February 26th, 2004

Buckley v. Valeo

Does campaign finance reform restrict free speech?

In the aftermath of the Watergate scandal, Congress amended existing campaign finance laws to limit the amount that could be contributed to, or spent by, political campaigns. The Supreme Court considered these regulations in Buckley v. Valeo (1976) and made a momentous hash of the legislation. The verdict therefore both protects and violates free speech rights, though its arguments for the former (expenditures) apply equally to the latter (contributions).

Those who want to limit contributions argue that, in contrast to expenditures, contributions are less connected to my speech; only indirectly does my check, after proceeding through the local campaign office to the national office to an advertising firm, really express my views, or my own voice. Yet, as Chief Justice Burger observes in his dissent, the distinction between contributions and expenditures “simply will not wash.” It is more semantic than substantive. Limits are limits, regardless of their consequences or one’s intentions.

Second, political contributions of any size are still a form of speech, as the Court implicitly acknowledges in allowing up to $1,000 (now $2,000) of it. “Your contribution to a candidate,” notes the radio host Andrew Lewis, “is de facto the publication of your ideas.” Thus, however a candidate uses your money, however it reaches him, however “symbolic” it may be in constitutional parlance, it’s still your money—which means it’s still your speech. If you give money to a candidate, you bolster his candidacy; if you withhold your financial sanction or contribute to another candidate, you implicitly sap the former candidacy. This is how people communicate politically in a representative republic.

Thus, as writer Michael Hurd argues, the “extent to which we ban money from campaigns is the extent to which we ban our . . . ability to express ourselves”;[3] the only proper limits are each individual’s willingness to spend the fruits of his labor. A free society cannot survive as such without the expression of ideas unfettered.

Furthermore, as the Court itself argues regarding expenditure limits, a cap “naively underestimates[s] the ingenuity and resourcefulness” of those who seek vicarious political influence. According to Todd Gaziano, Director of the Center for Legal and Judicial Studies at the Heritage Foundation, caps are “like trying to dam a stream with a pile of sticks. Campaign spending eventually will flow through the dam, over the dam, or find another path.” Indeed, as Bradley Smith shows in Unfree Speech: The Folly of Campaign Finance Reform, caps affect the channels through which money reaches political campaigns, rather than the total amount of money.

Still, the Court argues that because its cap still leaves people “free to engage in independent political expression,” pursuing other avenues such as resource-rich advertising, caps do not have “any dramatic averse effect,” like undermining “the potential for robust and effective” campaigns “to any material degree.” But it doesn’t matter if caps preserve some speech. As Barry Goldwater declared, “[E]xtremism in the defense of liberty is no vice! And . . . moderation in the pursuit of justice is no virtue!” Accordingly—especially as the last bulwark against tyranny—free speech is too sacred to be restrained or subjected to a cost-benefit analysis; it needs no checks or balances, for it is its own.

Finally, the appellants argue that contributions exceeding $1,000 tend toward bribery. Since running for office requires significant donations, politicians increasingly offer pork barrels to those who underwrite their campaigns. Both the “actuality and appearance” of this influence peddling thus “undermine[s]” the “integrity” of and our “confidence” in the government. After all, how can I, a college student with a $25 check reserved for my favorite candidate, compete with Fortune 500 companies that contribute (however indirectly) hundreds of thousands of dollars—to multiple candidates?

Now, concerns that electoral contributions amount to quid pro quos are legitimate. The need to curtail the pressure-group warfare that engulfs Washington is urgent. Yet the criteria the Court use employ the yardstick not of the First Amendment—which should guide all discussion of free speech issues—but of its consequences. Consequences are important, but we cannot eliminate a problem by manipulating its effects.

Rather, we must consider the root cause. The Court believes this cause is unlimited contributions, in which “corruption inhere[s].” But, in fact, corruption inheres in unlimited government, toward which ours increasingly tends. Thus, to take money out of politics, we should take politics out of money. As journalist Frank Pellegrini explains: “The thicket of bendable laws [and] targeted tax breaks . . . are what keeps the campaign checks in the mail and the lobbyists in the corridors of power. When one tweak in one bit of fine print can save a corporation millions, how can we expect them to stop trying to secure that advantage.” Concludes writer Edwin Locke: only when politicians “have no special favors to sell will lobbyists stop trying to buy their votes.”

Unpublished Notes

by reducing the scope of government, we reduce the power of politicians

Statism gives the state the power to dispense favors, and so compels entrepreneurs to secure, as Time magazine put it in 1992, the “backing of big, sophisticated companies that know which bureaucratic buttons to press and which deep [governmental] pockets to pick.”

Third, the appellees argue that a cap reduces the costs of campaigning and, hence, the chance for corruption. Similarly, the Court says bribes concern “only the most blatant and specific” acts, and that disclosure laws are only a “concomitant” (612). These scanty laws thus necessitate caps that prohibit all forms of corruption. But bribery, in whatever form, has been illegal since time immemorial. Moreover, in trying to stanch all corruption, the cap stanches the free speech rights of citizens who seek no influence, but simply to be left alone.

In this way, a cap also “necessarily reduces the quantity” and “diversity” of political speech and the “size of the audience reached” (610).

Compare caps to Prohibition

As Bill Safire once put it, “Money talks, but money is not speech.”

You can’t change the consequences without changing the cause.

What first strikes me are the criteria the Court uses. For instance, in his per curiam decision, Justice Souter refers to state “interests,” which if “sufficiently important” (612), may override the rights of the people. Yet for a country whose Declaration of Independence proclaims man’s rights to be inalienable, invoking these illusionary “interests” is utterly contradictory; dictatorships, not free countries, have “interests,” which they typically use to rationalize their despotic rule.

Rather, the state cannot ban anything except acts that violate individual rights.


Appellees argue that expenditure limits serve a “public interest” by equalizing the financial resources of candidates.

Court said money spent must necessarily vary according to the “size and intensity” of support for the candidates.

Ceilings also handicap minor candidates lacking name recognition

The definition of an “expenditures” is unconstitutionally vague.

Publicly Financed Elections

Additionally, presidential campaigns would, for the first time in American history, be eligible for public funds.

saddling the country with our present dysfunctional system of election finance.

Upheld a public-financing scheme for presidential elections that patently discriminates in favor of the established Republic and Democratic parties—by paying them in advance of the elections—and against third parties, who must gain at least five percent of the national vote before being compensated for any of their expenditures in the course of the campaign.

One consequence is that millionaires, constitutionally protected in unlimited spending on their own campaigns, are given significant advantages over less wealthy opponents. And, of, course, the existing two parties were given a major hedge against possible third-party competition—unless headed by the Texas billionaire Ross Perot.

Buckley increased the prominence of many unusually wealthy candidates who swamped less affluent opponents, not to mention the disgust expressed by nonwealthy candidates over the increasing amount of time they had to spend raising money in self-defense.

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