How a Bad Interpretation of a 1976 SCOTUS Case Set the Stage for Citizens United

 

AP Photo/Susan Walsh

Demonstrators gather outside the Supreme Court in Washington, Tuesday, Oct. 8, 2013, as the court heard arguments on campaign finance in the case McCutcheon v. FEC. The Supreme Court issued its decision in April 2014 on the case's challenge to limits on contributions by the biggest individual donors to political campaigns.

When it comes to campaign finance, the Roberts Court and the American public have settled into a grim routine. Every few years, the Court—usually in the voice of Chief Justice John Roberts—strikes down another restriction on campaign expenditures or contributions. With each decision, a disappointed majority of Americans puzzle over the notion, apparently embraced by the Court’s conservatives, that “money equals speech.”

That idea is usually attributed to Buckley v. Valeo, the landmark 1976 case in which the Supreme Court for the first time considered the constitutionality of campaign finance restrictions. But the Court never said money is speech. The Buckley decision was more complicated and subtle than the “money equals speech” slogan for which it’s misremembered. It was also very much a product of its time. Understanding why sheds light on how campaign finance law could be rescued in the digital age.

Buckley was decided in the shadow of Watergate, which was in many ways a campaign finance scandal. The 1972 election and its ugly aftermath revealed how easy it had been for the re-election campaign of President Richard Nixon to solicit and extort corporate money for its slush fund in exchange for promises of favorable treatment. Much of this was flatly illegal, but some of it was in a gray area of nonetheless unsavory influence-peddling.

Suddenly, there was widespread recognition that existing campaign law allowed undue influence for wealthy corporations and individuals. In response, Congress in 1974 passed a number of strong amendments to the 1971 Federal Election Campaign Act. The 1974 amendments placed hard limits on expenditures and contributions, strengthened disclosure requirements, created a public finance system for federal elections, and established the Federal Election Commission to enforce the law.

In Buckley, the Court upheld the limits on direct contributions to political campaigns but struck down the limits on expenditures by campaigns or supporters. The Court held that although contribution limits did restrict the First Amendment right of free association, that limitation was relatively small. Individuals could still express their support for candidates, and the effect on overall political speech would be minor since the vast majority of campaign funds already came from small donations. On the other hand, the Court found that the government’s interest in preventing “the reality or appearance of corruption in a system permitting unlimited financial contributions” was important enough to outweigh the limited First Amendment harm.

Expenditure limits were a different story. It wasn’t that money was itself speech. Rather, the Court reasoned that because all campaign speech costs money, limiting the amount candidates and supporters could spend would necessarily limit the overall quantity of political speech. That imposed a much more significant burden than the limitation on contributions.

“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,” the Court wrote. “This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.” The government’s interest in preventing corruption or its appearance—which the Court found to be less applicable to limits on spending, as opposed to contributions—couldn’t outweigh the First Amendment burden. 

The Court wasn’t wrong in its factual premise: capping the total amount people could spend on campaign advocacy would have indeed limited the overall quantity of communication. In 1976, a candidate or activist who wanted to get his message out had no choice but to spend money. Print, television, or radio ads; speeches and rallies; direct mailing, pamphlets, even lawn signs: all these forms of communication cost money, and the cost increased with the number of possible listeners.

In Buckley, the Court made much of the fact, highlighted in the appellants’ brief, that the individual spending cap under FECA was far below the cost of a quarter-page ad in the New York Times or Washington Post. Its fear was that spending limits would keep certain ideas from being expressed, or certain speakers from expressing them, thus preventing the “uninhibited, robust, and wide-open” debate it saw the First Amendment as protecting.  

But even accepting the logic of Buckley, what was true in 1976 isn’t necessarily true in 2014. Thanks to the Internet, it simply isn’t the case anymore that a cap on expenditures, as the Buckley opinion said, “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Speech on the Internet is unlimited in terms of length, subject matter, and audience size, at very low flat costs. For the price of a website (or using a free social media page), a candidate or supporter can discuss any number of issues, at any depth, and reach every single person in the country.

It’s true that this only applies to text-based communication, and that video content, for example, is typically more expensive to produce regardless of whether it’s ultimately broadcasted on a campaign website or as a paid advertisement. But the Buckley rationale was based on the threat of limiting the overall quantity of political speech and the Court’s supposed fear that certain opinions would go unexpressed. While limiting the amount campaigns or supporters can spend on video advocacy would present a First Amendment concern, that concern would be less significant than an overall limit on speech as long as there are alternative ways for the speaker to get his message across. Reasonable limits should therefore survive the balancing test that the Court set up in Buckley.

Another objection to the argument that the Internet enables unlimited political speech is that while one’s online audience may be theoretically unlimited, having a campaign blog isn’t all that helpful if no one’s visiting it, and an expenditure cap would limit how much campaigns could spend to attract ears and eyeballs to its message. But limiting the amount that campaigns can spend on publicity wouldn’t seem to have an effect on the “uninhibited, robust, and wide-open” debate that the Buckley Court saw the First Amendment as protecting. That ideal, the so-called free marketplace of ideas, is fundamentally listener-centric: an informed democratic electorate relies on open political debate, allowing voters to weigh competing claims against each other. Under that model, it’s the variety of opinions that matters, not how loudly they are expressed.

The right to get people’s attention is speaker-centric. Protecting unlimited self-promotion more clearly runs counter to the open debate ideal prized by the Buckley Court, since pure self-promotion doesn’t help voters sort through the relative merits of different speakers. This is particularly true in the Internet age, where nothing prevents interested voters from seeking out more information. Unlike television and radio, where channels will only broadcast your speech if you pay them enough, the Internet doesn’t impose a toll on political communication. Search engines and the phenomena of social media sharing and viral stories mean that reaching online audiences is not invariably dependent on spending money.

In some sense, Buckley stands as an example of what happens when precedents outlive the historical context in which they were decided. What the Court in 1976 called “today’s mass society” and “the modern setting” was a pre-digital era in which television, radio, and print were the inescapable gatekeepers of mass communication. Today’s mass society, connected by the Internet, has critically undermined the dependence of political speech on money. Unsurprisingly, the current Court has been slow to take stock of this differing landscape. In McCutcheon v. FEC, the April decision that invalidated the limits on aggregate contributions, the word “Internet” appears just once, in a portion of the majority opinion arguing that the Internet has made contribution disclosure more robust. The dissent doesn’t mention it at all.  

A cynic might observe that the Roberts Court’s relentless expansion of the money-is-speech doctrine is not about following Buckley to its logical conclusions, but rather about empowering corporations and wealthy individuals. It would be naïve to expect the Roberts Court, so unwaveringly hostile to campaign finance restrictions, to recognize that Internet communication has largely taken care of the concerns underlying the ban on expenditure limits. The conservative majority seems bent on promoting the dogma expressed in cases like Citizens United and McCutcheon that only quid-pro-quo deals can be targeted by regulation and that more money in politics means a more vibrant democracy, however tilted towards plutocracy. But the effect of the Internet on the cost of speech could provide a future Court with a satisfactory basis to jettison Buckley and let Congress get back to its work, interrupted four decades ago, of controlling the role of money in politics. 

 

 

 

 

 

Comments

Your argument may be self defeating. Politicians hate raising money. If it is true that they only need to spend enough to get folks to read their blog, then they will worry less about raising money.

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