Controversy: Should Buckley Be Overturned?

Continuing the debate from "Watch What You Wish For: The Perils of Reversing Buckley v. Valeo," by Alan B. Morrison (January-February 1998)



Dear Alan:

The Supreme Court's decision in Buckley v. Valeo (1976) to strike
campaign spending caps is one of the most bitterly criticized rulings of the
century. You are right to urge Buckley's many detractors to consider the
broad implications of jettisoning it ["Watch What You Wish For,"
January-February 1998]. But your fear that if the Court did so it would
unwittingly commit the constitutional equivalent of a chain saw massacre is—thankfully—wide of the mark.

A new Twentieth Century Fund report, "Buckley Stops Here"—which we authored and edited, respectively, in consultation with a working group
of 12 leading constitutional litigators and scholars—describes in detail how
Buckley can and should be overruled without disturbing other First
Amendment precedents. Based upon this extensive analysis, we can confidently say
that your article caricatures the arguments of reformers; underestimates the
strength of free speech precedents in other areas; and ignores judges' expertise
in distinguishing one factual or legal scenario from another.

Your parade of horribles rests precariously on the observation that the
"most popular cry among campaign finance reformers" is that the
spending of money on campaigns is entitled to no First Amendment protection,
because it is conduct, not speech. Only by characterizing the argument in such
sweeping terms could you possibly suggest that striking Buckley would be
tantamount to adopting a general rule that any speech that requires the spending
of money is shorn of First Amendment protection. Yet we can think of no serious
reformer who presses this argument and can imagine no Court that would ever
adopt it. Thus, there is no reason to fear that "advertisements . . . would
be treated principally as conduct involving the receipt of money and not speech
protected by the First Amendment." Nor is there any threat to the
protection of commercial speech or to cases like New York Times v.
Sullivan
, the famous libel decision establishing the right of the press and
citizens to criticize public officials. Those cases, and the many others you
describe involving the spending of money in connection with speech, rest on
their own rock-solid constitutional foundations.

The argument that we, and most campaign reformers, levy against
Buckley is this: Yes, spending on speech (and, more specifically, on
campaigns) is entitled to First Amendment protection. But regulation of campaign
spending can be upheld if the government's justification is sufficiently
weighty. For example, the Court might uphold a cap on campaign spending because
an arms race of unlimited fundraising can corrupt candidates by increasing their
susceptibility to the influence of large donors. Or it could conclude that it is
necessary to mitigate the money chase in order to give candidates ample time to
serve the people. Or the Court might uphold a law limiting campaign spending in
order to diminish unfair barriers to entry and expand the pool of candidates.

None of those rationales would entail a Court pronouncement anywhere near as
cataclysmic as the one you predict: "[A]lthough the First Amendment allows
a person to state his views, the government has the authority to decide how
widely they may be disseminated." Just because a specifically articulated
government interest justifies regulation of campaign spending does not mean that
the state can regulate the quantity of speech willy-nilly in any context.
Buckley itself illustrates the point. In the interest of limiting
corruption, Buckley upheld caps on contributions to candidates, even
though it found that giving money to candidates is a protected form of speech
and association. But that justification has not spilled over into other areas
outside the election context. Likewise, the Court has upheld an absolute ban on
corporate spending on elections; yet, as you point out, corporations continue to
enjoy broad free speech rights in other arenas. When you stand up in court to
deliver an oral argument, Alan, the government limits how much you can speak—but
it cannot limit how long you speak elsewhere, perhaps to the dismay of your
colleagues.

You acknowledge that the narrow rationales for reform that we advocate
"would have lesser impacts outside the campaign finance area," but
dismiss them without a word of discussion because, to you, "the likelihood
of their adoption does not seem great." Compared to what? A panoply of
First Amendment-gutting arguments that reformers do not even make?

Given your extensive experience making sophisticated and nuanced arguments
before the Supreme Court, you understand better than anyone the crucial point
that constitutional adjudication is an intricate balancing act that depends upon
context and rationale. You overlook the difference between elections and other
forums for speech. You ignore the many ways in which campaign finance
regulations differ from other regulations of speech. And you treat every
governmental interest as if it would support all types of speech restrictions
equally.

As you well know, judges are in the business of drawing lines, sometimes with
a scalpel's precision. They can easily distinguish the special context of
elections from other activities like publishing and advertising. Supreme Court
precedents are not teetering dominoes and the justices are not clumsy bulls. The
Court can excise Buckley surgically from the legal landscape without
making the "whole edifice of First Amendment case law . . . come tumbling
down."

Yours sincerely,

E. Joshua Rosenkranz
Andrew L. Shapiro


Dear Josh and Andrew:

I wish I shared your optimism that the First Amendment would remain strong,
vital, and untouched if the Supreme Court changed its mind on Buckley.
But I don't, for several reasons.

First, while you may not take the position that the "spending of money
[in political campaigns] is shorn of First Amendment protection," many
anti-Buckleyites do. And the reason they do is that the limited
overruling of Buckley that you propose would leave most of Buckley
intact.

For example, your suggestions for limiting total spending would not affect
the limit on what wealthy candidates can spend on their own campaigns. Nor would
they affect the capping of independent expenditures. That leaves in place two-
thirds of what are seen by reformers as very objectionable parts of
Buckley.



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Second, the principal concerns of the Court in setting aside candidate
spending caps are its great reluctance to countenance any government-imposed
limits on the exercise of free speech, and its deep suspicion that, if
incumbents set spending limits, the amounts chosen would be designed to entrench
those already in office, rather than to eliminate corruption or advance other
worthy goals. In other words, the Court would not simply have to approve of some
theoretical ceiling, but would have to sustain the particular one chosen by
legislators with a vested interest in keeping their jobs. I know of no case in
which the Court has upheld a cap on speech in circumstances remotely resembling
these.

Furthermore, in striking down the cap on independent expenditures the Court
relied on two cases (Mills v. Alabama and Miami Herald v.
Tornillo
) in which anticorruption or fair-election-results arguments had
been offered and quickly turned aside. Mills sought to prevent the press
from making surprise statements on election day (and only election day) that
could not be answered in time by a candidate; Tornillo had determined
that a newspaper could say whatever it wanted about a candidate, so long as it
gave a limited right of reply. Even these sensible provisions were found to
violate the First Amendment and were struck down by the Supreme Court—what's
more, Buckley characterized the restrictions in Mills and
Tornillo as far less sweeping than those on independent expenditures.
Although the Court did not cite Mills and Tornillo in the portion
of the opinion dealing with candidate ceilings, their rationales apply there as
well. To me, the part of the Court's opinion on spending caps that is most
convincing and deeply rooted in the First Amendment is the strong aversion to
any government limits on speech based on what the government sees as the public
interest.

Yes, the Court did uphold some contribution limits in Buckley, but
these are the exceptions. Recognizing the dangers of large contributions masking
as bribes, the Court majority accepted limits on what they saw as those less
direct forms of speech, which Congress has the right to control. And while I do
agree that the absolute ban on corporate spending in election races is not
entirely consistent with other First Amendment jurisprudence, I have always
thought that it would have been politically unthinkable for the Court to
overturn that rule which has now been in place for almost 90 years. If these are
truly exceptions to the Court's First Amendment analysis, I wouldn't expect the
Court to create another one just to fix the spending limits struck down in
Buckley. Indeed, it is more likely that the Court will overturn those
exceptions than that they will create new ones.

Part of my judgment on these issues is colored by the Court's recognition,
which I am certain we all share, that there is a clearly effective and
constitutional means of dealing with runaway candidate spending: federal
financing of elections, conditioned on the candidate and the party agreeing to
spending caps. As you know, I see the attempt to overrule or even narrow
Buckley as an unwise and time-consuming diversion, which is almost
certain to fail or to produce unacceptable side effects if it succeeded. It's
time for reformers to abandon their quixotic assaults on Buckley and turn
their attention to the real business at hand.

Sincerely,

Alan


Dear Alan:

Here's a challenge. We are supplying you with a list of more than 100
prominent constitutional scholars who believe the Supreme Court should overrule
Buckley. We bet you couldn't name three who would subscribe to the
blunt money-is-not-speech view you attribute to "many anti-Buckleyites."
Further, we'll wager that the overwhelming majority of
these scholars believe that Buckley can be overturned on narrow grounds,
without either leaving two-thirds of the case intact or eviscerating free speech
law.

Imagine a Court that concludes that the money chase corrupts candidates. Or
that inordinate fundraising leaves politicians inadequate time to serve the
public. Or that the current campaign finance system chokes competition by
setting an astronomical price of admission to the race. Such a Court could
readily uphold a cap on the amount of his own fortune a Ross Perot could spend
on a campaign or the amount an NRA could spend bashing Perot's opponent. The
Court would merely have to appreciate that candidates, rather than acting in a
vacuum, are locked in a multiplayer arms race. Each scurries to exceed the
spending leveled against him—by his opponent or anyone else.

Moreover, when the Court upheld contribution limits, it was not just because
it feared "contributions masking as bribes." In Buckley (and
later cases), the Court emphasized that legislatures could regulate the flow of
money to prevent candidates from owing contributors a "political
debt." No negotiated deal was necessary. The Court understood that a
candidate who received $2,001 from an independent contributor might feel
beholden to that contributor. Yet it didn't realize that the candidate might
also feel beholden to a fat cat who wrote a $250,000 check to the local TV
station to run ads advocating the candidate's election.

A Court rooted in reality could overrule Buckley without disturbing
Mills or Tornillo, both of which involved government attempts to
control the content of expression. One involved a prohibition against saying
"Vote for Smith" on election day and the other involved a command to
publish someone else's statement. Spending caps, in stark contrast, cap only the
total amount of money spent, leaving candidates and all political speakers free
to say whatever they want whenever they want.

Now for some common ground: We all agree that public financing of campaigns,
contingent on voluntary spending limits, is the most promising avenue of reform.
But this would still allow wealthy candidates to opt out and independent
spenders to scuttle the entire system. Spending caps would seal these leaks. Our
attacks on Buckley are part of "the real business at hand."

Sincerely,

Andrew and Josh


Dear Andrew and Josh:

I should have been clearer on who are the "anti-Buckleyites"
who believe that speech is not money: They are not constitutional scholars, but
citizen activists who want campaign finance reform and members of Congress
(including former Senator Bill Bradley) who have gone so far as to introduce
constitutional amendments to bring about that result. My point is that if their
approach to overruling Buckley prevailed, it would do serious damage to
the First Amendment, a conclusion that I gather you embrace as well.

Second, you ask me to imagine three conclusions by the Court, but fail to
tell me how the Court will get there without getting into the business of
deciding how much speech is too much—something it has always refused to do. You
say that limiting speech is different from limiting candidate spending, but that
seems to run directly contrary to the Court's central theme in Buckley
(and to common sense): Political campaigns today must have money to amplify the
voice of the candidate. It is simply unrealistic to claim, as you do, that
"spending caps, in sharp contrast, cap only the total amount of money
spent, leaving the candidates and all political speakers free to say whatever
they want." That's rather like saying I can enjoy my freedom of the press,
if only I owned one.

Third, even in the unlikely event the Court could bring itself to decide that
lawfully received contributions can become corrupting if they have to be chased
too hard, I do not understand how that rationale or any other you advance would
result in sustaining limits on how much of his own money Ross Perot could spend
on his own campaign or on how much the NRA could spend bashing Perot's opponent.
In other words, if the parts of Buckley you don't like were in fact
overturned, then regulated campaigns would be limited in their spending, but
rich candidates and groups that make independent expenditures would not be.
Perhaps you disagree, but my own view is that our system is better off if we
don't drive money away from official candidate committees and their parties. But
unless we can cap independent expenditures—a highly unlikely scenario, in my
opinion—that is precisely what will happen if your call for spending caps
prevails.

If we ever do reach the Nirvana of public financing, I'm not very worried
about the opulent opt-out. After all, neither John Connally nor Ross Perot came
close to winning, and I don't think most Americans will vote for people who buy
their way into office. And if I'm wrong, that's democracy.

Finally, you want to limit independent expenditures, even within a system of
public financing that will presumably have some flexible ceiling to counter such
expenditures. I disagree: Protecting such speech-related expenditures is what
the First Amendment is all about, and I don't want to change it.

Sincerely,

Alan



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