Florida: Where the First Amendment Goes to Die: Part I-Contribution Limits

For most of us, Florida brings images of flamingos, mojitos, good fishing, and retirement.  For those of us defending the First Amendment, Florida is a constitutional wasteland.  In a good faith effort to regulate campaign finance, Florida has managed to build a system that, nigh-wholly root and branch, cannot exist in concert with the First Amendment.  This post is the first in a series analyzing the constitutional deficiencies of Florida’s regulations. 

In 2006, the Supreme Court held that Vermont’s contribution limits were so low  that were actively styming effective political competition and de facto suppressing the speech of political challengers.  The dollar amount considered too small? $400 for the governor’s race.  In Florida, a state with a population of 18.5 million, or about 30 times the size of Vermont, the maximum contribution to a statewide candidate in a primary or general election campaign is a paltry $500. 

In analyzing a state’s contribution limits to determine if they are unconstitutionally low, the Supreme Court identified five factors that must be “taken together.” Three of those factors are directly on point: Florida does not seem to have any special justification for their low limits, the law does apply to in-kind contributions, and the limits are not indexed to inflation. 

Another concern of the Court, a fear that the limits would “significantly restrict the amount of funding available for challengers to run competitive campaigns” is uncertain. Randall at 253.  Nonetheless, over a period of six election cycles from 1998-2008, only 15 total state representatives or state senators lost re-election.  In any given election cycle in Florida, approximately 140 seats are up for re-election.  Challengers need money to overcome the inherent incumbent advantage (few people remember than the anti-LBJ campaign of Eugene McCarthy was largely bankrolled by a few peacenik left-wing millionaires), and Florida’s laws prevent challengers from assembling a viable war chest. 

Although the Supreme Court has given the state legislatures wide leeway to determine the various limits on contributions that can be enacted (other state limits on individual contributions vary from a similarly low number in Colorado to the unlimited individual contribution states such as Virginia and Pennsylvania); Florida’s limits are simply too low.  It cannot be the law that a $400 contribution ceiling for the Vermont governor’s race is unconstitutional, while a $500 limit that applies to the governor’s race in a state that is 30 times the size of Vermont is constitutional. 

A quick look at the states similar in size to Florida does the trick. Gubernatorial candidates in California can receive up to $26,000 from individual contributors. Texas permits unlimited individual contributions. In New York, gubernatorial candidates may receive over $40,000 from contributors in the general election. Pennsylvania permits unlimited contributions.  Smaller, yet still “big” states fare no different: over $11,000 in Ohio, no limits in Virginia or Missouri, $5,000 in Illinois, and $3,400 in Michigan.  No court needs a “scapel” to determine which limit is appropriate, but $500 is entirely too low.

In fact, the only states with gubernatorial contribution limits under $1,000 are: Massachusetts ($500), Montana ($630), Alaska ($500), Arizona ($872), and Colorado ($550).  None of these states are remotely as large as Florida.  The least populated state in the United States according to the latest Census data is Wyoming; but even Wyoming permits contributions up to $1,000.  

We must ask, in a state where the 2010 gubernatorial election cost approximately $100 million…is there any fear of the “appearance of corruption” in a $1,000, or even a $5,000 donation?  

 

The Center for Competitive Politics is now the Institute for Free Speech.