Buckley v. Valeo: Democracy's Roadblock

Money, we are told, is the mother’s milk of politics. If that is so, the political process is imbibing a toxic overdose.

Do I need to belabor the obvious? We are now in the middle of the 2008 “money primary,” in which candidates vie not for the favor of voters but for the largesse of contributors, with the clear aim of amassing enough money to make their victory seem inevitable. (So much for “one person one vote.”) One presidential candidate at least has dropped out not because his program was unworthy or even unpopular, but simply because he couldn’t raise large amounts of money.

Already major presidential candidates have begun to opt out of the public financing program for the 2008 general election because the allowance provided them -- $74.6 million in the 2004 election – will be too small to allow them to compete. Officeholders facing election must spend inordinate amounts of time drumming up campaign funds. And of course, the original evil of campaign financing – the need to cater to self-interested contributors, or in plainer terms, corruption – is still present.

In short, campaign financing has perverted our democratic system. There was supposed to be a solution in the form of limits on contributions. Clearly that hasn’t worked, even if we set aside the operations of the more or less independent “527” organizations.

The clear answer, it would seem, is to address the pathology directly by limiting not only the contributions to a campaign but also the campaign expenditures – in other words, spending limits. After all, it is far more effective to turn the water off at the faucet than to prevent the water from seeping into the well.

But spending limits are off the table for one simple reason – a Supreme Court decision titled Buckley v. Valeo.

Buckley v. Valeo is a 1976 Supreme Court decision resulting from a challenge to the Federal Election Campaign Act of 1971, as amended in 1974. (“Buckley” was New York Senator James L. Buckley, one of the plaintiffs. “Valeo” was a federal official representing the government.) In its decision, the Court separately addressed the various provisions of the Act relating to federal elections.

The Court upheld several provisions, including limits on individual contributions and the awarding of public financing.

However, it struck down spending limits on the grounds that such limits violate freedom of speech and association as guaranteed by the First Amendment, without serving a public interest (specifically, prevention of corruption) strongly enough to overbalance that violation. The decision stands as precedent, and that is why campaign spending cannot be limited.

On the same grounds, the Court struck down a limit on a candidate’s spending from his or her own personal funds.

The Buckley decision has some perverse consequences. For one, it prescribes that wealthy persons cannot altruistically give their own money to someone else’s political campaign, beyond a limited amount, but allows them to spend as much as they wish on their own campaigns.

Another perverse consequence of Buckley is the twist it gives to freedom of speech. Freedom of speech or press, as traditionally construed, is the prohibition against government interference with a person’s speaking out. It takes no notice of the fact that some people – those with much money or much power -- have the means to speak out much more effectively than others (giving rise to A. J. Liebling’s sarcastic comment that freedom of the press is guaranteed only to those who own one). In other words, freedom of the press applies equally in theory but not in practice, and this inequality has always been considered a flaw.

But Buckley v. Valeo enshrines this inequality in the law. The decision explicitly states that spending on communication through the media (for air time, newspaper advertising etc.) is an integral part of speech, and therefore everyone must be allowed unlimited freedom to spend whatever amount of money they wish on propagating their ideas. Unequal enjoyment of freedom of speech is no longer seen as something to be regretted, but as something to be protected.

Two challenges have been mounted to the Buckley decision, both unfortunately unsuccessful. In 1997 the state of Vermont passed a comprehensive campaign finance reform law which included limits on contributions. The law was upheld in the U.S. Court of Appeals and in 2006 went to the Supreme Court, which struck down the spending limits by a 6-3 margin (Randall v. Sorrell).

The city of Albuquerque passed a similar law in 1974. It was struck down by the Appeals Court in 2004 (Homans v. City of Albuquerque), and the Supreme Court refused to review it. 

I have pointed out the pernicious effect of Buckley v. Valeo in disallowing spending limits, and I have suggested that its reasoning is suspect. This brings up three issues: Are spending limits (which require overturning Buckley) legitimate and constitutional? Is there a reasonable chance that the Supreme Court will overturn Buckley? And if so, will spending limits work in practice?

ARE SPENDING LIMITS LEGITIMATE AND CONSTITUTIONAL? The spending limits are constitutional if the Supreme Court says they are constitutional. The Supreme Court in the Buckley decision said they are not. But was that decision legitimate – well-reasoned? Or does it deserve to be reversed?

The Supreme Court asserted two key points: Spending limits violate the First Amendment; and the harmful effects of prohibiting spending limits are not weighty enough to outweigh that violation (though the Court came to the opposite conclusion in the case of contribution limits).

On both counts, I (and many others) suggest that the Supreme Court was wrong. On the first point: Freedom of speech, as I mentioned above, is a guarantee of individual safety for speech. It applies to everyone, and therefore the act it guarantees must be one that everyone can engage in. The act of speaking out, of asserting one’s opinions, can be performed by anyone. But the act -- or better the acts -- of magnifying one’s speech, of spreading one’s ideas far and wide, cannot be performed by everyone. The pauper can only spread his ideas in a meager way, by telling his friends; the millionaire can spread his ideas on an infinitely larger scale and to infinitely greater effect. The pauper and the millionaire both perform the same act when they express their opinions, but the millionaire performs the additional act, proceeding from different circumstances and issuing in different effects, of spreading his ideas far and wide. The pauper and the millionaire should both be protected by the First Amendment when they perform the same act of expressing their opinions. But the millionaire should not be protected when he performs the additional and different act of spreading his opinions far and wide.

The same conclusion is supported by consideration of the purposes that lie behind the Constitution. The proper purpose of the First Amendment is to assure the free exchange and examination of ideas, especially political ideas. Giving First Amendment protection to unlimited spending is not essential to this purpose; indeed the fruits of unlimited spending -- attack ads, 20-second oversimplifications, etc. – do more to clog and distort the free exchange/examination of ideas than to facilitate it.

On the second point – that the pernicious effects of unlimited spending are not sufficient to outweigh the violation of the First Amendment – the Supreme Court’s reasoning is either misguided or outdated. The Court distinguished contribution limits from expenditure limits: Contribution limits, they said, are constitutionally permissible because they guard against the harm of corruption. (If special-interest groups can contribute only a limited amount, they won’t be able to corrupt the candidates.) Spending limits, by contrast, provide no such protection. Hence the distinction.

But this distinction is without a difference. Special-interest groups have found ways to by-pass contribution-limits, and in addition all the evils outlined at the beginning have cropped up. So the failure to limit spending is at least as pernicious as the failure to limit contributions. (In fact, we need both kinds of limitation.) 

IS THERE ANY CHANCE THE SUPREME COURT WILL REVERSE BUCKLEY? Yes, and possibly a good chance, notwithstanding the recent Vermont-case setback. In that case, the majority justices did not present a united front; two of them argued merely from Buckley as a precedent. And precedents aren’t iron-clad; Brown v. Board of Education, for example, overturned Plessy v. Ferguson, the decision that authorized Jim Crow laws.

Furthermore, as I’ve just described, spending limits failed to gain approval in the Buckley decision because they failed a balancing test – they failed, in the justices’ opinion, to be important enough to outweigh their (alleged) violation of the First Amendment.

But Supreme Court justices read the newspapers, it is said, and they must realize that circumstances have changed. With the evils of campaign financing skyrocketing out of control, we can hope the justices will recognize that unlimited spending now contributes at least as much to the evils of campaign financing as unlimited contributions do. This means that spending limits will meet the balancing test, and the Court has reason to overturn Buckley.

WILL SPENDING LIMITS WORK? At the very least there’s a good possibility that spending limits will work in conjunction with contribution limits. It’s worth a try. Indeed, as far as the candidates’ campaigns themselves are concerned, spending limits can hardly fail. If campaigns face effective limits on their spending, they can’t possibly use any more money beyond the limit and they can’t possibly need to raise more.

There remains the possibility that so-called independent organizations would spend unlimited amounts of money to campaign for their candidates. If that were allowed to occur, all the evils of the present system would reappear on different terrain – candidates would spend inordinate amounts of time begging for contributions to these independent groups, etc. The remedy is clear: Limit the amount of money that any organization can spend on political campaigning to a very small amount – perhaps enough to pay for a few mailings, no more.

With spending limits imposed on all partisan organizations, the media would bear more of the burden of disseminating political information. And that is how it ought to be, for the media at least purport to aim for objectivity. Of course there are the blogs, but they require no financing, or if they do they will be subject to regulation.

(The ideal solution would be to require the media to provide free air time and advertising space to the candidates. However, that seems to be too much to ask.) 

Let us hope that Buckley v. Valeo soon joins Dred Scott and Plessy v. Ferguson, among others, on the garbage pile of rejected Supreme Court decisions. Our democracy may not be able to withstand being in its clutches for too much longer.

One major organization providing additional information on Buckley v. Valeo is the National Voting Rights Institute, www.nvri.org.

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Volume 3, Issue 8, Posted 9:09 PM, 04.06.07