The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"The Buckley Principles," by Lee E. Goodman
"The core First Amendment principles of Buckley v. Valeo endure after fifty years."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by Lee E. Goodman, a partner at the Dhillon Law Group and a former Chairman of the Federal Election Commission:
I have been citing Buckley v. Valeo (1976) since I started practicing First Amendment law in 1990. Buckley has stood as the cornerstone of First Amendment jurisprudence in the field of campaign finance since 1976, so fundamental that every lawyer was expected to learn it and invoke it like a secular Bible.
No Supreme Court decision has been more significant in shaping the logic that constrains the government's efforts to restrict election campaign-related speech. Numerous Court decisions over the next five decades have built upon the principles established in Buckley, and it continues to guide First Amendment law to this day.
From the beginning, the decision was a thorn in the side of those who sought to restrict campaign speech in the name of "good government" and equitable objectives. Indeed, over the ensuing fifty years, there have been spirited efforts to reinterpret it, reverse it, and even to evade it by altering the First Amendment itself. Such advocates came close once, and only once, in McConnell v. FEC (2003), but have otherwise failed to displace Buckley's logic.
Free speech advocates have relied upon the speech protections established in Buckley and, in doing so, have successfully extended its logic to a broader realm of speech and speakers. The core principles set forth by the per curiam Court in Buckey have endured as the foundation for free speech rights and inspired a number of court decisions expanding free speech in election campaigns.
- Money is not speech, but a necessary tool of expression.
The first, and most significant, holding of Buckley is its treatment of money in politics. The two words, when juxtaposed, conjure a highly pejorative notion. But the Court unflinchingly analyzed the necessary relationship between speech and the resources required to speak. Whether the resource is money or property, a restriction on one's use of his resources to speak is simultaneously a restriction on his speech and is thus subject to First Amendment protection.
This logic, considered controversial at the time and often maligned, has proved unassailable and frustrates censors. First, if government were to tell the New York Times that it has unlimited free speech rights, but is subject to strict limits on the use of its printing press and the amount it may spend on paper, ink, journalists and delivery trucks—because those resources are valuable, expensive, and constitute property rather than speech—the New York Times would have an obvious free speech claim. The same is true of each citizen's use of his or her resources to spend money to speak.
Second, there is no logical difference, under the First Amendment, between spending one's money to purchase and operate a printing press and spending it to rent the printing press temporarily to publish a message in a limited space on a page of the newspaper. That is, a citizen's right to purchase an advertisement within the New York Times' newspaper is as protected as the newspaper company's right to print its Sunday edition. The New York Times and citizens who pay the New York Times for advertising space are equally protected by Buckley's logic. This conclusion is unassailable and stands the test of time.
- Total expenditures to speak about elections cannot be limited.
The second profound principle articulated in Buckley was that expenditures to fund speech cannot be limited any more than the government could set a limit on the number of words permitted in a New York Times editorial or the pages in a book. Because citizens and campaign committees cannot be limited in the amount of speech they disseminate, they cannot be limited in the aggregate amount of money they spend to disseminate speech. Government cannot require speakers to stop speaking at a certain limit. Limiting a speaker to a certain dollar limit operates as a limit on the amount of speech one is allowed to disseminate. So government cannot limit election campaign advocacy to a certain dollar figure beyond which one must be quiet. That simple holding has blocked many efforts to censor the amount of speech in our democracy.
Based on this logic, Buckley struck limits on the total amount of money each candidate's campaign could spend to advocate election of the candidate. As a result, government cannot impose aggregate spending limits on political speakers—including campaign committees, political parties, and political action committees. That holding has become a bedrock principle of First Amendment rights in campaign finance.
- Independent expenditures to fund speech cannot be limited.
Having established that the expenditure of money to purchase speech is protected by the First Amendment and cannot be limited, the Court then identified certain kinds of expenditures that categorically cannot be restricted. This required the Court to draw a crucial distinction between direct expenditures to fund speech and contributions to candidates and their campaigns. Direct expenditures to fund speech, when made independently of a candidate, are afforded absolute constitutional protection and cannot be limited. Ever since Buckley, expenditures for speech made independently of a politician have been afforded near absolute First Amendment protection.
The Court has expanded this principle over the decades. First, in FEC v. National Conservative Political Action Committee (1985), the Court ruled that government cannot restrict independent expenditures by political action committees. A year later, in Massachusetts Citizens for Life v. FEC (1986), the Court ruled that an incorporated non-profit association of only individuals who only made donations to the group may make unlimited independent expenditures to fund electoral speech. The Court reasoned that if person A has a First Amendment right to spend his unlimited resources to fund electoral speech and person B has a First Amendment right to spend her unlimited resources to fund electoral speech, then A and B have a corollary First Amendment right to associate in an incorporated ideological organization and exercise their First Amendment rights together. In Colorado Republican Federal Campaign Committee v. FEC (1996), the Court ruled that political parties have a First Amendment right to make unlimited independent expenditures to support their nominees. And in Citizens United v. FEC (2010), the Court ruled that corporations of all kinds can make unlimited independent expenditures to advocate the election or defeat of candidates.
Thus, Buckley's recognition of independent expenditures as a sacrosanct exercise of First Amendment rights has endured and blossomed in a wide array of directions protecting Americans' free speech rights.
- Government can limit contributions to politicians' campaigns solely for the purpose of preventing corruption or the appearance of corruption.
To be sure, Buckley countenanced certain limits on money in politics. Buckley ruled that government can limit—within reason—a person's contributions to a politician's campaign. Buckley reasoned that government could limit contributions to politicians for only one compelling reason: to prevent quid pro quo corruption of politicians, or the appearance of such corruption. Because American campaigns rely on contributions from people, and politicians solicit contributors to fund their political ambitions, Buckley reasoned that campaign contributions have the potential to buy—or divert—the loyalty of politicians from their principles and constituents to their contributors. Therefore, Buckley held that contributions of money or property to candidates could be limited to certain dollar limits. Buckley includes in the category of contributions expenditures made by a third party "in coordination with" a candidate or campaign.
Applying the anti-corruption principle, the Court has struck restrictions on some contribution limits on the basis that they do not prevent quid pro quo corruption of politicians. Buckley struck limits on a candidate's contributions to his own campaign, because a candidate cannot corrupt himself. And the Court would later rebuke government efforts to effectively stifle campaign contributions by setting very low limits in Randall v. Sorrell (2006). The Court explained that limits on contributions to candidates must be reasonable—that is, sufficiently high—to permit effective association and extremely low limits are not tailored to preventing quid pro quo arrangements. The Court also struck limits on the number of campaigns to which an individual may contribute in McCutcheon v. FEC (2014), reasoning that a limit on the amount of money a person contributes to each politician is sufficient to prevent a corrupt exchange with each politician without resort to a limit on the number of politicians one can support.
The anti-corruption logic has been critically important—and cabining—to campaign finance policy over the past fifty years. Born from a hundred-year debate between labor and capital, efforts to restrict expenditures on political speech have always pursued objectives broader than quid pro quo corruption. For over a century some have attempted to restrict certain speakers and speech, especially those with greater resources, from speaking in an effort to "equalize" speech between business and labor, rich and poor, privileged and underprivileged. But the Buckley Court understood that, while such advocates might have in mind rich corporate capitalists, the effort to "level" speech would inevitably extend to speakers with great corporate resources like the New York Times and CBS News. There would be no limiting principle to distinguish between virtuous wealthy speakers versus bad ones. So, Buckley rejected any objective of equalizing speech between rich and poor speakers through the mechanism of limiting expenditures to disseminate speech.
Left only with the corruption justification, advocates of speech limits resorted to efforts to expand the definition of "corruption" to generalized influence in the democratic process and access to politicians. The Court, however, has rejected that effort. In McCutcheon v. FEC (2014), for example, the Court narrowed the definition to bribe-like exchanges between politicians and funders, and nothing broader. Some frustrated advocates have finally given up on that tactic and now candidly admit, in books like Plutocrats United (2016), that their true objective always has been to equalize speech and urge others to get on with a long-term effort to reverse Buckley's corruption principle.
- Government can regulate only a narrow band of speech content in the name of good government.
Finally, Buckley also left us with the limiting principle of "express advocacy." The Court ruled that when government imposes restrictions and regulatory burdens upon electoral speech in the name of preventing corruption, government must narrowly focus its regulations on speech that expressly advocates the election or defeat of candidates; government cannot extend its regulatory reach to a broad realm of issue speech. The Court reasoned that all political speech references politicians in the context of discussing issues and permitting government to restrict all issue speech would expand government power over virtually all political speech in democracy, a result the First Amendment prohibits. Therefore, the Court ruled campaign finance regulation must focus narrowly on speech that expressly exhorts voters to vote for or against candidates.
After Buckley, debates erupted over government's right to regulate implicit advocacy or issue speech that effectively exhorts listeners to vote. Speech censors won a major expansion of Buckley's express advocacy rule in McConnell v. FEC (2003), which upheld new concepts of "election-influencing" speech adopted by Congress in the Bipartisan Campaign Reform Act of 2003. But the expansion was short-lived. The Court revisited the breadth of speech subject to campaign finance regulation in Wisconsin Right to Life v. FEC (2007) and narrowed the realm of regulable speech again to messages that are subject to "no other reasonable interpretation" than as an exhortation to vote for or against a candidate. Messages susceptible to other reasonable interpretations cannot be restricted as campaign messages. Once again, Buckley was vindicated.
[* * *]
In sum, the First Amendment principles established by Buckley have proved durable. They cut through superficial arguments about money in politics, recognizing the inescapable relationship between resources and speech, and grounding campaign finance jurisprudence in a sound logical framework. No doubt the balance Buckley drew between free speech and government censorship was decidedly libertarian. And First Amendment advocates have found Buckley to be an ace for fifty years. So here's to another fifty years of citing 424 U.S. 1.
