High Court Takes Up Vt. Election Law The Supreme Court is taking up Vermont's campaign spending caps law this week. Republican lawyers say the law is a violation of free speech.
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High Court Takes Up Vt. Election Law

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High Court Takes Up Vt. Election Law

High Court Takes Up Vt. Election Law

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This week the Supreme Court is hearing oral arguments in two big election related cases, one involves Vermont's limits on campaign spending, the other concerns Texas redistricting. Both cases could have a big impact on upcoming midterm elections. Joining us now to explain is Los Angeles Times legal correspondent, David Savage. David, always nice to have you on the program.

Mr. DAVID SAVAGE (Legal Correspondent, Los Angeles Times): Hi, Neal.

CONAN: So the first case the court heard today, it's on campaign finance laws in Vermont. Tell us about that.

Mr. SAVAGE: Well, about 30 years ago in Buckley vs. Vallejo, the Supreme Court struck down the spending limits, federal spending limits, upheld contribution limits. That said if you've got a million dollars and want to spend the money to run for Congress or whatever, you have a free speech right to do that. Vermont a few years ago decided to directly challenge that. Howard Dean was then the governor, and he said, money buys access and we all know it, and we ought to do something about it. And they passed very strict spending limits and very low contribution limits sort of to directly challenge Buckley vs. Vallejo, and to the surprise of some people, the won in a lower court. And so the case was now before the Supreme Court this week.

I think it's a sort of a blue state's states' rights. That is, Vermont wants to say that we would like to return or sort of preserve small town democracy. We don't want big money to be driving politics and drives who wins elections, and also drive what the legislatures care about. We want our politicians and state officials to be sort of people who care first about what the ordinary people of the community want.

So, it was a big test of that. I would say it looks like Vermont is going to lose. The justices, particularly led by John Roberts, were very skeptical of Vermont's claim. Roberts said, are you a really corrupt state, he said to the attorney general, and if you are a corrupt state, why don't you bring prosecutions against your corrupt politicians. And the attorney general tried to argue, it's not that politicians are taking bribes; it's that the whole system is corrupt, that they get elected by spending a lot of time raising money for campaign contributions, and then when they get an office, they even admitted this in hearings, that their agenda is frequently driven by the groups or corporations that gave them campaign contributions.

CONAN: Similarly, it would seem that allowing unlimited spending gives rise to very wealthy politicians, Michael Bloomberg, for example, in New York.

Mr. SAVAGE: Yes, absolutely. Or in New Jersey last year, they had John Corzine spending about $40 million of his money to win the governorship, and the Republican candidate had $30 million to spend. It's the kind of thing that no ordinary person can run a campaign like that. And so many of the races are driven by expensive negative ads, because if I'm running against you, I assume, I need to collect a lot of money, because you may collect a lot of money and run negative ads against me. So, I've got to collect a lot of money and run negative ads against you. You're familiar with it. I think all Americans are familiar with this. And Vermont really wanted to make a statement to do it differently. If they won, I think some other states would follow suit. By the tone of today's argument, I don't think they're going to win.

CONAN: You mentioned the new chief justice John Roberts and what he had to say. What about the new associate justice, Samuel Alito?

Mr. SAVAGE: He listened and said very little. He made one comment and didn't really tip his hand. And I think one of the things all of us will be watching for in this opinion is, I think it's pretty certain, as I say, that they're going to strike down the spending limits, the court has been very closely divided on this issue of contribution limits. The McCain-Feingold Act was upheld by the Supreme Court on a 5 to 4 vote, with Justice O'Connor casting the fifth vote. If Sam Alito has the free speech view, that is any restrictions on campaign contributions or spending are first amendment violations, we could have a new five-member majority that thinks contribution limits are unconstitutional, as well.

CONAN: Let's move on to the other case. This in Texas, and, well, basically what's at stake here, I mean there's raw political power at stake here, but who gets to draw the lines, and when they get to draw them?

Mr. SAVAGE: Yes, that's right. The tradition in American politics is that once every ten years the census bureau comes out with new census data and the politicians re-draw the districts in their state for congress and for the state legislature, because people move around and some cities grow and some cities shrink, and you want the districts to be the same size, so you do it once a decade.

Texas sort of broke that unofficial tradition by Tom DeLay, once the Republicans took control of the house and senate and had the governorship a couple of years ago, they went back and re-drew the lines, and it worked. There's been a 17-15 Democratic majority in the Congressional delegation after 2002, and it turned into 21, anyway, the Republicans...

CONAN: The Republicans got a big boost.

Mr. SAVAGE: They got a big boost, five or six seats. I think one person actually switched.

CONAN: Mm-hmm. And the Republicans say they were just trying to correct an old wrong, from the says when the legislature and the state house were in Democratic hands they drew the lines to give themselves maximum advantage, and why shouldn't the Republicans be allowed to do the same thing.

Mr. SAVAGE: I think that's the best argument on the state's side, and it may be the prevailing one. That is, as a procedural matter, there seems something suspicious and wrong about doing a mid-decade re-gerrymandering, or redistricting. On the other hand, if the final result is not that bad, if Texas after all is a majority Republican state, I think some of the justices, maybe the majority, will say, in a sense, no harm no foul.

CONAN: Well, what would the implications of that be? Might other states then jump in and say well, we can now change our congressional lines and state legislature election lines to maximize the benefit for the party that's in power?

Mr. SAVAGE: Absolutely. Absolutely. Pennsylvania is a state that leans slightly Democratic. They have districts now that are going to create, have 12 Republicans, 7 Democrats, probably for the rest of this decade. The Democrats would just take strong hold of the state legislature there, why not go back and change the Pennsylvania lines and say the Democrats could do what the Republicans did in Texas? So yes, I think other states will follow suit.

CONAN: And as you mentioned, this has been a tradition to do this every ten years. Just a tradition, there's no more weight to that than just, this is the way we've always done it?

Mr. SAVAGE: I don't think so, Neal. Unless the Supreme Court says this is unconstitutional as an equal protection violation. Or, they could say, look, the redistricting should be done on new census figures, there's something a little troubling about doing it after five or six years, because you're dealing with old census data. But no, there's no law that says you can't do that right now.

CONAN: And, an incredibly politicized process would get even more incredibly politicized.

Mr. SAVAGE: That's right. It would just be, it's sort of a poisonous, partisan process in a lot of states already. It is, a number of people have said it's a situation where politicians pick the voters rather the way around. The politicians right the lines to ensure themselves, you know, their reelection, by giving them selves a favorable district, this would just be more of the same.

CONAN: And, in fact, this is preceded to such an extent that people think for the 435 seats in the House of Representatives, maybe 20, maybe 30 at the outside, are actually competitive.

Mr. SAVAGE: Yes, that's right. I think that's one of the real shames of this, is that, frequently, in many states, it's not a one-party gerrymandering, it's a two-party gerrymandering. If I'm a Republican and you're a Democrat, we can sort of get together and say, why don't we draw a line that gives me a safe district and gives you a safe district and then there's no competition at reelection time.

CONAN: Interestingly, this was one of the ideas that governor Arnold Schwarzenegger tried to put through in a referendum in California, I guess last year, and it got stopped.

Mr. SAVAGE: Yes, I think it's unfortunate that Schwarzenegger apparently overplayed his hand a bit, and alienated a lot of people, including the teacher's unions. I think this one, creating a better way to draw district lines, a less partisan way, would have been a good reform.

CONAN: David Savage, thanks very much for being with us.

Mr. SAVAGE: Thank you, Neal.

CONAN: David Savage, the Los Angeles Times legal correspondent, joined us from his office here in Washington, D.C.

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