"Life Without Buckley v. Valeo," by John Samples

"How the decision did and did not change the world."

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 John Samples, a former Vice President at the Cato Institute and currently a Member of Meta's Oversight Board:

In the late 1960s, the U.S. Congress began enacting campaign finance regulations. The reasons for those regulations are not hard to discern. In 1968, Eugene McCarthy, an anti-war challenger supported by a small number of large donors, effectively drove Lyndon Johnson from the presidency; a populist from the right did well, though short of securing the Democratic nomination. Richard Nixon narrowly defeated Hubert Humphrey by raising and spending what seemed to be, at the time, huge sums of money.

By limiting spending on campaigns, Congress sought to restrict competition and protect the political status quo. Spending limits would make it difficult to spend enough money to effectively challenge congressional incumbents. The equality of spending implicit in the presidential public financing scheme headed off a growing Republican advantage in presidential fundraising. And contribution limits further complicated challenging the status quo by making it harder to raise money.

Buckley v. Valeo considered how far election campaigns could be regulated and restrained under the First Amendment. As we know, the Buckley Court's answer was mixed: the government interest in preventing corruption or "the appearance of corruption" validated contribution limits. Public education fostered more speech, thereby educating the public. But the Court rejected spending limits as a limit on speech, and equality of spending as a justification for campaign finance regulation. The Court also upheld mandated disclosure of donors and donations.

What were the effects of Buckley? My answers to that question depend on two assumptions.

First, Congress could not simply mandate spending levels consistent with the preferences of incumbents. Whatever Congress did, the total spending was likely, in the end, to equal what could be raised by candidates and parties plus independent speakers and the media, who were granted an exemption. Total spending itself is likely a result of national wealth (which rises over time) and the intensity of political conflict. This "electoral equilibrium" would be affected only marginally by regulation or court decisions. Buckley might affect how money was spent on politics and election campaigns but not, in the longer run, how much would be spent. Second, discerning the effects of Buckley requires informed speculation about how the world might have been if Buckley had been different. Here I speculate on the effects of a more and a (much less) libertarian Buckley.

Our actual history indicates the least important parts of the decision were the Court's finding that public financing was constitutional. No significant candidate has used public financing since after then-candidate Barack Obama correctly concluded he could raise much more money privately for the 2008 campaign. It can be argued that the equality of spending required by the public presidential system helped Jimmy Carter pull out a victory in 1976, but that contest was so close that many factors could have made a difference. More generally, the constitutionality of public financing mattered in places like Berkeley, California and Burlington, Vermont; elsewhere, spending taxes on campaigns lacked majority support.

At the time, people worried that mandated disclosure would enable public officials to punish those who opposed their election. Such threats would then drive such donors from engaging in politics and elections. That did not happen that much, as far as I can tell from the public record.

But disclosure did empower efforts to stop disfavored spending, efforts fully protected by the First Amendment!

Mandated disclosure and the "appearance of corruption" rationale turned out to be a substitute for spending limits. Organized interests began loudly denouncing any significant donations by disfavored donors as corrupting the republic. These denunciations sought to shame and marginalize anyone spending money on disfavored speech. Over time, these denunciations became the primary means used by the "reform" faction to suppress the speech of their opponents. These calumnies have done their part in poisoning public discourse in the United States.

Did the regulations approved by Buckley protect the political status quo of 1968? In the two decades after Buckley, the nation elected presidents who deregulated major sectors of the economy, who cut taxes and modestly restrained federal spending, who declared that government was the problem rather than the solution to what ails the nation, and who admitted that the era of big government was over. Buckley did not preclude significant changes through elections or changes in the public mood toward activist government.

Perhaps a libertarian Buckley would have changed that history. One might argue that the major programs enacted by the New Deal and the Great Society—for example, Medicare or Social Security—might have been deeply reformed or privatized absent contribution limits. After all, both programs were on track to go bankrupt in the early 1980s. But, in 1981, Office of Management and Budget Director David Stockman was utterly defeated when he tried to make modest reforms to Social Security, and later House Ways and Means Chairman Dan Rostenkowski was chased by seniors in his district for proposing that beneficiaries pay for new benefits under Medicare. It is difficult to believe that unlimited contributions would have funded successful candidates seeking to seriously reform Social Security and Medicare in the 1980s.

But let's consider the other path not taken. What if Buckley had repudiated libertarians by validating spending limits justified by a concern for equality? Had Buckley so ruled, I believe Congress would have, within weeks, set spending and contribution limits just below the sums needed to effectively challenge incumbents as a way to lock in the electoral and partisan status quo. Would such limits on spending have precluded the Reagan presidential victory and the election of a Republican majority in the U.S. Senate?

In theory, the presidential public funding system gave both Reagan and Carter sufficient funds to run their campaigns, and the incumbent had no great advantage in name recognition over the former governor and movie star. Limits on Reagan's spending were unlikely to overcome Carter's weaknesses with the economy and foreign policy. On the other hand, limits on spending might have precluded a GOP Senate majority in 1981. Republican candidates might have lost narrow races in Idaho, Wisconsin, North Carolina, and Georgia. If so, Senate Democrats would have enjoyed a 51-49 advantage going into the 97th Congress. That change from what actually happened would have complicated the enactment of Reagan's tax and budget proposals.

It is also tempting to conclude that limits on campaign spending would have precluded or at least delayed the Republican majority in the House of Representatives that arrived in 1994. But that change came almost twenty years after Buckley. Much might have happened in that period.

For example, a regime of tight spending limits might not persist. Such limits would create strong incentives to find ways to spend money outside the regulated system. For example, even under the contribution constraints authorized by Buckley, parties had over $80 million in soft money to spend supporting their candidates by 1991. Under a tighter regime of spending suppression, party soft money would have presumably increased faster than it did. The "electoral equilibrium" mentioned earlier would have asserted itself.

Now, let me consider an objection to my skepticism about the effects of Buckley. It is possible that a thoroughgoing affirmation of spending limits for reasons of equality (or other reasons) would have fostered a norm that effectively stigmatized outside spending. Draconian spending limits might have worked, for a while at least. American government and politics after 1980 might have turned out to be more like the pre-1968 world than what we experienced. Perhaps—but I doubt it. Spending reflected the failures, primarily economic, of the liberal establishment. Suppressing spending would not have precluded, again over the longer run, the changes fostered by those failures.

Despite my modest skepticism about the effects of Buckley, I remain fond of the decision. Buckley was a child of its time, and the culture of its time favored collective control of much of life, perhaps including political speech. Buckley was countercultural. Its justices recognized that, rhetoric aside, spending money did equal freedom of speech. And the decision was libertarian enough to permit needed change at a crucial time in American history. All things considered, we could not really have hoped for more.