campaign finance reform & the constitution: a critical look at buckley

C A M P A I G N F I N A N C E R E F O R M S E R I E S

C A M PA I G N F I N A N C E R E F O R M& THE CONST ITUT ION :A C R I T I C A L L O O K AT

B U C K L E Y V. VA L E O

B Y B U R T N E U B O R N E

Copyright © 1998 by the Brennan Center for Justice at New York University School ofLaw. All rights reserved. No part of this book may be reproduced or transmitted withoutpermission in writing from the publisher, Brennan Center for Justice, 161 Avenue of theAmericas, 5th Floor, New York, New York 10013.

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The Brennan Center for Justice is a nonprofit institute devoted to discourse and action onissues of justice central to the jurisprudence of Justice William J. Brennan, Jr. The Centerwas founded in 1995 by Justice Brennan’s family, friends, former law clerks, and admirers,

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This paper is one of a series of papers issued by the Brennan Center for Justice exploring issuesof money and politics. The following titles are part of the series:

Campaign Finance Reform and the Constitution: A Critical Look at Buckley v. ValeoBy Burt Neuborne

The Values of Campaign Finance ReformBy Burt Neuborne

A Survey of Existing Efforts to Reform the Campaign Finance SytemBy Burt Neuborne

The Flow of Money in Congressional ElectionsBy Kenneth N. Weine

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About the Brennan Center for Justice

About the Campaign Finance Reform Series

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Cover design by Jennifer Eisenpresser

Burt Neuborne is the Legal Director of the Brennan Center for Justice at NYU School ofLaw. For 20 years, Professor Neuborne has been one of the nation’s most active civilliberties lawyers. A nationally renowned scholar, Professor Neuborne is the John Norton

Pomeroy Professor of Law at NYU, where he has taught since 1974. He received the University’sDistinguished Teaching Award in 1990.

Professor Neuborne joined the New York Civil Liberties Union, as staff counsel, in 1967. AsNational Legal Director of the American Civil Liberties Union (1982-86) and Assistant Legal Direc-tor (1972-74), Professor Neuborne litigated a wide range of landmark cases in the Supreme Court ofthe United States and other federal and state courts. His cases have influenced the law on suchdiverse topics as political contributions, executive non-acquiescence in judicial precedent, commer-cial and corporate speech, academic freedom, the Vietnam War, CIA mail-opening, immigration,and federal jurisdiction. Professor Neuborne has authored or co-authored four books, including TheRights of Candidates and Voters, and two volumes of Political and Civil Rights in the UnitedStates, as well as 17 law review articles, on a wide range of topics including free speech, legal theory,separation of powers, legal procedure, and comparative law.

About the Author

Carnegie Corporation of New YorkDeer Creek Foundation

Ford FoundationJoyce Foundation

Open Society InstituteFlorence & John Schumann Foundation

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Acknowledgments

This paper was funded by a generous grant from the Joyce Foundation, which is not respon-sible for its content. The Center is grateful for the skillful editing of Kenneth Weine and forDan Rothschild’s layout design. Weil, Gotshal & Manges provided proofreading services.

The following people and law firms contributed valuable background papers, many elements ofwhich were incorporated into this series: F. William Brownell and David S. Harlow of Hunton &Williams; Gregory E. Bylinsky and Dean Garfield of Kaye, Scholer, Fierman, Hays & Handler;Robert Mauriello and Elizabeth J. Sher of Pitney, Hardin, Kipp & Szuch; Steven M. Dunne andRoger Witten of Wilmer, Cutler & Pickering; Marc De Leeuw; C. Barr Flynn; and NYU law studentsRichard Brosnick and Janet Meissner Pritchard.

The following people also made helpful comments on earlier drafts of papers in this series, forwhich we are very grateful: Marsha Berzon; Lillian BeVier; Lawrence N. Hansen; Marty Jezer;David J. Leviss; Ellen S. Miller; Alan B. Morrison; Robert M. O’Neil; Trevor Potter; Lisa Rosenberg;Roy A. Schotland; and Bradley Smith.

The Brennan Center is grateful for the ongoing support of the following foundations, whichfund the Center’s Democracy Program:

Introduction ................................................................................................................................................................ 7

Buckley: Procedural History and Issues Examined ............................................................................. 8

Contribution Ceilings ......................................................................................................................................8

Expenditure Ceilings ...................................................................................................................................... 9

Disclosure Requirements .............................................................................................................................. 9

Public Financing of Presidential Elections ......................................................................................... 9

The Arguments on Both Sides ..................................................................................................................... 10

The Challengers ............................................................................................................................................. 10

The Government .......................................................................................................................................... 11

The Court�s Opinion .......................................................................................................................................... 12

The Importance of the Court�s Per Curiam ..................................................................................... 12

The Standard of Review: Money Equals Speech ...................................................................... 13

The Difference Between Contributions and Expenditures ................................................... 14

Reporting and Disclosure ......................................................................................................................... 16

Public Financing of the Presidential Election ................................................................................ 16

The Unfortunate Practical Consequences of Buckley ..................................................................... 18

The Evolution of the Law Since Buckley ............................................................................................... 20

The Expenditure Cases .............................................................................................................................. 20

The Contribution Cases ............................................................................................................................ 21

Some Lessons From the Buckley Experience ......................................................................................... 22

Reform Initiatives Consistent With Buckley ....................................................................................... 24

The Possibility of Modifying the Buckley Ground Rules ............................................................. 26

Conclusion ............................................................................................................................................................... 27

Table of Contents

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A CRITICAL LOOK AT BUCKLEY V. VALEO

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Discussion about reform of the campaignfinance process begins, and often ends,with the Supreme Court’s landmark

decision in Buckley v. Valeo, 424 U.S. 1 (1976).Since, reasoned the Buckley Court, mostcampaign speech requires the spending of money,any attempt to limit campaign spending must beanalyzed, for constitutional purposes, as if it werean effort to limit political speech itself.

Applying the traditional First Amendmenttest for limiting political speech, the BuckleyCourt ruled that congressional efforts to regulatecampaign spending must advance a “compelling”governmental interest. While the Court agreedthat the government has a compelling interest inavoiding the reality or appearance of“corruption,” the Justices rejected the argument

that the government has an interest in fosteringequal political participation by rich and poor alike.

The Buckley Court did two things: Itupheld contribution restrictions, reasoning thatlimits help control corruption. And it struckcampaign spending restrictions, reasoning thatspending money does not involve a transactionbetween a donor and a candidate, and thus thereis no possibility of corruption.

Buckley has governed for over 20 years.Given Americans’ virtual uniform abhorrence ofthe campaign finance system, and Buckley’s roleas its principal architect, it’s no surprise Buckleyremains an intensely controversial precedent. q

Introduction

CAMPAIGN FINANCE REFORM AND THE CONSTITUTION:

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Buckley: Procedural Historyand Issues Examined

In 1974, following President Nixon’s resig-nation, public demand for campaign financereform led Congress to enact the Federal

Election Campaign Act of 1974 (FECA). Thiscomprehensive set of campaign regulations wasbuilt on reforms initially adopted in 1971. In aneffort to assure that the constitutional issuesraised by FECA would be settled before the 1976presidential election, Congress created anexpedited judicial review process that forcedconsideration of all of FECA in a single case,before it went into effect.

Buckley was heard at breakneck speed. Thelower courts attempted to develop a detailedrecord, but there wasn’t time for a careful fact-sifting process. Ordinarily, an importantconstitutional case involves adversarial factualhearings, whose products help guide the judicialdecision making process. In place of suchhearings, the district court encouraged the partiesto submit so-called “offers of proof” — whichconsisted of assertions about the facts. The courtthen required the parties to negotiate over theseoffers of proof, and some were adopted as“findings.” This process created a product thatleft the Supreme Court frustrated. Throughoutthe Buckley opinion, the Court notes theinsufficiency of the factual record, warning thatits review was purely a “facial” testing of thestatute as an abstract matter. Repeatedly, theBuckley Court reserves the possibility of asubsequent “as applied” review on a fuller factualrecord.

In an effort to meet the deadline of theimpending presidential election, on November 10,1975, the Buckley Court heard oral argument onall four of FECA’s components: (1) contributionceilings; (2) expenditure ceilings; (3) disclosurerules; and (4) public financing of presidential,

as well as a challenge to the procedure for ap-pointing the members of the Federal ElectionCommission (FEC), and an assault on the expe-dited judicial review procedures themselves.

Contribution CeilingsFECA introduced four restrictions for cam-

paign contributions — payments directly to acandidate’s campaign — which Buckley ulti-mately upheld and which remain in place today.

First, FECA imposed a ceiling of $1,000 onthe amount that an individual could contributeto a candidate for federal office in connectionwith a given “election.” Since primary electionsand general elections were treated separately, thede facto contribution limit was $2,000 per per-son for any candidate.

Second, while FECA continued the long-standing ban on corporations and labor unionsdirectly contributing to candidates, Congressexplicitly authorized the creation of politicalaction committees (PACs). The creation of PACsallowed corporations, labor unions, and politicalorganizations (e.g., the National RifleAssociation, the Chamber of Commerce, and theSierra Club) to collect voluntary contributionsfrom interested individuals and pass them on toone or more candidates. PACs could givecandidates $5,000 per election, thus $10,000 eachpolitical cycle.

Third, FECA imposed annual limits for con-tributions to the national committees of politicalparties. Each year individuals were limited togiving up to $20,000, and PACs could donate upto $15,000.

Finally, Congress imposed an annual ceilingof $25,000 on an ind iv idual ’scombinedcontributions to all federal candidates,


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PACs, and national parties. No aggregatecontribution limit applied to PACs.

Expenditure CeilingsIn addition to its contribution limitations,

FECA carefully regulated political expenditureswith a series of caps, all of which the Court ulti-mately struck down.

Campaigns were subject to stringent expen-diture limits. Presidential campaigns were cappedat $10 million for the primaries, and $20 millionfor the general election. Senate campaigns werelimited to 8 cents a voter for the primaries, and12 cents a voter for the general election. Housecampaigns were limited to $70,000 for the pri-maries and $70,000 for the general elections.These spending limits were indexed annually forinflation.

Finally, the independent spending of indi-viduals was limited to $1,000 in support of a fed-eral candidate. For example, Voter Jones couldtake out a newspaper ad supporting CandidateSmith, if Jones’ costs were $1000 or less. Can-didates were permitted to spend up to $50,000of their own money on a presidential campaign;$35,000 on a Senate campaign; and $25,000 ona House campaign.

Disclosure RequirementsThe limits on campaign contributions and

expenditures were reinforced with stringentreporting and disclosure requirements. Congressrequired campaigns, PACs, and political partiesto record all contributions of more than $10, andto report to the FEC the name and businessaddress of all persons contributing more than$100. The FEC would make the latter categoryof information available for public scrutiny. Inaddition, independent expenditures of more than$100 on behalf of any candidate were to bereported to the FEC which would make thisinformation accessible to the public.

Public Financing of Presidential

ElectionsFinally, Congress provided for optional pub-

lic funding of presidential elections, which wasultimately upheld and remains in force.

Candidates for party nomination (regardlessof a party’s size) received matching funds for con-tributions of $250 and less, up to a candidate totalof $5 million. Two conditions applied: Candi-dates had to demonstrate widespread public sup-port by gathering small checks from a substan-tial number of donors in at least 20 states; andcandidates needed to abide by a $10 million ex-penditure ceiling. No provision existed for sub-sidizing a presidential candidate not affiliated witha party.

The major political party nominatingconventions (a major party was defined as a partythat received 25% of the vote in the last election)received subsidies of $2 million. Major partynominees also received a $20 million campaignsubsidy for the general election, if they promisedto spend no more than this subsidy. In otherwords, a candidate who accepted public fundingwould use only public money in the generalelection campaign.

A minor party candidate (a minor party wasdefined as a party that received between 5% and25% of the vote in the last election) received alower subsidy, keyed to the party’s vote in thelast election. A candidate from a new party(defined as any party that failed to gain 5% ofthe vote in the last election) received no pre-election subsidy, but was eligible for a post-election payment if she received more than 5%of the vote. No provision was made for fundingindependent candidates.

All subsidies were to be adjusted annuallyfor inflation.q


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The Challengers

The challengers in Buckley were an amal-gam of political conservatives, civil lib-ertarians, minor parties, and liberal

reformers. Plaintiffs included James Buckley,then a Senator from New York who had beenelected as a third-party candidate of theConservative Party; Eugene McCarthy, areformer who had run a spirited anti-Vietnam warcampaign for the presidency; the Socialist Laborand Socialist Workers Parties, the perennialstandard-bearers of the radical left in nationalcampaigns; the American Conservative Union;and the American Civil Liberties Union (ACLU).

What united the various challengers was abelief that Congress’ comprehensive regulationswould make it more difficult for challengers todefeat incumbents, and for minor parties andindependents to challenge the hegemony of thetwo major parties. (The ACLU, the solenonpartisan challenger, shared this concern butwas most interested in the First Amendmentimplications of disclosure rules and contributionand spending limits.) In short, the challengersargued that the version of campaign reform beforethe Buckley Court would have had the effect ofprotecting the “ins” from serious challenge bythe “outs.”

For example, the challengers argued thatindividual contribution limits ($1,000 tocandidates per election, and $25,000 annually)unconstitutionally interfered with freedom ofspeech and association. This interference, theyargued, would make it more difficult for achallenger to raise the money needed to wage acredible threat to an incumbent. Thesecontribution limits particularly upset minorparties, which argued that since they were unlikelyto win an election, their acceptance of

large contributions posed no real threat of cor-ruption. Finally, in a prescient criticism, reform-ers argued that severely limiting contributionsfrom individuals would enhance the power ofspecial interest groups organized as PACs.

The spending limits were challenged asdirect restrictions on political speech. Also,limiting campaign expenditures, the challengersargued, gave incumbents an unfair advantage,since they entered most races with namerecognition, a staff, and the franking privilege.Moreover, the $1,000 independent expenditurelimit for individuals, was argued to be set so lowthat it prevented supporters from engaging in actsof political consequence, such as buyingnewspaper advertisements. The plaintiffs believedthat the real problem with elections was too littlepolitical speech, not too much. Severeexpenditure limits, they feared, would put anartificial cap on political discussion.

The reporting and disclosure requirementswere challenged as undue intrusions into privatepolitical activity, especially in the context ofcontributions to minor parties and independentexpenditures on behalf of candidates. No onechallenged the concept of disclosing largecontributions. But the challengers argued thatkeeping records of $10 contributions to a minorparty unlikely to win an election seemedexcessive, and public disclosure of contributionsin excess of $100 seemed an unnecessaryinterference with the right to political anonymity,especially for gifts to controversial minor parties.

Finally, the presidential election public fund-ing provisions were challenged as fundamentallyunfair to third parties and independent candidates.The bulk of the subsidy was reserved for the twomajor parties, critics noted. Minor par-

The Arguments on Both Sides


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ties were locked into a subordinate status,and new parties were denied subsidies until afterthe election, when it was too late for many. Inde-pendent candidates were completely cut out ofthe subsidy process, both during the general elec-tion and at the nomination stage. Critics chargedthat the subsidies merely took existing two-partyorthodoxy and locked it into place for the fore-seeable future.

The GovernmentThe government defended FECA on three

levels. First, the government argued thatregulating the spending of money was not thesame thing as directly regulating speech. Whileregulating the conduct of spending campaignmoney incidentally impacted on speech, thegovernment claimed that because it wasregulating conduct leading up to speech (e.g.,the spending of money) and not speech itself (e.g.,a candidate’s statements) FECA deserved lessdemanding First Amendment scrutiny. The Courthad accepted a similar speech/conduct argumentin O’Brien v. United States, when it upheld theconstitutionality of a ban on draft-card burningduring the Vietnam War. The lower court inO’Brien upheld Congress’ ban by distinguishingbetween regulating speech (e.g., verbal protests)and regulating conduct (e.g., burning draft cards).

Second, the government argued that sincethe campaign spending caps applied to everyone,the regulations should be tested by the permis-sive ‘time, place, or manner’ constitutional stan-dard, which is used for regulations that limitspeech without regard to its content.

Earlier Supreme Court cases had used the “time,place, or manner” rationale to uphold regulationson sound trucks and reasonable limits on the ar-eas where parades and demonstrations could takeplace.

Finally, the government argued that theregulations were valid even under the moststringent standard of review, the standardreserved for rules that censor political speech.To sustain such rules, the Court demands theshowing of a compelling interest. To meet thisreview level, the government put forth twocompelling interests: The interest in deterringthe reality or appearance of corruption causedby suspicious campaign financing and the interestin fostering equal political participation byassuring that financially weak voices are notdrowned out by strong ones.

The government responded to the chargesthat the program unfairly benefited incumbentsand the existing two-party structure by arguingthat FECA leveled the playing field by removingmoney as a block to political discourse. In thelong run, the government argued, a campaignprocess free from the distorting influence of unfairconcentrations of wealth would prove morereceptive to the arguments of reformers of everypolitical stripe.

Finally, the severity of the restrictions andthe low threshold for reporting and disclosurewere defended as necessary to prevent the growthof loopholes and to provide the public with accessto campaign finance data.q


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The Court�s OpinionThe Importance of the Court�s

Per Curiam

The Buckley Court issued its opinion onJanuary 30, 1976. Confronted with atleast six major issues, and working under

severe time constraints, the Court produced a 294page opinion. The opinion is divided into a 143-page opinion for the Court, adorned with 178footnotes (some of which are more importantthan the text), 92 pages of statutory appendices,and an additional 59 pages of separate opinionsby individual Justices concurring with, ordissenting from, specific points.

The large number of legal issues and theshort period of time available to the Court,

forced the Justices to issue an unsigned per cu-riam opinion, widely believed to have beenauthored by Justice Brennan. The Court usesthe per curiam device in settings, like the Penta-gon Papers case, where time does not permit asingle Justice to circulate a signed opinion forconcurrence by colleagues, and where the issuesare too complex to resolve by unanimous vote.

Justice Stevens did not participate inBuckley, thus eight, not nine, Justices reviewedFECA. Only three Justices agreed with the percuriam in its entirety, but clear majorities emergedon every issue. Figure 1 summarizes the votingpatterns.

FIGURE 1. BUCKLEY'S SHIFTING BLOCKS

JUSTICESCONTRIBUTION

CAPS

EXPENDITURE

CAPS

DIFFERENTIAL

TREATMENT OF

CONTRIBUTIONS

&EXPENDITURES

PUBLIC

FINANCING

Burger, C.J.

Brennan

Stewart

White

Marshall

Blackmun

Powell

Rehnquist

Uphold: Strike 6:2 1:6:1 5:3 6:2

Uphold Strike Uphold Partially*

*Expenditure caps permissible asapplied to self-financing candidate.


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Justice Brennan, Justice Stewart, and JusticePowell agreed with the per curiam. Justice Whitewould have upheld all of FECA. Chief JusticeBurger would have invalidated the entire plan,except for disclosure of large contributions.Justice Blackmun would have invalidated thelimits on contributions and expenditures, butapproved the disclosure and public financingprovisions. Justice Marshall would have upheldthe limits on contributions and a candidate’spersonal expenditures, but invalidated spendingcaps for individuals and campaigns. JusticeRehnquist would have upheld contributionceilings and invalidated expenditure ceilings, butstruck the public financing rules as unfair to minorparties.

Contribution limits were approved by sixJustices, with only Chief Justice Burger and Jus-tice Blackmun dissenting.

Expenditure ceilings were invalidated byseven Justices, with only Justice White dissent-ing, joined by Justice Marshall on the narrow is-sue of a candidate’s personal expenditures. Dis-closure rules were upheld by seven Justices, withonly Chief Justice Burger dissenting on the ques-tion of small contributions. And public fundingrules were upheld by six Justices, with only ChiefJustice Burger and Justice Rehnquist dissenting.

But the clear majorities obscure theopinion’s central analytical rift — the radicallydifferent First Amendment treatment of contri-butions and expenditures. On that critical issue,which has played an enormously important rolein the evolution of modern election law, the Jus-tices were closely divided, 4 to 3 to 1. JusticesBrennan, Stewart, Powell, and Rehnquist arguedthat a bright-line First Amendment distinctioncould be drawn between contributions and ex-penditures. Justice White, Chief Justice Burger,and Justice Blackmun rejected the effort to treatcontributions and expenditures differently. Jus-tice Marshall accepted differential treatment, butdisagreed with the majority’s treatment of a

candidate’s personal expenditures, which heviewed as self-directed contributions.

Even though only a bare majority was com-fortable with the contribution/expenditure distinc-tion, its analytic framework continues to domi-nate constitutional analysis of campaign financereform.

The Standard of Review: Money

Equals SpeechThe Buckley per curiam opinion opens by

rejecting the government’s effort to secure a morepermissive standard of judicial review bycharacterizing the regulation of campaign financeas a regulation of conduct, not speech. Regulationof campaign spending has such an inevitableimpact on political speech, noted the Court, thatspending limitations should be analyzed as thoughthey were limits on speech itself.

Over the years, no aspect of Buckley hasbeen more criticized than its equation of moneyand speech. But the Court’s rejection of thegovernment’s effort to characterize FECA’s regu-lations as mere regulations of conduct, with onlyan incidental impact on speech, was based onmore than a crude confusion between speech andmoney. It was based on an assumption that, inthe campaign context, money is the fuel that pow-ers the political speech process.

As the Court noted, severely limiting theamount of money a political campaign can raiseor spend affects political speech in much the sameway that limiting the amount of gas in an auto-mobile affects mileage. Given the extremely lowexpenditure ceilings set by FECA, the BuckleyCourt seemed correct to insist that campaign fi-nance regulation be treated, for analytical pur-poses, as a direct regulation of speech. All eightparticipating Justices accepted the need to applyclassic free speech analysis, and no member ofthe Court has ever suggested applying a lesserstandard of review.


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Two possible responses exist to the Court’sequation of political speech and money. First,the Court’s assumption that expenditure limitsbite deeply into the quantity of political speechmay be a function of the severity of the ceiling.In Buckley, a very low ceiling may well havejustified such an assumption. As we will see, theCourt went out of its way to point out that a $1,000cap on independent expenditures effectively silencedindependent speakers and that many campaignsspent well beyond the levels set by the new limits.It remains to be seen whether the same assumption— that all limits gravely injure the quantity ofpolitical speech — would be justified in thecontext of more generous spending ceilings.

The government’s effort to invoke the “time,place, or manner” standard was equallyunavailing. The Court noted that FECA, unlikethe regulations at issue in the “time, place, ormanner” cases had the effect of eliminating speechentirely, not merely shifting it to a different timeor place. For example, courts have allowedprotesters to be moved from the entrance of anevent to an adjacent parking lot, reasoning thatthe protesters’ retain the opportunity to speak.But capping campaign spending entirely removesspeech from the political process.

Thus, the Buckley Court requires that cam-paign finance regulations satisfy the stringent con-stitutional test designed to govern efforts thatcensor political speech — a test that requires thegovernment to prove that the regulation is theleast drastic means of advancing a compellinggovernmental interest.

The Difference Between

Contributions and Expenditures

With the question of the governing standardsettled, the Buckley Court proceeded to canvasspotential compelling interests that might justifyregulation. Two interests were identified:Preventing the appearance or reality of “corruption”caused by suspicious forms or amounts of campaign

financing, and promoting effective participationin the electoral process by all, regardless ofwealth.

Next, the Court explored the First Amend-ment values at stake in campaign contributionsand expenditures. Campaign contributions, it wasdecided, were important acts of political asso-ciation, but not direct acts of expression. Campaignexpenditures, on the other hand, were found tobe pure acts of expression entitled to the highestlevel of protection.

The Court then proceeded to balance thepotential compelling interests in regulation —preventing corruption and equal politicalparticipation — against the First Amendmentvalues. Large campaign contributions, found theCourt, risk the appearance or reality of corruption,which the Court equated with a quid pro quoarrangement between the contributor and thecandidate. On the other hand, limiting largecontributions would not materially diminishcommunication, the Court reasoned, since 94%of campaign contributions were lower than the$1,000 ceiling, and the remaining 6% couldsimply be raised in smaller amounts. Balancingthe compelling interest of preventing corruptionagainst the Court’s view of the mild interferencewith speech caused by limiting contributions, theper curiam opinion firmly upheld the $1,000 limiton contributions to candidates.

The Buckley Court came out the other wayon spending limits. For independent expenditures— Voter Jones’ advertisement for CandidateSmith — there is little danger of quid pro quocorruption because the spender has no contactwith the candidate. For a candidate’s personalexpenditures — Candidate Smith spends$100,000 of his own money on his campaign —the Court found no danger of quid pro quo cor-ruption because there is no one to make a dealwith. Finally, for campaign expenditures — theSmith campaign’s advertising costs — the Courtconcluded that because no deals are made in theprocess of spending money, there is no risk of


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quid pro quo corruption.

On the other side of the balance, the Courtnoted the direct effect expenditure ceilings haveon the ability to speak. The extremely low $1,000limit on individual independent expenditureswould bar a supporter even from taking out anadvertisement in a newspaper. And the candidateand campaign expenditure limits would directlyimpact on the quantity of political discourse. Forexample at least a quarter of all Senate candidatesin the previous two cycles spent more than thenew limits. Balancing the lack of serious threatof corruption in the expenditure context, againstthe significant limit on political speech createdby spending ceilings, the Buckley Court firmlyinvalidated all expenditure caps.

As to the government’s argument thatspending caps were allowable because theyadvanced a compelling interest in fostering equalpolitical participation, the Court acknowledgedthis interest as legitimate — relying on it later inthe opinion to uphold public financing — butrejected using the equality rationale as ajustification for preventing political speech, asopposed to subsidizing it. Strong voices, saidthe Court, may never be censored in an effort toaid weak voices. Thus, under Buckley, if agovernment wants to equalize politicalparticipation, its sole option is subsidizing, notlimiting, candidates.

The Buckley Court’s separate treatment ofexpenditures and contributions has been criticizedon at least three levels. First, critics have arguedthat the per curiam opinion erred in ascribingless First Amendment value to campaigncontributions than to expenditures. When VoterJones writes a check to Candidate Smith, onewould think he has made the quintessentialexpression of political association. Moreover, ifthe Court was right in treating the spending ofmoney as indispensable fuel for political speech,it should not matter whether the money is in theform of an expenditure, or in the

form of a contribution that makes an expenditurepossible. In both settings, the money is the sinequa non of political speech. As Justice Marshallnoted in his separate opinion in Buckley, thedistinction between expenditures andcontributions becomes even more artificial whenspending by candidates from their personalfortunes is considered. Conversely, if, as the percuriam argued, campaign contributions can beregulated because they are only indirectly linkedto political speech, so are many campaignexpenditures. Costs for polling, salaries, andtravel are all non-speech expenditures — eachcertainly seems less connected to speech than thecampaign check Voter Jones writes to helpCandidate Smith pay for his advertisements.

Second, critics have questioned the BuckleyCourt’s assumption that if Voter Jones made therelatively modest campaign contribution of$1,001, it would risk the appearance or reality ofcorrupting Candidate Smith; while if Jones madea $1 million independent expenditure in supportof Smith, there would be no risk of corruption.In measuring the potential for corruption, criticsask, is there a real difference between contribut-ing to a candidate, and spending on his behalf?

Buckley, of course, answers this questionaffirmatively. Independent expenditures, theCourt noted, involve no communication betweenthe independent spender and the campaign. Thus,there is no opportunity for corruption. Criticsrespond by pointing to communications notrelated to the expenditure. Congressman Smithhas legislative business that will affect VoterJones, who independently spends $1 million onSmith’s behalf. The two individuals neverexpressly talk about this expenditure — but Smithsurely knows Jones made it. After the election,Smith and Jones speak about the legislative matteraffecting Jones. It’s this communication — theconversation after the independent expenditure —that critics assert the Buckley Court ignored.


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This issue is where the Buckley Court suffersmost from having been without a factual record.Enormous independent expenditures were notpart of the fictional record the Court considered,mostly because they were not yet part ofAmerica’s political process. Several scholars,reflecting on the millions of dollars independentlyspent in the 1996 elections, have called for afactually based study of independentexpenditures’ potential for corruption.

Finally, critics have attacked Buckley’s con-clusion that spending can never be regulated inthe name of equality. FECA’s spending limitswere set at an unreasonably low level. The Courtwas correct to note that the $1,000 ceiling onindependent expenditures was a de facto ban onpolitical participation, and FECA’s $70,000 limitper election for House races was also unreason-ably low. Thus, while the Buckley Court wascorrect in concluding that FECA’s extremely lowexpenditure limits significantly restrained politi-cal speech, it is not clear this reasoning shouldapply to higher spending caps.

At some point, critics argue, unlimitedcampaign spending reaches a point of diminishingreturns. Instead of bringing new ideas to thepolitical dialogue, runaway campaignexpenditures simply distort the political process.The seemingly absolute language of Buckley,critics argue, should not apply to efforts to limitextremely high-end campaign spending in thename of equality.

Reporting and Disclosure

After analyzing contributions andexpenditures, the Buckley Court turned to theclosely related reporting and disclosurerequirements. No one challenged the concept ofpublic disclosure of large contributions to majorparty candidates. The requirement of record-keeping for $10 contributions was challenged,as was public disclosure of $100 contributions.Moreover, the plaintiffs argued that disclosurewas unnecessary for contributions

to minor parties, especially if the minor partieswere controversial. Finally, it was argued thatonce the expenditure ceilings were invalidated,no basis existed for forced disclosure ofindependent expenditures.

The Buckley Court had little difficultyupholding the disclosure and reportingrequirements. First, the Court observed that noreason existed to publish contributions under$100, which is why they were sealed off frompublic view. Second, the Court rejected theargument that contributions to minor partiesshould be exempt, noting that minor parties couldaffect the outcome of elections, even if they didnot win. In an effort to protect the supporters ofunpopular political parties, however, the Courtprovided a blanket exemption from the disclosurerules for any controversial third party able todemonstrate a genuine risk of reprisal.

Most importantly, the Court argued thatprevention of corruption was not the onlyjustification for disclosure and reporting. Thesource of a candidate’s financial support, notedthe Court, was important information about thecandidate’s political positions. The Court evenfound that the importance to voters of suchinformation justified compelled disclosure ofindependent expenditures, even though earlier theCourt had found that independent expenditurespose no threat of corruption.

Publ ic Financing of the

Presidential Election

Finally, the Buckley per curiam upheld thepublic financing aspects of FECA, despite theargument that they discriminated in favor of thetwo major parties. Minor parties had no basisfor complaint since they were no worse off thanbefore the subsidies. In both settings, the Courtheld, minor parties were forced to rely on contri-butions from the public.

Of course, this analysis overlooked twoimportant things. First, by limiting the size of


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contributions, and by requiring public disclosurein the absence of formal proof of a likelihood ofreprisal, the Court actually made it harder forminor parties to raise money from the public. Thedemise of expenditure limits further burdenedminor parties, as it was certain that they wouldbe badly outspent in most settings.

Second, FECA altered the relative positionsof minor and major parties by guaranteeing majorparties a great deal of money, and permittingsupporters to spend unlimited amounts, whileminor parties were required to continue raisingmoney from the general public in small doses.

In defense of the Court’s result, any publicfunding plan must distinguish between seriouscandidates and those who do not deserve tax-payer support. While Congress’ plan could have

been more generous to serious independents andto minor parties generally, FECA’s supportershave argued that it is a fundamentally fair way ofsubsidizing serious presidential candidates.

By far the most important aspect of theBuckley Court’s public funding discussion was acasual footnote observing that Congress couldcondition optional public funding on a candidate’spromise to respect campaign expenditure ceilings.The large remaining question is whether publicfunding can come with other strings, such asrestrictions on the size and source of campaigncontributions. For in recent years, in othercontexts, the Court has been increasinglyskeptical of conditioning government assistancebehavior.q


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By upholding FECA’s contribution limits,while striking down its expenditure ceil-ings, the Buckley Court created a

campaign financing system very different fromthe one Congress intended. Congress hadestablished an integrated series of regulations,with the contribution and expenditure limitsreinforcing each other, and the entire packagewas designed to minimize the impact of moneyon elections. But without expenditure ceilings,FECA was radically altered. Further, contributionlimits and disclosure requirements made raisingmoney harder, but the lack of spending capsmaintained the system’s voracious need formoney. In simple economic terms, the BuckleyCourt limited supply (contributions), whileleaving demand (expenditures) free to growwithout limit. The predictable effect has been toincrease the pressures on candidates to satisfythe ever-increasing demand for campaign cash.Inadvertently, the Buckley opinion took acongressional program designed to minimize theimpact of wealth on campaigns and turned it intoan engine for the glorification of money.

Specifically, Buckley dramatically increasedthe political power of rich candidates, who nowcould pour limitless wealth into their owncampaigns, while opponents were left to raisecontributions in small donations from the generalpublic, or from special interest PACS. BeforeFECA, a candidate’s personal wealth could beoffset by large donations from wealthy supportersof an opponent. FECA, without the Buckleydecision, provided a system that had contributionlimits (which removed the potential corruptingimpact of large donations), and spending limits(which removed the potential corrupting effectof wealthy candidates). But the post-Buckleyscheme, where contribution ceilings remain in

place, but the limits on candidate expenditureshave been removed, makes it impossible to offsetthe power of individual candidate wealth. In areal sense, Buckley gave us Ross Perot, SteveForbes, and Michael Huffington.

Similarly, Buckley increased the relativepolitical power of special interests. BeforeFECA, a candidate was able to raise money froma large array of sources, including wealthyindividuals. FECA cut off these sources byimposing contribution caps. Under the mutationproduced by Buckley, however, candidates areunder pressure to feed the money machine createdby the removal of all expenditure ceilings. Butraising money in $1,000 increments fromindividuals is not efficient enough. Specialinterests, organized as PACS, help relieve thispressure — by handing candidates $5,000contributions. Additionally, albeit withoutcoordination with the campaign, PACs cansupport candidates through independentexpenditures.

Thus, inadvertently, the Court invertedFECA’s intent. Instead of freeing the politicalprocess from the effects of wealth disparities andthe reality and appearance of corruption, Buckleyplaces more pressure on public officials to raisemoney (having made the process more difficult),and increases the amount of special interestmoney in the system. This inversion createdprecisely what the Buckley Court identified as athreat to the democratic process: a systemcorrupt in appearance and reality. In short, theBuckley Court inadvertently gave the nation acampaign funding system that, in the words ofthe principal challenger in Buckley — JamesBuckley — no Congress would ever haveenacted.

The Unfortunate Practical Consequencesof Buckley


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The Buckley Court also upended Congress’intention with respect to the public funding ofpresidential elections. Instead of placing limitson the role of wealth in presidential elections,the public funding rules were subverted by theelimination of independent expenditure ceilings.

Without these caps, candidates are permitted toaccept public subsidies, while receiving the sup-port of unlimited independent expenditures fromwealthy supporters and organized specialinterests.q


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I n the 20 years since it decided Buckley, theSupreme Court has rigorously maintained itsdistinction between contributions and

expenditures. Restrictions on campaignexpenditures have been universally invalidated,with the surprising exception, in 1990, of aMichigan ban on corporate expenditures in stateand local elections, which the Court narrowlyupheld. Restrictions on contributions have beensustained, unless the ceiling was unreasonablylow.

The Expenditure CasesIn First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978), the Court invalidated a banon independent corporate expenditures inconnection with a referendum on taxes. Followingthe reasoning in Buckley, the Bellotti Court heldthat the corporate expenditure ban directlyimpacted on the flow of political information ofpotential interest to the electorate. In FEC v.National Conservative Political ActionCommittee, 470 U.S. 480 (1985), the Courtinvalidated a federal ceiling on independentexpenditures by PACS in support of federalcandidates. It is the NCPAC decision that dealtthe serious blow to public funding of presidentialelections, since it destroyed the government’sability to place a real cap on candidate spending.After NCPAC, presidential candidates were freeto accept the federal subsidy, knowing that theywould also benefit from friendly PACs whichwould launch expensive independentexpenditures to help their candidacies. The nextyear, in FEC v. Massachusetts Citizens for Life,Inc., 479 U.S. 238 (1986), the Court expandedNCPAC, invalidating a ceiling on independentexpenditures on behalf of federal candidates bynonprofit corporations organized to advance apolitical position.

In Austin v. Michigan Chamber ofCommerce, 494 U.S. 652 (1990), however, theCourt surprised observers by narrowly upholdinga Michigan ban on independent corporateexpenditures in connection with state and localelections. Surprisingly, Justices Brennan andMarshall, both critical players in Buckley’sinvalidation of FECA, provided the crucial votesto sustain the Michigan ban. The Court reasonedthat corporations accumulate great wealth intransactions having nothing to do with politics,and then are in a position to distort electoraloutcomes by pouring wealth into a campaign withno guarantee that the wealth reflects the generalviews of the public.

Critics of Austin argued that the Court hadignored its precedents, and that if the corporateposition truly lacked support in the community,the voters would reject it. Supporters of Austinsaw it as a ray of hope that the Court was opento reconsidering a flat ban on all spending caps.Under existing precedent, therefore, corporationshave a First Amendment right to spend moneyon referenda (Belotti), but may be forbidden fromspending money in support of candidates (Aus-tin). Supporters argue there’s logic in this dis-tinction — referenda can’t be corrupted, unlikepoliticians, so they deserve less regulation.

Whether such a fine distinction can surviveis debatable. Similarly, disputes have arisen overwhether the Court’s rationale in Austin can belimited to corporate expenditures. After all, vir-tually all concentrations of wealth come from eco-nomic transactions having nothing to do withpolitics. After Austin, can all “wealth” expendi-tures be regulated to prevent distortion of thepolitical process?

Colorado Republican Federal Campaign

The Evolution of the Law Since Buckley


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Committee v. FEC, 116 S. Ct. 2309 (1996), isthe most recent expenditure decision. In this case,the Court reasoned that a political party couldengage in independent expenditures, as long asthis activity was not coordinated with thecandidate benefiting from the spending. Criticswere astounded by this decision, arguing that thelaw always treated parties and campaigns as ifthey were inseparable. That is, it had always beenthought that the spending of money by a politicalparty would count against the amount of moneya party could give its nominee. Critics fear thatallowing parties to use independent expenditureswill further escalate campaign spending, ascandidates will be able to benefit from the limitlessfinancial support, albeit “uncoordinated,” ofpolitical parties.

The Contribution CasesIn California Medical Ass’n v. FEC, 453

U.S. 182 (1981), the Court upheld the $5,000ceiling on contributions to PACs. The challenger,an unincorporated association, argued that sinceit had a First Amendment right to spend an un-limited amount in support of a candidate, it shouldhave a similar right to contribute unlimitedamounts to PACs, as PACs could not give morethan $5,000 to any given candidate. The fundswere not being given directly to a candidate, thechallenger argued, so a quid pro quo arrange-ment was not possible.

The Court rejected this argument, holding

that the ceiling was necessary to prevent indi-viduals from avoiding contribution limits by fun-neling large contributions through associationsto numerous PACs for re-transmission to a can-didate.

In FEC v. National Right to WorkCommittee, 459 U.S. 197 (1982), the Courtupheld a ban on solicitation of the general publicby corporate PACs. The Court reasoned thatcorporate PACs were not designed to be organsof general political influence, but rather to providea convenient method for persons closelyassociated with the corporation to coordinatetheir individual political contributions.

Ironically, National Right to Work forcesPACs to operate as narrow engines for the self-interest of corporate executives, rather thangeneral vehicles for the expression of politicalideals. On the other hand, since corporateexecutives generally determine which federalcandidates receive PAC funding, the Court wasobviously concerned about providing corporateexecutives with too much political influence byopening the PAC to the general public.

In Citizens Against Rent Control v. Berke-ley, 454 U.S. 290 (1981), however, the Courtinvalidated a $250 ceiling on contributions tocommittees formed to support and oppose a bal-lot initiative. The Court stressed the extremelylow ceiling, and the lack of a serious risk of quidpro quo corruption.q


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Buckley is hardly a model for the formula-tion of public policy. The per curiamopinion resulted in the distortion of Con-

gress’ intent, imposed a regime on the nation thatno Congress would ever have enacted, and, mostimportantly, has created a campaign finance sys-tem abhorred by virtually all political participants.Its many failings provide a cautionary road-mapto future efforts of campaign finance.

First, do not look to courts as the primaryforum to solve campaign financing. The limitedfact-finding capability of courts, coupled with theinherent limitations on judicial power, makecourts the wrong place to find a viable solutionfor campaign funding issues. If courts are toparticipate in the process, Buckley warns, judicialparticipation should be confined to the usualnarrow “case or controversy” approach, whichrequires challengers to develop a factual recordchallenging a specific application of the law as itis applied to them, and counsels a court to decideonly the actual case before it, unlike the Court’sbreakneck, recordless review of FECA.

Second, facts matter. At no time in theprocess leading up to Buckley did any institutionconduct a searching inquiry into how theproposed law would actually affect the campaignprocess. There were arguments and opinionsabout the factual reality of the campaign process,and FECA’s impact on future campaigns. Butno one — not Congress, not the parties, not thecourts — conducted an in-depth study into therole of money in federal elections. This lack of aserious factual underpinning made it easier forthe Court to brush aside Congress’ judgments.The success of any future effort to reform thecampaign process is likely to turn on thepersuasiveness of the factual record (not thefactual assertions) developed to justify it.

Third, over-regulation is fatal. The 1974Act’s effort to limit expenditures was doomedby its unreasonably low ceilings. Independentexpenditures were capped at $1,000, Housecampaigns at $70,000 per election. The Courtwas correct to decide that these limits bit deeplyinto the quality and quantity of politicaldiscussion. In a real sense, FECA’s unreasonablylow expenditure ceilings precipitated the BuckleyCourt’s controversial link between speech andmoney. When the money ceiling is set so lowthat it constitutes a de facto prohibition onreasonable forms of political activity, it is naturalfor a reviewing court to equate expenditureceilings with censorship.

Apart from strategic considerations, more-over, over-regulating the political process is amistake. Unduly low expenditure ceilingsdampen legitimate political discussion. Undulylow contribution ceilings harm third parties andindependents, and unfairly enhance the relativepower of rich candidates. Unduly burdensomereporting and disclosure requirements discour-age perfectly legitimate political contributions,especially to controversial candidates.

Fourth, regulations may have unintendedeffects. Limiting spending may help incumbents.Limiting contributions may help rich candidates.Disclosure rules may hamstring controversialparties. Public financing may enshrine the twomajor parties. Any serious effort at reform mustwork through potential unintended effects, andshould provide a mechanism for periodicreconsideration as experience reveals its practicalimpact.

Fifth, a reform effort need not beconstitutional in every potential application tosurvive initial facial scrutiny. During the earlyyears of any campaign reform program, the plan

Some Lessons Fromthe Buckley Experience


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may operate unfairly in particular settings,justifying judicial intervention to protect FirstAmendment rights. But merely because aparticular aspect of a law may be invalid, theentire legislative plan need not be struck down.Moreover, in the early years of any plan, there

will undoubtedly be conflicting assertions aboutits practical effects. The fate of the entire programshould not turn on such conflicting predictions.Some mechanism allowing the plan to be testedagainst its predicted effects should be included.q


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The Buckley per curiam leaves open at leastfive important opportunities for campaignfinance reform. First, and most

importantly, the Buckley opinion explicitlypermits expenditure ceilings to be introduced asthe quid pro quo for public funding. Publicfunding, according to the Buckley Court, isappropriate, both to remove the risk of corruptioncreated by private contributions, and to equalizeaccess to the political process. As the price of asubsidy, the government can demand a pledge tolimit campaign expenditures.

Several versions of this pledge are possible.Under one version, exemplified by the presiden-tial funding plan and Maine’s recent initiative,100% of the campaign is funded, in return for apromise to cap spending at the subsidized ceil-ing. Under another version, a portion of the cam-paign is subsidized, and candidates are free toraise and spend a specified additional amount. Avariant, exemplified by the presidential primaryfunding plan, or the recently enacted Kentuckyplan, provides a subsidy in the form of matchingfunds keyed to private contributions. Under anyof these versions, the effort to cap spending iscomplicated — and perhaps doomed — by theFirst Amendment right of supporters to makeunlimited independent expenditures in support ofa candidate. Whether public subsidies can bekeyed to an effort to limit independent expendi-tures, or the geographical source of campaigncontributions, remain unanswered questions.

Finally, public subsidies need not be in theform of cash. For example, free or subsidizedaccess to television has been urged as a means oflowering the demand for money. One form ofsubsidized access to television relies on vouchers.Another compels the networks to provide free,or under-market, access to candidates. The

constitutionality of such compelled accessremains an open question, as the networks willundoubtedly argue that the government’sacquisition of network air time is anunconstitutional “taking.”

Second, existing loopholes can be plugged.The most glaring loophole, the soft moneyexception, involves no constitutional issues andcan be closed by Congress tomorrow. Thisexception for state and local party money, allowscorporations, labor unions, and wealthy donors— each supposedly barred from contributinglarge sums to candidates for federal office — tomake unlimited contributions to influence federalelections.

Third, laws can be passed that begin toexpand the meaning of the term corruption in theBuckley opinion. The Court used the term todescribe a quid pro quo arrangement under whicha candidate’s action was influenced by the receiptof money. But the corrosive impact of money isnot confined to bribery, or some lesser form offinancially induced behavior. The politicalprocess can be corrupted when a candidate loses(or appears to lose) the ability to thinkindependently, and must constantly appeal formoney from individuals and PACs. When voterswatch this they increasingly believe that theirinterests can only be advanced by the payment ofmoney. The deeply corrosive impact of such acynical view of politics should qualify as acorruption of democracy. Nothing in Buckleyforecloses a broad reading of the concept.

Fourth, arguably, a spending cap that is moregenerous could pass muster. The Buckley Court’srefusal to uphold expenditure limits may well havebeen precipitated by the unreasonably low limitsset in the 1974 statute. It is unclear whether the

Reform Initiatives Consistent With Buckley


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seemingly absolute refusal in Buckley to permitexpenditure limits would apply if the spendingcaps were far greater than those permitted byFECA. At some point, the argument goes, un-limited expenditures stop acting as the source ofnew ideas, and become a form of repetitive pro-paganda, making it impossible for poorer candi-dates to get a fair hearing.

Finally, Buckley considered only two poten-tial compelling interests — avoiding corruption,and equalizing political participation. Severalother possible compelling interests exist, includ-ing, to name a few: Improving the quality ofcampaign discourse, preserving confidence in thedemocratic process, increasing voter turnout, andequalizing access to the ballot.q


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The Possibility of Modifying the BuckleyGround Rules

Buckley can be modified in two ways. First,the factual assumptions of the opinion canbe shown to be inaccurate. For example,

the assumption that unlimited personal campaignexpenditures and independent expenditureswould not create actual corruption, or its appear-ance, is ripe for attack 20 years after Buckley.

Second, the controversial distinction be-tween contributions and expenditures can be at-tacked as arbitrary, especially in areas like acandidate’s personal spending.

Attacking this distinction is risky, as tworesults are possible. Imagine Buckley’scontribution/expenditure distinction as a rottentree. The Court could push the tree uponreformers by eviscerating the distinction betweencontributions and expenditures and then decidingthat neither may be constitutionally regulated.Alternatively, the Court could push Buckley’slogic the other way by eliminating this samedistinction and allowing the regulation ofcontributions and expenditures.

Colorado Republican can be read for cluesas to where each Justice stands on challenges tothis distinction. There appear to be three camps.

Justice Thomas — who observers think will bejoined by Chief Justice Rehnquist, and JusticesScalia and Kennedy — wants the tree to fall uponreformers. That is, in Colorado Republican, Jus-tice Thomas wrote that it is time to erase thecontribution/expenditure distinction and ceaseregulating campaign contributions. JusticesStevens and Ginsburg agree that Buckley restsupon a faulty fiction — but they welcome regu-lating both sides of the campaign ledger.

Justices O’Connor, Souter, and Breyer areundecided. In Colorado Republican this campargued that the case’s facts did not make itnecessary to decide the merits of Buckley’scontribution/expenditure distinction. In responseto Justice Thomas’ call for the Court to revisitthis distinction, Justice Breyer wrote that theCourt should proceed cautiously, noting thatneither party briefed this issue.

Observers differ on which way, if any, theseundecideds will drift. This environment has splitreformers. Some worry that challenging Buckleyis not worth its risks, and others think a gambleis justified, since, they argue, even a system withunregulated campaign contributions would bebetter than the Buckley status quo.q


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Conclusion

A s originally written, the Buckleyper curiam was probably intendedto steer the nation to public

financing of elections as the only constitutionalway to control expenditures and enhance equality.And Justice Brennan’s perception that weakvoices should be protected by making themstronger, rather than by censoring strong voices,remains wise counsel. But the movement forpublic funding has stalled, at least at the federal

level, forcing reformers to consider whether otheravenues for reform survive Buckley.

Twenty years of experience with the cam-paign finance system that Buckley created revealsserious deficiencies in the per curiam opinion’sfactual assumptions, legal conclusions, and prac-tical consequences. It is past time to revisitBuckley.q

Documents

campaign finance reform & the constitution: a critical look at buckley