The Volokh Conspiracy
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Buckley v. Valeo is Not What Ails American Democracy
Those who blame Buckley for our current problems are wrong to do so. A contrary decision would have made things worse.
This post is my contribution to the Institute for Free Speech symposium on the 50th anniversary of Buckley v. Valeo, which is jointly published by IFS and the Volokh Conspiracy blog:
This year marks the fiftieth anniversary of Buckley v. Valeo, the 1976 ruling in which the Supreme Court held that federal laws limiting private parties' expenditures on campaign-related speech violate the First Amendment. Critics blame Buckley for a host of current problems in our political system, such as the disproportionate political influence of wealthy people and the spread of misinformation. Our current political situation does indeed have serious flaws. But a contrary decision would not have averted these developments and would have made things much worse in many respects.
Had the Court accepted the fashionable argument that "money isn't speech," that decision would have gravely imperiled freedom of speech and other constitutional rights. Similar dangers would have arisen if the Court had maintained the rule that campaign-related free speech rights do not apply to corporations, which was eventually rejected in in subsequent case of Citizens United v. Federal Election Commission (2010). Contrary decisions in these cases would also have exacerbated rather than ameliorated the problems of voter ignorance and misinformation. Nor would they have significantly reduced political inequality. A contrary decision would have exacerbated—rather than alleviated—the problems of voter ignorance and misinformation, while doing little to reduce political inequality.
Critics of Buckley, Citizens United, and other rulings protecting expenditures on campaign speech love to emphasize that "money isn't speech." That is true enough in a literal sense. But the exercise of almost every constitutional right depends on the use of resources for which monetary compensation is paid. Consider, for example, the right to use contraceptives upheld by the Supreme Court in Griswold v. Connecticut. Just as money isn't speech, money isn't contraception. But a law banning or severely restricting the use of money to purchase contraceptives would clearly violate the constitutional right upheld in Griswold. Otherwise, the government could effectively gut that right simply by barring or severely restricting the purchase of birth control devices.
The same is true of most other constitutional rights. For example, money isn't religion. But a law banning or restricting the use of money to fund religious institutions and services obviously violates the Free Exercise Clause of the First Amendment.
Moreover, the vindication of constitutional rights often requires the filing of lawsuits, which almost always cost money. A law barring the expenditure of funds on such litigation clearly violates the Constitution, even though supporters of such legislation could inveigh that "money isn't litigation."
Consider the Trump Administration's targeting of law firms that engage in constitutional litigation against his policies. Courts have repeatedly ruled against these efforts on First Amendment grounds. But under the "money isn't speech" approach, the administration could instead attack those firms and others on the basis that "money isn't litigation." Thus, litigation protecting constitutional rights could be gutted by laws or regulations barring or restricting the use of money to fund it.
In the Citizens United case, the Supreme Court rightly ruled that Buckley's principles apply to speech by corporations and unions, as well as to that by individuals. Critics argue that this was wrong because corporations are not people, but "state-created" entities whose rights the government can define as it sees fit.
If applied consistently, this logic would destroy freedom of the press. After all, most major media entities are corporations or owned by them. On this view, the government would be free to censor the New York Times, Fox News, CNN, and so on. The same applies to speech on social media sites organized as corporations or owned by them, such as Twitter/X, Facebook, Bluesky, and others.
The same reasoning applies not only to corporate free speech rights, but to all other constitutional rights exercised through the use of corporate resources. If "state-created" entities don't have free speech rights, they don't have any other constitutional rights either. The supposed power to define the rights of state-created entities cannot be limited to free speech rights. Thus, government would not be bound by the Fourth Amendment in searching corporate property (including employee offices). It could take corporate property without paying compensation because the Takings Clause of the Fifth Amendment would no longer apply. It could forbid religious services on corporate property (including that owned by churches which are organized as nonprofit corporations). And so on.
Moreover, corporations are not the only "state-created" entities out there. Universities, private schools, charities, religious institutions, political parties, partnerships, sole proprietorships, and many other private organizations all have official definitions under state and federal law. And all or most have special government-created privileges and obligations of various kinds. If corporations are state-created entities that can be denied constitutional rights, the same is true of a vast range of other private organizations.
Politicians could suppress opposition speech and activism by such groups by enacting laws or regulations denying them their legal organizational status unless they abjure speech disfavored by those in power. Even if you trust political leaders of your own preferred party with such power, I suspect you would not have similar confidence in those of the opposing party. My own view is that none of them can be trusted with it.
In recent years, some critics of Buckley and Citizens United have blamed these rulings for the rise of misinformation and exploitation of voter ignorance. They argue that wealthy people such as Trump and Twitter/X owner Elon Musk have exploited these decisions to spread lies and deceptions, influencing electoral outcomes. I agree that political ignorance and misinformation are serious problems, and I have spent much of my career analyzing these dangers. I also agree that Trump and his allies have extensively exploited voter ignorance, in the process, proving that ignorance is an even more serious problem than I previously believed (though the more general problem of voter ignorance long predates the rise of Trump).
But government restrictions on speech financed by wealthy people or corporations are not a good solution to these problems and would likely make them worse. Evidence from around the world shows that right-wing populist movements like Trump's, and the misinformation they promote, disproportionately draw their support from lesser-educated and poorer voters. That is a key reason why we increasingly have a "diploma gap" in US elections, and why the GOP is now the party that tends to benefit from higher voter turnout. Wealth and education are not the same, but the two are highly correlated. Some wealthy influencers and donors do indeed spread misinformation and bogus conspiracy theories. Musk is a prominent example. But, on average, affluence is inversely correlated with susceptibility to such tropes.
Regulations restricting the speech expenditures of wealthy and better-educated people will actually further empower the lesser-educated and more ignorant elements of the electorate, which are also the ones most susceptible to misinformation. Nor are such regulations likely to significantly impede the spread of that misinformation. Fundamentally, the demand for misinformation is a much more serious danger than the supply.
Millions of voters are largely ignorant about government and public policy and many also act like biased "political fans" in their evaluation of such political knowledge as they do learn, eagerly lapping up anything that confirms their preexisting biases. So long as that remains the case, there will be a large market for political deception and misinformation. And perverse incentives arising from the low likelihood that any one vote will make a difference make it rational for most voters to be ignorant about political issues. Bad incentives also ensure those who do learn a lot will often be biased "fans" rather than truth-seekers.
Even if individual wealthy people and corporations are limited in their ability to exploit that ignorance and bias, others will fill the void. Likely candidates include media organizations, social media "influencers," unscrupulous politicians (Trump is just a particularly egregious example), activist groups, and more.
In theory, the government could address this problem by comprehensively suppressing misinformation, regardless of the source. But in addition to virtually destroying freedom of speech, that practice would give the government nearly unconstrained power to suppress opposition. It is unlikely that government would use that power to target misinformation evenhandedly. Rather, it would likely weaponize it to crush opposition speech (whether misleading or not), while continuing to spread its own misinformation and lies. Historically, governments have themselves been major sources of misinformation and deception. A state with broad powers to censor can spread its lies more effectively than otherwise.
In my book Democracy and Political Ignorance: Why Smaller Government is Smarter and my more recent chapter on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," I assess various strategies for mitigating the harm caused by political ignorance and bias, including some that have genuine promise. Here, I will merely emphasize that government control of campaign speech is unlikely to help and could well make things much worse.
Finally, there is the argument that spending on campaign speech must be restricted because it is unjust that wealthy people might otherwise exercise greater political influence than others. Wealth can indeed be a source of political inequality. But it is far from the only such source, and by no means the most egregious.
Celebrities, skilled demagogues, "influencers," politicians, and others also have vastly more political influence than the average voter. When Trump first ran for president in 2016, he actually spent little of his own money. His success was in large part a result of his vast preexisting celebrity. Even a law professor who writes for a prominent blog—like the present author—may exercise much more influence than the average citizen, even if far less than a celebrity.
Many of these other sources of influence are far more unequally distributed than wealth. We have a lot fewer celebrities than people wealthy enough to pay for a television or online ad campaign.
Restricting campaign spending is likely to accentuate the potency of these other, more unequally distributed sources of influence. It will become more difficult for relatively unknown candidates to successfully challenge celebrities and incumbent politicians.
Nor is the influence arising from these other resources somehow better or more meritorious than that arising from wealth. Celebrity status, skill at demagoguery, and being an "influencer" are far from being correlated with merit, good judgment on policy issues, or even basic human decency. Again, Trump is just one particularly egregious example of the lack of correlation between the former list of traits and the latter.
Even if there were some objective way to determine how much influence a given person or group deserves to have over our political discourse, it is highly unlikely that real-world government would identify that rule and scrupulously implement it. Real-world politicians and bureaucrats are far more likely to use that power to strengthen their own hand against potential opposition. The case for freedom of speech rests on the proposition that the state cannot be trusted to make such determinations. As the Buckley Court rightly concluded, "[t]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
