Landell v. Sorrell

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JOSÉ A. CABRANES, Circuit Judge,

with whom JOHN M. WALKER, JR., Chief Judge, and JACOBS and WESLEY, Circuit Judges, join, dissenting from the denial of rehearing en banc.

I am pleased to join the opinions of Chief Judge Walker and Judge Jacobs, dissenting from the denial of rehearing en banc. I add only a brief comment.

In his comprehensive and fully persuasive dissent from the decision of the panel, with which I concur fully, Judge Winter ably and admirably identified the grave constitutional .concerns raised by Vermont’s Campaign Finance Reform Act, codified at Vt. Stat. Ann. tit. 17, §§ 2801-2883 (“Act 64”). Judge Winter’s opinion is a tour de force and, as Judge Jacobs aptly observes, a great read. I take this oppor*179tunity to commend Judge Winter’s opinion to readers, including most especially the Justices of the Supreme Court. I write separately only to reemphasize one concern with our Court’s decision to deny en banc review of this case.

Under Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), Act 64’s campaign expenditure limits are, without a doubt, unconstitutional. See, e.g., Buckley, 424 U.S. at 39, 96 S.Ct. 612 (recognizing that campaign expenditure limits, even when “neutral as to the ideas expressed, limit political expression ‘at the core of our electoral process and, of the First Amendment freedoms’ ”). 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.

The particular expenditure limits imposed by Act 64 are so laughably low1 that they cannot but impede meaningful debate of public issues in violation of the First Amendment’s guarantee of free speech. See Buckley, 424 U.S. at 93 n. 127, 96 S.Ct. 612. The attempts of the Vermont legislature to dress up the “legitimate” rationales buttressing Act 64 — fighting corruption and conserving public officials’ time — collapse under the weight of Act 64’s more probable consequences, which include (1) an almost certain and drastic reduction of political speech, (2) potentially insurmountable disadvantages to challengers of incumbents, and (3) severe limitations on press coverage of political races. See Landell v. Sorrell, 382 F.3d 91, 176-82 (2d Cir.2004) (Winter, J., dissenting).

Where government seeks to “regulate political speech the way it regulates public utilities,” id. at 153, and protects incumbents at the expense of political expression, it is the role of the courts to defend the Constitution and to promote the principles of free speech that sustain our democratic order, not to enable bald-faced political protectionism.

The majority’s ruling is a clear departure from the Supreme Court’s ruling in Buckley. I therefore dissent from the denial of rehearing en banc.

. See Vt. Stat. Ann. tit. 17, § 2805a (limiting campaign expenditures based on office candidate is seeking: $300,000 for governor; $100,000 for lieutenant governor; $45,000 for secretary of state, state treasurer, auditor of accounts or attorney general; $4,000 for state senator, plus an additional $2,500 for each additional seat in the senate district; $4,000 for county office; $3,000 for state representative in a two-member district; and $2,000 for state representative in a single-member district).