Buckley v. Valeo: A Retrospective Series

The introduction to an Institute for Free Speech symposium, which I'll be cross-posting over the next couple of weeks.

By David Keating, the President of the Institute for Free Speech:

Fifty years ago this month, the U.S. Supreme Court issued its landmark ruling in Buckley v. Valeo. Fortunately for the free speech clause of the First Amendment, the Court invalidated crucial parts of the extensive 1974 amendments to the 1971 Federal Election Campaign Act (FECA).

To mark the January 30 anniversary of Buckley, the Institute for Free Speech and the Volokh Conspiracy today begin publishing a series of essays on the opinion, which will run through the anniversary date. We at the Institute recognize that this anniversary provides an opportunity to examine how Buckley safeguards the First Amendment rights that protect our ability to criticize, challenge, and ultimately improve our government.

And the pre-Buckley world looked quite different. Before FECA, U.S. campaign finance was largely unregulated. The 1974 amendments imposed restrictions on contributions and expenditures. Buckley largely upheld contribution limits but ruled that spending limits were unconstitutional.

Had the Court upheld the law in its entirety, Congress undoubtedly would have enacted even stricter laws to squelch critics. Numerous provisions of the pre-Buckley FECA posed a true threat to free speech, so it's not an exaggeration to say the decision saved that fundamental right.

Some express surprise that it's the longest majority Supreme Court opinion, clocking in at 65,398 words. But after the en banc U.S. Court of Appeals for the District of Columbia Circuit upheld all but one provision of the law, Buckley presented a facial challenge with nine questions, and the oral arguments lasted approximately four hours and included six advocates.

The lead plaintiff was then-Senator James Buckley. A cross-ideological group of plaintiffs, all concerned about the future of the First Amendment, joined him, including then-former Senator Eugene McCarthy, Stewart Mott (a major donor to McCarthy's 1968 anti-war presidential campaign), the New York Civil Liberties Union, and the American Conservative Union. As Joel Gora, one of the ACLU litigators who will author one of the forthcoming essays, explained, "With virtually the entire political establishment arrayed against us, we felt very much like the Minutemen at Lexington and Concord."

None of the essays will discuss the provisions providing public financing for presidential campaigns. Funding for the system came from a voluntary check-off on individual income tax returns that didn't impact the tax due or your refund. While candidates took the subsidies for over 30 years, the provision was never popular with the public. At its peak in the early 80s, less than 29% of taxpayers checked the box. When Barack Obama ran for president in 2008, he believed he could raise more money privately and did. John McCain thus became the last major party presidential candidate to use public financing.

While there are strong arguments against the subsidies, which clearly favor the status quo parties, the Buckley Court ruled the spending limit was voluntary, since candidates could forgo the subsidy and raise and spend any amount on their campaigns.

That a series of more than ten essays about a single case could exist without referencing at least one of the secondary (but meaningful) issues in the matter speaks to the depth and density of Buckley. As these essays will expertly convey, the case doesn't merely resonate today—it sets the metes and bounds of much of the current legal framework encompassing not only campaign finance law but also the free speech clause.

The first essay, which appears today, addresses this directly, summarizing and explaining the provisions in the Court's opinion most relevant today to the free speech clause of the First Amendment. The essays that follow examine other aspects or impacts of the opinion. The series shines an essential and timely spotlight on a case whose impact directly affects present-day politics, election campaigns, and free speech.

Comments

[Stupid Government Tricks]

IANAL and find this a sad statement on reality:

We at the Institute recognize that this anniversary provides an opportunity to examine how Buckley safeguards the First Amendment rights that protect our ability to criticize, challenge, and ultimately improve our government.

It's supposed to be the First Amendment which protects our rights, not the current Supreme Court interpretation. Unfortunately, Supreme Court justices over the last 235 years have shown how easy it is to get around Article V.

[Brett Bellmore]

I believe this was the first Supreme court case that I paid attention to at the time it was decided. I was 17 at the time, and just beginning to get interested in politics. My first political home, the Libertarian party, was one of the plaintiffs in the case.

I was shocked that any part of the law would be upheld.

[Sarcastr0]

Baude's old podcast, dissenting opinions, had a good ep that talked about Buckley and the distinction between regulations that impact speech and regulations of speech directly, though it was focusing on the commercial speech case of Virginia State Board v. Virginia Consumer Council.

https://dissenting-opinions.simplecast.com/episodes/free-speech-capitalism-with-genevieve-lakier

As a skeptic of the scope of Buckley, I found it a thoughtful discussion.

[Brett Bellmore]

Thoughtful, yes, but I found the idea that you could trust the government to impartially identify "lies" in a political context pretty silly.

The 1st amendment seems to have been written from a perspective that government regulation of speech is just so incredibly dangerous that the whole area should simply be ruled out as a topic for legislation. The very laissez faire approach Lakier doesn't like appears to me to have been the very point of the way the amendment was drafted!

[Sarcastr0]

You start with a policy argument.

Some 'seems to have been' vibes-based originalism.
The thing that non-originalists say, that originalism is just someone's your priors put into the mouths of the founders. that's you.

Every checked into how common law rights operated before the Founding? Yeah, didn't think so.

And even then your originalist vibesmaking misses the distinction between regulating speech and regulating actions that implicate speech. Buckley refuses to make that distinction. I think that's been proven to be a mistake.
A venue where the rich get to speak and the poor get drowned out seems an obvious flaw in this analogy.

[Brett Bellmore]

It's not "Congress shall very carefully make laws". It's "Congress shall make no law". The 1st amendment really does read like a decision that this entire area of legislation was too dangerous to permit.

Mind, at the time, too dangerous to permit the federal government, not the states. The Bill of Rights was not written in anticipation of being incorporated against the states, but that latter incorporation can't reach back and change its meaning.

"And even then your originalist vibesmaking misses the distinction between regulating speech and regulating actions that implicate speech. "

Even Lakier admits that you can't make that distinction hard and fast. That you can't claim to not be regulating the press, while limiting the purchase of ink and paper.

The law in this instance was, deliberately, an exercise in incumbent protection. It sought to starve challengers of the financial resources necessary to be a threat to incumbents, who had non-financial advantages they could rely on. It sought to limit speech by limiting the money you could have available to spend on that speech being heard.

And it was absolutely content related, in that it specifically targeted political speech, the category of speech most in need of protection from government.

This is why, at the age of 17, I was aghast at the Court upholding any part of that law. It as a dagger pointed at freedom of political speech, and the Court said, "You may thrust it in this far, but no further."