Watch What You Wish For

On January 30, 1976, the Supreme Court issued its historic decision in Buckley v. Valeo, which has set the constitutional contours of debate about campaign finance reform ever since. Many who would like to see the campaign finance laws changed have been frustrated by the parts of Buckley that used the First Amendment to strike down limits on expenditures by candidates and on independent expenditures by others. They believe that overruling those parts of Buckley is necessary to achieve fair elections for public office in this country.

Yet forgotten in all the clamor for tighter campaign finance regulation is the critical importance of precedent in our system of constitutional adjudication. It is nearly impossible to overrule a single decision without significant ripple effects on the precedents on which it relied and on the cases that have subsequently relied on it. While Buckley was explicitly about campaign finance, it has had a major impact in other areas where the First Amendment extends significant protection: commercial speech, associational rights, fundraising activities, and non-electoral political speech. Even if just part of Buckley were overturned, many other legal doctrines would have to be reexamined, and the First Amendment and the protections it offers could be profoundly shaken. At the very least, reformers ought to think through the ramifications falling outside the election law area before urging that Buckley be overruled.


What Buckley Said

After a series of campaign scandals in the 1972 election, Congress took decisive action. It saw the problem in two parts: First, some people were making large contributions to candidates and parties, which at least made it look as though their wealth were buying political favors. Second, races were seen as too expensive; some people, with their own money or with access to money from others, were thought to have too much influence. Thus, the Federal Election Campaign Act of 1974 (FECA) limited how much money individuals or political action committees (PACs) could give to a candidate or spend on their own, how much of their personal wealth candidates could use in their own campaigns, and how much lawfully raised money candidates could spend.

Buckley involved a wholesale challenge to the 1974 law, brought by candidates, donors, and political groups of all varieties who agreed on little else than that FECA offended the First Amendment. The case was considered on an expedited basis, with the decision issued less than three months after it was argued, in order to have the rules established for the 1976 elections as early as possible. The opinion for the Court in Buckley was not signed by any single justice, almost certainly because the decision was a joint product. The only dissenter on the expenditure issues was Justice White, though Chief Justice Burger also dissented in part because he would have stricken even more of the statute than the majority did.

When campaign finance reformers speak of overruling Buckley, they do not mean the entire opinion. Indeed, they very much like the part that upholds the authority of Congress to control the size of contributions that individuals can make to candidates ($1,000 per election) and to PACs ($5,000). And they also approve of the ruling that Congress may condition receipt of federal dollars on an agreement to abide by congressionally imposed spending limits.

Rather, reformers object to the Court's decision to strike down three kinds of expenditure limits:

  • limits on the amount that a candidate may spend from funds lawfully raised, principally from others;
  • limits on the amount that individuals may spend from their own assets on their candidacies; and
  • limits on the amount that may be spent by an individual or a PAC, in support of (or in opposition to) a candidate, but independent of that candidate.

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All of the Court's rulings have a common rationale: In the context of political elections in the last quarter of the twentieth century, "virtually every means of communicating ideas in today's mass society requires the expenditure of money." This conclusion is often referred to as "spending money is the equivalent of speech" when the money is spent for political expression. The Court's decision to treat spending as speech in this context entitles it to the full protection of the First Amendment. In contrast, if spending money were treated as pure conduct, it could be regulated with less judicial scrutiny. To reach its conclusion, the Court relied on two related sets of rights: the right of the speaker who wishes to make his or her opinions heard, and the right of individuals to associate together in order to make a greater impact than they could have separately. In deciding Buckley, the Court recognized these rights as mutually reinforcing, especially to protect free expression during an election, which the Court saw as one of the major purposes of the First Amendment.

The defense of FECA relied largely on United States v. O'Brien (1968), which upheld a statute forbidding the burning of draft cards. The statute had been challenged on the ground that draft-card burning was purely symbolic speech and hence entitled to the highest form of First Amendment protection. Instead, the Court ruled that there were sufficient reasons to treat draft-card burning as a crime because the cards were an essential part of the Selective Service registration system then in effect.

The Buckley Court, however, rejected the analogy to O'Brien. It recognized that "some forms of communication made possible by the giving and spending of money involved speech alone, some involved conduct primarily, and some involved a combination of the two." But it went on to observe that "the dependence of a communication on the expenditure of money" did not "reduce the exacting scrutiny required by the First Amendment." In other words, communication doesn't lose the protection of the First Amendment just because it requires the spending of money.

The Court cited several cases to support that proposition. One was Bigelow v. Virginia (1975), in which the Court set aside a conviction for publishing a paid advertisement for abortion services to be performed in New York, where they were then legal, in a Virginia newspaper at a time when the abortions were illegal there. Another was New York Times Co. v. Sullivan (1964), where the First Amendment was held to be a defense to a charge of libel against the New York Times, which had been paid to publish an advertisement critical of the racist conduct of certain Alabama officials. In both of these cases, the beneficiary of the First Amendment was not the person whose ideas were being published, but the publication that received the money that the principal speaker paid to have the message delivered.

The Court further distinguished the O'Brien line of cases on the ground that the punishment of draft-card burning didn't limit the quantity of speech, whereas campaign spending regulation did. The draft-card burner could express his position as often he wanted, as long as he did not use his draft card to do it. But the spending limits, the Court said, "imposed direct quantity restrictions on political communications and associations." The Court further noted that the challenged provisions "reduced the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Accordingly, the Court concluded that the highest form of First Amendment scrutiny would be required for campaign finance laws.

The Court then turned to a discussion of the $1,000 limit on expenditures by individuals, which it found prevented almost all independent communications. (An independent expenditure, it should be made clear, is money spent by a group or individual to support—or defeat—a candidate, but not in concert with either the candidate or any supporting political party; a contribution, in contrast, is money given to the candidate or to a party to be spent as part of an election campaign, or, in the case of a "soft-money" contribution, to be spent on a party's nonelection activities.) The Court also observed that the restrictions on overall candidate spending limited the rights of association of others by putting a ceiling on total monetary contributions, thereby effectively precluding some individuals from associating with candidates by financially supporting them. As the Court noted, the $1,000 limitation on independent expenditures by organizations "precludes most associations from effectively amplifying the voices of their adherents, the original basis for the recognition of the First Amendment protection of freedom of association." The Court concluded its general discussion of expenditure limits by stating that FECA "imposed significantly more severe restrictions on protected freedoms of political expression and association than . . . on financial contributions."

The Court upheld the $1,000 contribution limit to candidates because it did not "undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates and political parties." This conclusion was made decidedly easier by the Court's next holding, which struck down all of the expenditure limits because they "imposed direct and substantial restraints on the quantity of political speech." The Court found that "a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups and candidates" by prohibiting individuals "from voicing their views . . . through means that entail aggregate expenses of more than $1,000 during any calendar year."

In a subsequent part of the opinion, the Court rejected the asserted governmental interest in equalizing the ability of candidates to make their views known, observing that "the concept that the government may restrict the spending of some elements of our society in order to enhance the relative voices of others is wholly foreign to the First Amendment." Here it relied on New York Times v. Sullivan and the cases cited by it, as well as other cases that had struck down burdens on First Amendment rights. The Court also rejected limits on spending by candidates from their personal or family resources, observing that candidates, no less than others, have the right to vigorously advocate their own positions. In the end, the Court concluded:

The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive or unwise. In the free society ordained by our Constitution it is not the government but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain the control over the quantity and range of debates on public issues in a political campaign.

Justice White dissented on a number of issues, but his dissent on expenditure limits failed to cite a single case to support his position or even to indicate specifically where his disagreements with the majority lay. What is reasonably clear is that White was much more willing to tolerate regulation of political campaigns where the legislature had identified dangers to the political process "at least so long as the ceiling placed upon the candidates is plainly not too low." For White, the perception that money can buy elections was sufficient to trump whatever First Amendment considerations stand in the way. In my view, the majority in Buckley had the better of the constitutional argument, but the more significant question today is this: If White's view and that of many campaign finance reformers prevailed, what would happen to other First Amendment decisions?


How Buckley Might Be Overturned

To see the dangers of overturning Buckley, we need first to consider the grounds on which the Court might do so. The most popular cry among campaign finance reformers is for reversing the treatment of spending money as speech under the First Amendment. Such a ruling would permit government to regulate the total amount that a candidate could spend, the amount of an individual's personal wealth that could be used in his or her own race, and the amount of independent expenditures that one person could make.

Alternatively, the Court might overturn Buckley if it could be convinced that the reasons in support of spending limits were sufficiently compelling to satisfy the First Amendment. Using this logic, something like the following corruption arguments might succeed:

  • Candidates can be corrupted by independent expenditures as well as by direct contributions.
  • Candidates who must raise large amounts of money, even in amounts of no more than $1,000, are corrupted by the process.
  • Accretions of individual wealth used by a candidate on his or her own election corrupt the system because such wealth is unrelated to broad political support for the ideas of its fiscal backer.
  • At some level, spending money is no longer a communications function but rather a reflection of economic power that government may regulate.

In all of these arguments, the guiding assumption is that the government can decide that too much money is being spent on races for elected offices.

These rationales require the Court to draw lines to indicate what kind of spending (and how much) is protected and what is not—and it has been very reluctant to do that. Moreover, some campaign finance reformers would like regulation of total expenditures by a candidate, but not independent expenditures, while other reformers would prefer the reverse. It seems unlikely that the Court would be willing to start tinkering with some of the Buckley rules, while leaving others in place. Thus since most proponents of reform seek to overrule Buckley either on the grounds that spending money should not be treated as political speech, or on the grounds that the government has the right to control the amount of speech in political campaigns, let's consider the consequences of the Court's overturning the case on the basis of one of these broader views.


Falling Dominoes

A whole edifice of First Amendment case law has been built on the opinion in Buckley. What's more, Buckley itself relied on a foundation of earlier Supreme Court decisions to reach its conclusions regarding the constitutionality of expenditure limitations. If Buckley were to be overturned, might the whole structure come tumbling down?

The two principal cases cited by the Court were Bigelow v. Virginia, decided just seven months before Buckley in 1975, and New York Times Co. v. Sullivan (1964). If Buckley were overturned on the theory that campaign expenditures were conduct and not speech for First Amendment purposes, these two decisions would be in serious jeopardy.

The defendant in Bigelow had received money to run an advertisement in a newspaper for abortion services that the state claimed the right to prevent from being delivered to its citizens; the defendant in the New York Times case had received money to run an advertisement alleged to be libelous. In neither case was the defendant the primary speaker—it was simply the entity that had accepted money to run an ad that was prepared by another person, either with the goal of selling a service (Bigelow) or expressing an opinion (Sullivan). By contrast, the speakers covered by Buckley are primary speakers who seek—by spending money—to disseminate their message widely. If Buckley were overturned on the grounds that spending money to broadcast a message was conduct, not speech, advertisements taken out in all forms of media would be treated principally as conduct involving the receipt of money and not speech protected by the First Amendment.

But the ramifications are still more disconcerting than that: For example, to the extent that it provides commercially useful information, such as stock market quotes or racing results, a newspaper could be treated as a business, and therefore could be subject to the same regulation as formal advertisements. Hard news and editorials would probably remain outside the "speech for money" categories, although even that is not certain.

Put another way, although the fact that a publication is sold or receives money for an advertisement has never been seen to make the First Amendment inapplicable, it is doubtful that this proposition would survive if the equating of spending money with speech in Buckley were overturned. It would still be permissible for all of the primary speakers to get their messages out and receive First Amendment protection for them. However, if they sought to amplify their messages by spending money, that activity might well no longer be entitled to First Amendment protection. Of course, the results in Sullivan and Bigelow might be unchanged because other First Amendment doctrines might come to their rescue, but those and other cases for which the rationales of Buckley were vital would surely be on shakier grounds.

The second group of cases the Court drew on in setting aside the expenditure limits were those relying on the First Amendment right of association. The principle case in this category was NAACP v. Alabama (1958), in which the Court used the right of association to prevent the state from obtaining the names of the NAACP's financial supporters. If collecting money were considered simply conduct, the names of those contributors would no longer be protected by the First Amendment—even though others who were supporters, but did not give money, would not be subject to having their identities disclosed.

What if Buckley were overturned on the grounds of a compelling state interest, overriding the First Amendment, in limiting spending? In resolving that issue in Buckley, the Court relied on New York Times v. Sullivan, principally to make the point that the First Amendment never allows the suppression of the quantity of speech. If Buckley were overturned on these grounds, Sullivan, too, would be in jeopardy because it would mean that the Court had adopted the proposition that, although the First Amendment allows a person to state his views, the government has the final authority to decide how widely they may be disseminated.

The Buckley majority saw the expenditure limit as a ceiling on the total quantity of speech and contrasted that restriction with two cases in which it had found less severe intrusions to be invalid. In Mills v. Alabama (1966), the Court had struck down limitations that were designed to prevent unfair surprise by banning editorials regarding candidates, but only on election day. In Miami Herald Publishing Co. v. Tornillo (1974), it struck down a statute giving political candidates attacked by a newspaper a right to reply, even though the law did not limit what a newspaper could say as long as it ran the response. If these restrictions on free speech were inconsistent with the First Amendment, the Court reasoned in Buckley that the expenditure limits in FECA were clearly unconstitutional.

Thus if spending money on political speech is protected as speech, the only way that this part of Buckley could be overturned would be for the Court to conclude that all of the restrictions on speech—in Mills, Tornillo, and Buckley—were constitutional because the interests advanced were sufficiently weighty to overcome the First Amendment. This would be a major shift in constitutional law. If this were to happen—that is, if Buckley were to be overturned on the issue of whether the government may limit expenditures in campaigns for public office—it is difficult to imagine how Bigelow, New York Times v. Sullivan, NAACP v. Alabama, Mills, Tornillo, or a number of other cases could survive. Moreover, many post-Buckley cases would also stand a substantial chance of falling.


More Speech Impediments?

For many years prior to 1975, the generally accepted judicial view was that commercial speech was not entitled to any protection under the First Amendment. That doctrine began to erode in Bigelow v. Virginia; four months after Buckley, the Court completed its commercial speech revolution in Virginia State Board of Pharmacy v. Virginia Citizen's Consumer Council, Inc. In that case, consumers challenged a Virginia statute that made it unlawful to advertise the price of prescription drugs. Since paid commercial speech is at the other end of the spectrum from speech regarding political elections (the former merely seeks to promote conduct, which itself is not entitled to First Amendment protection), if the money spent in Buckley were not considered speech, then the money spent advertising the prices of prescription drugs could not be speech in Virginia Board of Pharmacy either, and the law would have been judged solely under the very lenient tests applied to economic regulations. While the Virginia Board of Pharmacy opinion went beyond Buckley when it struck down the statute there, if Buckley were reversed, the Pharmacy Board decision almost certainly could not stand. As a result, consumers would be kept in the dark about the price of a product that may be essential to their health. This was just the beginning of a long series of cases—the most prominent being Bates v. State Bar of Arizona (1977), which set aside the absolute ban on lawyer advertising—that have relied on Buckley and its precedents that set aside a variety of restrictions on commercial speech.

In Buckley, the Court recognized that it was dealing not only with the right of free speech, but also with the right of free association, two rights often seen as mutually reinforcing under the First Amendment. If Buckley were overturned, subsequent cases providing protections to persons associating together would also be threatened.

For example, In re Primus (1978) involved a disciplinary action brought against a lawyer who had solicited a client on behalf of the American Civil Liberties Union. The act of solicitation was seen as more than simply speech, but was nonetheless protected because of the associational rights recognized in Buckley and other cases that could be infringed only if the reasons given survived exacting scrutiny and the restrictions were narrowly drawn. The importance of the dichotomy of conduct versus speech, and of the First Amendment's protection of the right of association, was made clear in a decision rendered the same day as Primus. In Ohralick v. Ohio State Bar Ass'n, the Court refused to extend First Amendment protection to the same type of conduct—a lawyer's solicitation of a client (while the client was still in the hospital after an automobile accident)—because there was no associational interest being protected.

The ability to speak is often dependent upon the right to spend money in order to raise more of it. In Meyer v. Grant (1988), the Court held that a state could not outlaw the use of paid petition gatherers for a statewide initiative. Yet another line of decisions, beginning with Village of Schaumberg v. Citizens for a Better Environment (1980), overturned state and local laws limiting the ability of charitable organizations to raise money. In all these cases, the associational activities of those who supported the charity were an important basis of the rulings. The fact that money was involved did not reduce the level of First Amendment protection.


There are also types of political speech that do not involve a choice among candidates. Two years after Buckley (and relying heavily on it), the Court in First National Bank of Boston v. Bellotti (1978) struck down a Massachusetts statute that prohibited corporations from making contributions or expenditures for the purpose of influencing referenda on the state's ballot, rejecting the rationales used to sustain bans on electoral spending by corporations. Again, that ruling relied on Buckley's conclusion that spending money to make one's political views known is entitled to First Amendment protection. In an area between issue advocacy, as in Bellotti, and election advocacy, as in Buckley, the Court has also allowed nonprofit corporations to make independent expenditures in support of candidates who agree with them on their issues, despite the ban on for-profit corporations making such expenditures (FEC v. Massachusetts Citizens for Life, 1986). This could not have happened without Buckley's conclusion that money can be speech in the context of a political campaign.

Similarly, in McIntyre v. Ohio Elections Commission (1995), a pamphleteer distributing anonymous leaflets was fined $100 for failure to disclose her identity, and the Supreme Court reversed. If the spending of money to produce the leaflets had been seen as conduct and not speech, the conviction might have stood, unless some other aspect of First Amendment law had saved the defendant. In San Francisco County Democratic Central Committee v. Eu (1986), the Court cited Buckley to establish that the state may not restrict the speech of some persons in order to enhance the relative voice of others, declaring that restrictions on partisan pre-primary endorsements in San Francisco County were unconstitutional.


Unintended Consequences

It is impossible to predict precisely what would happen if the expenditure limitation rulings in Buckley were overturned, but there can be no serious doubt that the general protections of the First Amendment would be significantly narrowed. If the Court concluded that spending money on elections is not speech, it would have a major impact on many practices that the courts have protected from government interference. If the Court decided that the governmental interest in leveling the playing field outweighed the interests of candidates and their supporters in unrestrained debate, then the basic relation between the government and the right to speak under the First Amendment would be undermined. In either case, the ripple effect would extend not only to cases that have relied on Buckley, but also to those on which Buckley relied and that are a central part of our First Amendment jurisprudence. Although there are some rationales that the Court might adopt that would have lesser impacts outside the campaign finance area, the likelihood of their adoption does not seem great. But even these less sweeping rationales would surely have significant consequences for other First Amendment jurisprudence.

To achieve the broad reversal of Buckley that many reformers seek, the Court would have to conclude either that using money to amplify speech is not entitled to full First Amendment protection or that the government has the right to decide how much speech is too much in contested races for political office. If either of those approaches were adopted, a substantial body of First Amendment law would be quite different from what it is now. At the very least, there is a real question about whether many First Amendment decisions that formed the cornerstone of Buckley or that were built on Buckley's analysis would survive. Those who would see Buckley's expenditure limitation rulings overturned in order to achieve campaign finance reform need to come to grips with these questions before their advocacy takes them to a place where they and their supporters do not want to be.

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