Buckley v. Valeo, 424 U.S. 1 ( 1976 ), is one of the most important and controversial cases in Supreme Court history. It established the constitutional ground rules for the financing of political campaigns in America and provoked wide disagreement as to the wisdom of those rules.
The question of money and politics has been a part of American history ever since the signers of the Declaration of Independence pledged “our Lives, our Fortunes and our sacred Honor” to supporting the Declaration's principles and the American Revolution. At various periods of American history, money has seemed to play too much of a role in politics, corrupting politicians, polluting governance, and demeaning democracy. Laws were passed to try to control such excesses, but they were often skirted, prompting President Lyndon Johnson to observe that such laws were “more loophole than law.”
But the opposition to restricting money in politics is also understandable. The less a candidate or supporters of a cause can raise or spend to get a message to the voting public, the less effective that message will be. And limits on how much can be spent on political speech will often tend to favor the forces of the status quo and stifle the new voices and viewpoints that often lack sufficient resources—money—to get their message out, especially in our modern, complex society. The effort to limit campaign funding is thus seen by many as an attempt to limit political speech and political change.
Those were the ongoing issues swirling around the Supreme Court when it decided Buckley v. Valeo in 1976. With the full arrival during the 1960s of the television age, there was a growing sense among the public that political campaigns had become too expensive and too reliant on thirty-second TV ads. Some thought that the only way to improve political campaigns was to cut off much of their funding. There was also concern with effective disclosure of the sources of campaign funds.
These ideas about campaign funding gained purchase in the Federal Election Campaign Act of 1971 (FECA), the modern foundation of federal election law. Effective in the spring of 1972, that law placed severe limits on how much money candidates could spend on media advertising. It also inaugurated a regime of sweeping disclosure of the sources of political campaign funding. The new law might have worked over time, but it was not given much chance to do so for one reason: Watergate.
The Watergate scandal, which involved corruption and wrongdoing at the highest levels of the administration of President Richard M. Nixon, began in the summer of 1972 and eventually exposed a number of campaign finance abuses. Most of those abuses were either illegal at the time or would have been deterred by the effective disclosure introduced by FECA. But the broad picture of campaign finance corruption fueled the fires of legislative action.
Congress responded with the FECA Amendments Act of 1974, which made the provisions of the FECA, passed just two years earlier, seem like small change. In one fell swoop, the new act (1) set extremely low limits on contributions to candidates and parties; (2) set extremely low limits on expenditures by candidates and parties and even by independent individuals and groups unaffiliated with any party or candidate; (3) required groups engaged in political activity to register with and report to the government, as well as to make public disclosures of the names and addresses of anyone who gave one penny more than $100 to a candidate or party; (4) required nonpartisan, issue-advocacy groups, like the American Civil Liberties Union (ACLU), to register with and report to the government, as well as to disclose the names and addresses of anyone who gave small amounts to such groups; (5) required public funding for presidential campaigns, at least for the two major parties; and (6) created the Federal Election Commission (FEC), whose members would be handpicked by leaders of the House and Senate and the president, to enforce all of these new rules, regulations, and restrictions.
This sweeping law was challenged the day it went into effect by an unlikely alliance of politicians led by Senator Eugene McCarthy, a liberal Democrat from Minnesota, and Senator James L. Buckley, a conservative Republican from New York, and by a roster of groups from left and right, such as the New York branch of the liberal ACLU and the Mississippi Republican Party. What united this disparate band of dissenters was the passionate belief that the new law, by limiting and controlling the funding of political campaigns, was a direct contradiction of the First Amendment's protections of freedom of speech, press, and association; that it would harm, not help our democracy; and that it would entrench the incumbents already in power. Indeed, they labeled the new law “an incumbents protection act.” On the other side, the government officials and the groups that had lobbied for the law insisted that the regulation of campaign funding was the regulation of conduct, not speech, and thus posed much less of a First Amendment problem than opponents believed. Supporters viewed the law's restrictions as necessary to prevent corruption and level the electoral playing field, and believed that the disclosure and reporting requirements would help enforce those objectives and more effectively move the sources of campaign spending into the sunlight.
Thus, when Buckley v. Valeo was heard by the Supreme Court, the stage was set for an epic constitutional battle between protecting the First Amendment and preventing corruption and inequality. The Court in many ways delivered a split decision, in some aspects ruling favorably for the challengers and others for the defenders of the law.
First, the Court made it clear that campaign finance restrictions operate at the core of the First Amendment because they restrain political speech and association and therefore must be very carefully justified. But, the Court observed, there is a difference between contributing money to a candidate and the spending of that money by a candidate or a group. Contributions were deemed a kind of second-hand speech, where the donor is giving to express support for the recipient but does not speak beyond that. Expenditures, however, were viewed as closer to the core of speech. Based on this distinction, the Court determined that contribution limits should be judged by more lenient standards than expenditure limits.
Finally, the Court rejected the argument that spending could be limited because our campaigns, in the words of the lower court, had become “Romanesque political extravagances.” It is up to the people, not the government, to judge how much and what kind of free speech they want. Along the way the Court made it clear that, where independent groups were concerned, only spending that went for “express advocacy” of the election or defeat of a candidate could be regulated. Discussions of issues, even though mentioning or criticizing politicians, was immune from regulation.
On disclosure, the Court upheld the law's requirements on the ground that voters would be better informed and corruption more likely deterred by disclosure, even of modest contributions in the $100 range, though the Court thought that threshold was extremely low. The Court did leave open a safety valve for controversial parties and groups to claim that they would suffer particular and discrete harm if they had to publicize the names of their contributors and supporters.
Likewise, the Court upheld the system of public financing of presidential campaigns. The law gave matching funds to candidates in the primaries and a flat grant of funds to conduct the general election campaign, in both cases allowing the candidate to spend no more than the allotment. The challengers had insisted that the government had no business funding the very political activity that is designed to challenge and change the government. (That would be like the American colonists asking King George III to fund the American Revolution, Senator McCarthy liked to point out.) But the Court found positive benefits to public funding and upheld the program, even though it mostly provided funds to the two major parties and made it difficult for minor or third parties to get any of the subsidies.
Finally, the Court unanimously declared the composition of the brand new Federal Election Commission to be in violation of core principles of the separation of powers. Like foxes being put in charge of the chicken coop, Congress had too much say in the makeup of the Commission. Given the FEC's considerable powers, all of its six members had to be appointed in the manner prescribed by the Constitution: nomination by the president and confirmation by the Senate. Soon after the decision, Congress passed a law fixing that problem, and the FEC has been functioning actively ever since.
In addition to the opinion for a majority of the Court, there were individual opinions by several justices. Chief Justice Warren Burger dissented from upholding the disclosure rules, which he felt were too burdensome on the average contributor, as well as the contribution limits, because he viewed giving and spending as two sides of the same constitutional coin. He also dissented from upholding the public financing rule, reasoning, like Senator McCarthy, that the government should not be in the business of funding politics. Justice Harry Blackmun wrote a partial concurrence, noting his belief that contributions and expenditures could not be differentiated and that both should be protected against government limitation. In his partial concurrence Justice Thurgood Marshall disagreed with the Court's reasoning that wealthy candidates could not corrupt themselves and thus should be allowed to spend their own money. Justice Byron White's concurrence stated that he thought all the limits were valid, and he would defer to the expertise of the incumbents in Congress on those issues. Finally, Justice William Rehnquist wrote that public financing of presidential campaigns unfairly favored the Democratic and Republican parties in violation of principles of free speech and equal protection.
In the aftermath of the Buckley ruling, proponents of the law felt that the Court should have upheld all the limits and by not doing so fueled a “money chase.” Opponents believed that the Court should have struck down all the limits, and that by doing so only in part, it had paved the way for incumbents and well-funded issueadvocacy groups to more easily fund their unlimited campaigns. In a way, both sets of critics were correct, as the experiences of the last forty years have proven.
SEE ALSO Burger, Warren ; Campaign Finance Laws ; Freedom of Speech ; Regulation of Federal Elections .
Hasen, Richard L. “The Nine Lives of Buckley v. Valeo.” In First Amendment Stories, edited by Richard W. Garnett and Andrew Koppelman. New York: Foundation Press, 2012.
Mutch, Robert E. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law. New York: Praeger, 1988.
Smith, Bradley A. Unfree Speech: The Folly of Campaign Finance Reform. Princeton, NJ: Princeton University Press, 2001.
Wallison, Peter J., and Joel M. Gora. Better Parties, Better Government: A Realistic Case for Campaign Finance Reform. Washington, DC: AEI Press, 2009.
Joel M. Gora
Brooklyn Law School