cabranes called the expenditure limits, which start at $300,000 for governor and end at $2,000 for state representatives in single-member districts, “so laughably low that they cannot but impede the meaningful debate of public issues in violation of the First Amendment.” And as for the decision of his own court to deny rehearing en banc in the face of Buckley v. Valeo, Cabranes said, “In our system, the Supreme Court is free to revisit this question and free to overrule its own precedents. A Court of Appeals is not at liberty to do the same.” Judge Jacobs’ praise for the Winter dissent was lavish. “Compelling as Judge Winter’s dissent is qua dissent, it transcends the genre,” Jacobs said. “It is scintillating; it marshals the facts and the authorities in a way that is learned and witty, often at the same time; it is a crackling good read by any standard of law or letters.” And because he could not “add to the number or force” of Winter’s dissent, Jacobs said he would confine himself, first, to reasons why en banc review is warranted and, second, to “things I cannot resist saying.” The alleged interests asserted by Vermont in support of Act 64, he said, were not compelling. For one, Buckley “unambiguously rejected the anti-corruption rationale for limiting (candidate and independent) expenditures in political campaigns,” Jacobs said. As for the second rationale, Jacobs said, “Ironically, Vermont officials could reduce the amount of their time spent fundraising simply by raising or eliminating the contribution caps they previously enacted (and further reduce by the Act.)” The act “entrenches incumbents” he said, “an effect that is fatal under the First Amendment.” It was not surprising that Act 64′s supporters tout that it was passed by a “bipartisan majority,” he said, because “if one is an incumbent office-holder in Vermont, what’s not to like?” Jacobs also could not resist asking, “Would any judge uphold any limit on political speech if it were not that many constitutional-law professors and news media lend their prestige and voice to such measures?” He added, “It is a big mistake, however, to decide a case on the buried assumption that these self-described protectors of the First Amendment confer a reliable imprimatur.” As for constitutional law professors, Jacobs said, “Granting that some of them have expertise derived from long and painstaking study, we should keep in mind that many of them regard the Constitution instrumentally — the way a safecracker regards a safe.” The news media are also “interested players in political controversy,” he said, noting that “one arresting irony” of this case is that, if a newspaper wants to publish “a story on a candidate and requests a photo, interview or statement, and if the candidate provides such materials, the value of the ensuing publication counts against the candidate’s contribution and expenditure limits.” And Vermont may one day decide, should the press so control the public agenda, that “some reasonable limits should be placed on them.” “The Fourth Estate may be able to defend itself, but under the majority’s decision, the Fourth Estate may not be able to get much help in the federal courts of this Circuit,” he said. OPEN QUESTION Judge Calabresi’s opinion endorsed the approach of Judges Sack and Katzmann, but offered another reason for denying rehearing en banc. Had he been on the original panel in Landell, he said, “I would be bound to follow Buckley, however much I think that decision has diverted the campaign finance reform discussion from the fundamental First Amendment-level values at stake.” “A vote on whether to grant an en banc rehearing, instead, is a ‘free vote,’” Calabresi said. “As the concurring opinion by Judge Sack and Judge Katzmann so elegantly points out . . . we may decline to vote to go en banc for any number of reasons, and we need not vote to rehear a case en banc simply because we think that an opinion is wrong or is possibly inconsistent with a prior Supreme Court decision.” Calabresi said his vote was motivated by a desire “to bring back into the discussion the issues that I believe to be fundamental with respect to campaign finance legislation. . . . “Ultimately, only the Supreme Court can, by reconsidering Buckley, encourage free and open discussion of what is moving states in this field, and of what ways there might be of best serving the apparently conflicting issues at stake,” he said. “Not surprisingly, a majority of the Supreme Court itself has indicated an inclination to reopen the question.”

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