Vermont's aggressive effort to drive much private money out of politics, through a law it enacted in 1997 that set tight limits on both contributions and expenditures, appeared unlikely to withstand the court's scrutiny after an argument that included a low-key but withering cross-examination by Chief Justice John G. Roberts Jr. of Vermont's attorney general, William H. Sorrell.
The chief justice challenged the attorney general's assertion that money was a corrupting influence on Vermont's political system, the state's main rationale for its law. "How many prosecutions for political corruption have you brought?" he asked the state official.
"Not any," Mr. Sorrell replied.
"Do you think corruption in Vermont is a serious problem?"
"It is," the attorney general replied, noting that polls showed that most state residents thought corporations and wealthy individuals exerted an undue influence in the state.
The chief justice persisted. "Would you describe your state as clean or corrupt?" he asked.
"We have got a problem in Vermont," Mr. Sorrell repeated.
The chief justice pressed further. If voters think "someone has been bought," he said, "I assume they act accordingly" at the next election and throw the incumbent out.
He also challenged a line from the attorney general's 50-page brief, an assertion that donations from special-interest groups "often determine what positions candidates and officials take on issues." Could the attorney general provide an example of such an issue, Chief Justice Roberts asked. Mr. Sorrell could not, eventually conceding that "influence" would have been a better word than "determine."
By the end of the argument, it appeared clear that Vermont's spending limits would fall, and that its contribution limits, the lowest in the country, were hanging by a thread.
Justice Stephen G. Breyer said he was concerned that the limits, $400 over a two-year election cycle to candidates for statewide office down to $200 for the state's House, were so low as to "give incumbents a tremendous advantage" and "really shut off the possibility of a challenge" by a candidate who had to raise and spend more money to make an impact. Political parties face the same limits on contributions to their own candidates.
On the expenditure side, the limits go from $300,000 over a two-year cycle for a governor's race down to $2,000 for a seat in the House. The law makes no adjustments for candidates who have to run in a primary in addition to the general election. Incumbents are held to 85 percent or 90 percent of what a challenger may spend, depending on the office.
"I'd like to know why the limits are not far too low," Justice Breyer said to Mr. Sorrell.
The attorney general replied that the law's limits were sufficient, with rare exceptions, to cover the unusually low cost of campaigning in Vermont, where three 30-second spots on a Burlington cable television station can be bought for $45. Legislative districts have only 4,000 residents and much campaigning is door-to-door, he said.
"You're going to have outliers" for whom the rules may be a problem, Mr. Sorrell said, "but we have a core constitutional interest in trying to increase the integrity of our campaigns."
Six years ago, the court upheld Missouri's contribution limit of $1,075 against the argument that it did not permit candidates to raise enough money to run effective campaigns. Justice Breyer voted with the majority but said that the question was close and that any lower limit might be too protective of incumbents.
A second lawyer, Brenda Wright, also argued in defense of the law, representing a coalition of Vermont residents and organizations. Lack of proof of the corrupting role of money should not be held against the law, Ms. Wright said, because serious incidents of money buying "undue influence" typically do not ever become public.
Justice Samuel A. Alito Jr. asked Ms. Wright whether candidates could run effective campaigns with the contribution limits in place, but without expenditure limits. Yes, she replied. That is, in fact, the system that exists in Vermont today, under lower courts' rulings in this case, Randall v. Sorrell, No. 04-1528.
The Federal District Court in Burlington upheld the contribution limits but struck down the spending limits under the Supreme Court's leading precedent on the subject, Buckley v. Valeo, from 1976. The United States Court of Appeals for the Second Circuit, which sits in New York and covers Vermont, affirmed on the contribution limits. Its approach to the spending limits was more complex.
The appeals court panel held by a 2-to-1 vote that the Buckley precedent was not a complete bar to Vermont's ability to defend its spending limits. The state had demonstrated a "compelling state interest" in using the limits to combat corruption as well as to relieve officeholders of the burden of continual fund-raising, the appeals court said. But rather than let the spending limits take effect, it then sent the case back to the district court to see whether alternatives, like public financing, might achieve the same result without coming so close to the constitutional line.
James Bopp Jr., arguing for the challengers to the law, a coalition that includes the Vermont Right-to-Life Committee, the Vermont Republican Party and the American Civil Liberties Union, said the appeals court's ruling on the spending limits was incorrect as a matter of law. There was no point in permitting the case to go back to the district court, Mr. Bopp said.
Asked by several justices whether any set of circumstances could justify spending limits, Mr. Bopp said that while he would not rule out a justification as a theoretical matter, he could not think of one that would pass constitutional muster. He said the First Amendment demanded that candidates "be allowed freely to express themselves."
Mr. Bopp said that "a general cynicism about politics and government has existed since the first colonists." That was what led to the American system of checks and balances, he added. But he said the definition of corruption invoked to justify the Vermont law was far too broad.
"As long as Vermont has periodic elections, incumbents will look to the next election" and to some extent tailor their behavior accordingly, he said, adding that "if that's a definition of corruption, it's sufficient to abolish elections generally."
Mr. Bopp said the Vermont limits were too low to permit meaningful campaigns, amounting to "an unprecedented restriction on speech."
Among his allies on the court was Justice Anthony M. Kennedy. In past opinions, he has expressed serious doubts about limits about both spending and contributions, suggesting reliance on public disclosure instead.
"Let's assume that some members of the court simply accept the proposition that money buys access," Justice Kennedy said to Mr. Bopp. "It's a common-sense conclusion. I tend to think that money does buy access. But what follows from that?"
He then answered his own question. "Isn't the answer that voters can see what's going on and throw the incumbents out?"