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Buckley v. Valeo at 40

Poll Americans on the leading Supreme Court cases of the past 100 years and Buckley v. Valeo, which turns 40 this month, won’t likely place alongside Brown v. Board of Education, Roe v. Wade, or even Citizens United v. FEC. But it should. Buckley, which considered the constitutionality of the Federal Election Campaign Act of 1974, has immeasurably impacted how we choose our leaders and discuss public affairs. 

Most importantly it created the “Buckley distinction,” which protected political expenditures and contributions differently. This court-created split reverberates beyond campaign electioneering to issues like how the IRS polices politics, how the Department of Justice criminalizes political activity, and how the parties influence campaigns. Four decades on, the distinction’s uneasy compromise supplies Buckley’s relevance—for better and worse. 

{mosads}On the positive side Buckley’s wending opinion cemented its place in First Amendment lore with a single line: “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Buckley thus rejected “political equality”—equity being decided by those in power—as a legitimate reason to subjugate individual speech rights. Instead government could only curtail speech in order to combat “corruption” or its “appearance.” 

By forbidding government from rationing speech through equality, Buckley unshackled the political marketplace that has since flourished with competing and diverse voices. Contrarily the Court’s stance provided perpetual heartburn for a generation of would-be speech policers. Politicians who abhor criticism cite equality as a rationale to abate individual First Amendment rights. Academics—particularly the Harvard law faculty—have supplied intellectual support for their fight. 

But depending on which Court faction controls, what “corruption” means has sometimes metastasized to include indicia of the equality rationale. It’s gone from quid pro quo—money for official action—to including everything from “access” to politicians, “undue influence” on policy, and unfair “war chests,” and then back again. 

What’s remarkable is how those factions have changed since Buckley. Liberal Justices Brennan and Blackmun supported tossing expenditure limits, while conservative Justice White was the only vote to uphold them. In fact the Buckley plaintiffs included firebrand leftist presidential candidate Sen. Eugene McCarthy (D-Minn.) and liberal donor Stewart Mott—the George Soros of his day. The ACLU helped represent them. 

Now, however, no Democrat runs without touting “campaign finance reform,” progressive activists spend millions to rid us of “big money,” the ACLU no longer opposes contribution limits, and the Brennan Center for Justice (yes that Brennan) fakes research to support “reforms.”   

Instead, progressives now cheer only the contribution side of Buckley. The Court held that, as long as citizens could independently promote their favored candidates, the government could limit direct political contributions to candidates and parties because they implicated only the right of association, not speech. 

But contribution limits on candidates and parties did not mean the funds went away. Rather, money, like water, flowed away from candidates and parties to less regulated outlets; currently Super PACs and 501(c)(4) social-welfare groups.

And unfortunately by upholding limits on contributions, Buckley allowed government to criminalize aspects of private, ordinary political discourse. For instance, in 2010 IRS official Lois Lerner, while targeting conservative groups, also illegally gave the DOJ and FBI confidential donor lists for potential criminal investigations that thankfully never happened. But last year DOJ signaled it will increase its speech-policing activity via investigations of “coordination”—communications between candidates and their allies banned because of contribution limits. 

The deleterious effects of this kind of government oversight are manifest. In Wisconsin prosecutors conducted a multi-year hunt for illegal coordination. The criminal investigation ensnared people across the spectrum of political involvement and resulted in predawn police raids, seizure of millions of documents, and countless court appearances and legal fees. Last July the Wisconsin Supreme Court finally tossed the prosecutors’ state-specific legal theory. 

The Buckley legacy is mixed. It nurtured the wide-open continuous political dialogue that currently exists from airwaves to Internet. But it did so in a way that forced some of that discussion underground, criminalized political activity, and increased public cynicism. Still, despite its flawed distinction, Buckley’s authors had enough foresight to create space for robust political discussion. Americans should know and be thankful for this landmark First Amendment decision. 

Jossey is a campaign finance attorney and an adjunct fellow at the Center for Competitive Politics. 


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