A three-judge panel of the U.S. Court of Appeals for the Second Circuit handed down a stunning assault on freedom of speech yesterday, when it ruled in Landell v. Vermont Public Interest Research Group that Vermont’s limitations on campaign expenditures do not conflict with the First Amendment of the federal Constitution. While the U.S. Supreme Court has lamentably ruled in the past that campaign contributions can be subject to regulation, it also has long drawn the line at interfering with the amount that can be spent in pursuit of an office. With yesterday’s Second Circuit decision, the gate has been opened for a draconian campaign finance system such as Vermont’s — under which gubernatorial candidates can spend only up to $300,000 and state House candidates are held to $2,000 — to be instituted in Connecticut or New York, where the Second Circuit’s word is also law. That is, unless the High Court steps in to defend the freedom of speech.

Judge Chester Straub writes for himself and Judge Rosemary Pooler that the campaign expenditure limitations contained in Vermont’s Act 64, “serve to safeguard Vermont’s democratic process from the corrupting influence of excessive and unbridled fundraising.” The dissenter, Judge Ralph Winter, counters saying, “Act 64’s limits on expenditures by candidates violate the First Amendment because they limit political speech, including editorializing speech by the press, for no permissible purpose, and entrust those who enforce the law with unfettered, and unconstitutional, discretion to determine what acts of political advocacy are permitted and prohibited.” Judge Winter points out that the majority subverted the Supreme Court’s 1976 decision in Buckley v. Valeo, which all but forbade constraints on expenditures.

Striking down provisions of the Federal Election Campaign Act, the Buckley Court made a stark distinction between limiting contributions and capping expenditures. While limiting the amount an individual or a group could give to a candidate simply meant candidates would have to raise money from more sources, the Court said, limiting expenditures struck at the heart of the First Amendment. Wrote the Court: “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs.”

Judge Straub argues that an “unyielding” reading of Buckley — we suppose he means a reading that reflects what the Supreme Court said — would require ignoring “over three decades of experience as to how the campaign funds race has affected public confidence and representative democracy.” His ruling, however, would require ignoring more than two centuries of experience as to how the First Amendment has led to a democracy whose freedom is the envy of the world. Some may dismiss this case as just another Green Mountain State oddity, but there is a danger that the idea of restricting campaign speech could gain traction right here, in a state with some of the most expensive television time in the nation. Wouldn’t any incumbent governor sleep more soundly knowing that a Tom Golisano could not unleash a $5 million ad blitz whenever he wanted? And while Mayor Bloomberg likely has sympathy for unrestricted spending, what incumbent would want to risk facing an opponent with Mr. Bloomberg’s resources? If given the power, state politicians would almost certainly move to ease the burden of fundraising from themselves, simultaneously making life more difficult for political insurgents. The Supreme Court would be remiss to let them get away with it.