"Celebrating Buckley v. Valeo: A Landmark of Political Freedom," by Joel M. Gora

"An original Buckley litigator shares the inside story of one of America’s most important political speech victories."

From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Prof. Joel M. Gora (Brooklyn Law School), who was one of the lawyers who argued Buckley (on behalf of the ACLU) before the Supreme Court:

It is an honor to participate in this celebration of the 50th anniversary of the landmark case of Buckley v. Valeo. I have been privileged to spend my entire professional career working in the area of constitutional law, and especially the protections of the First Amendment. As a full-time lawyer at the American Civil Liberties Union for a decade, and then as a volunteer lawyer for many years after, I started my teaching career at Brooklyn Law School. I estimate that I have worked on more than 100 Supreme Court cases, the majority of them dealing with rights under the First Amendment. Of all those cases, the one I am proudest to have worked on, and the one I think has had the greatest positive impact on political freedom, is the Buckley case decided by the Supreme Court on January 30, 1976. It was a watershed moment for the Court, and for the country.

Years later, when politicians sought to pass increasingly restrictive federal campaign finance laws, a Democratic leader was asked about whether they posed a problem under the First Amendment. His response was, in effect, you can either have free speech or fair and healthy elections, but you can't have both. My response was that precisely the opposite was true: You can't have one without the other.

Free speech is not the enemy of democracy; free speech is the engine of democracy. It is the most powerful political tool we have to control the government. To allow the government to control free speech is to take away that most powerful tool. That was what was at stake in the Buckley case. And the Court did an outstanding job, but not a perfect one, of protecting that vital tool.

The Origin Story: Five Years Earlier

In Buckley, the Court had to deal with the most draconian federal restrictions on political speech and association since perhaps the sedition laws of 1798 or those of 1917 and 1918. But Buckley was not the first modern case to deal with those issues. That honor belongs to a case that arose in 1972, four years before Buckley, when Congress had passed a long-sought campaign finance law known as the Federal Election Campaign Act of 1971. That law used two methods to try to curb spending. One was enhanced and intensified disclosure of any federal political contributions of more than $100. The other was a Rube Goldberg device to try to limit political media communication expenditures. The rationale for that device was based on a best-selling 1969 book called "The Selling of the President, 1968," which argued that the campaigns that year were selling candidates like corn flakes with excessive, especially television, advertising. The solution was almost too complex to describe in this essay. The law set specific numerical limits on the amount that candidates for different federal offices could spend during their campaigns.

Candidates had to certify to the news media running that political ad that it would not cause the candidate to exceed the limit. But independent speakers had to obtain certification from any candidate who benefited from their media expenditure. So, if you wanted to run an ad supporting a candidate, you had to get approval from that candidate, and if you wanted to run an ad opposing a candidate, you had to get approval from that candidate's opponent. In effect, candidates were given a veto over speech, helping their cause. And the media entity could not accept the ad without those certifications, or it would face criminal prosecution.

The first enforcement target under this new and bizarre law was not some well-heeled individual or powerful organization. It was a small group of anti-war activists who had run a two-page ad in the New York Times advocating the impeachment of President Richard Nixon for committing war crimes by bombing Cambodia and praising a handful of Members of Congress who had voted in favor of the impeachment resolution. You would have thought they would get a medal for their civic participation. Instead they got a visit from federal agents who wanted to know who they were, had they formed a political committee, who were their officers and contributors, and did they know that it violated the law by running the ad without complying with those requirements or presenting the New York Times with certifications that the ad would not cause Senator George McGovern and any other of Nixon's opponents, or any of the opponents of the several Members praised in the ad, to exceed their respective media communications limits. Hard to believe, isn't it? Those would have been Herculean tasks and utterly impossible. All for running an ad criticizing the President of the United States.

And, indeed, the government did file suit against the group and obtained a federal district court injunction barring the group from doing this again without complying with the FECA. The group came to us at the ACLU, and we could hardly believe their story. But as we looked at the matter more closely, we realized that this new law was not reform; this was a stunning repression of political speech and association, and we represented those dissenters.

The government's theory was that it was an election year, that President Nixon was up for reelection, and that media ads criticizing or supporting him fell under the brand-new Federal Election Campaign Act. We were stunned. The idea that you could be punished and prohibited by the government for public criticism of the President of the United States seemed inconsistent with everything we understood about the First Amendment: that it was designed to encourage criticism of government, and not to stifle it. And, indeed, we were able to persuade the courts that if groups were not partisan but issue-oriented, they should be allowed to engage in this speech without prior restraint or penalty. See United States v. National Committee for Impeachment (2d Cir. 1972); American Civil Liberties Union v. Jennings (D.D.C. 1973). And so, we breathed a sigh of relief.

In the Wake of Watergate

But then, around the same time in the early 1970s, Watergate happened. One issue in Watergate was Republican campaign finance irregularities, even though most of those donations were either already illegal or subject to disclosure. Spurred by those reports and President Nixon's resignation, Congress then passed the 1974 Amendments to the Federal Election Campaign Act, which enacted numerous new restrictions and prohibitions on campaign funding.

These amendments were what gave rise to the landmark Buckley case. We would challenge these massive new restrictions because they limited how much candidates could spend on their campaigns and how much support they could get from their adherents. They limited how much independent groups could spend to speak about candidates. They imposed broad, burdensome disclosure requirements on anyone who spoke publicly about political or electoral issues. And they enacted a new, broader, and more burdensome disclosure regime targeting nonpartisan issue groups that put out public information about political candidates. They provided for the first time public funding for Presidential candidates, but, arguably, were structured to favor the two major parties, Republicans and Democrats, and to limit public funding for candidates with focused regional or ideological appeal, like liberal Senator Eugene McCarthy.

To enforce all of this, the law created a powerful agency, the Federal Election Commission, the members of which were appointed by the members of Congress. It was like putting the fox in charge of guarding the chicken coop.

Most people hailed the new law and thought it would address all the problems of money in politics. But fortunately, not everyone thought that these changes were so great. Some people thought the restrictions on campaign giving and spending violated the very core of the First Amendment protections of free speech as the engine of democracy. And they thought the law was both a First Amendment disaster and an Incumbents Protection Act to boot.

The Landmark Lawsuit Is Launched

And so we organized a "strange bedfellows" coalition to challenge these restrictions on political freedom. It was led by Senator James L. Buckley, a conservative Republican, and Senator Eugene McCarthy, a liberal Democrat. The other members of the hearty band were the following groups and individuals on the right and left: Republican Congressman William Steiger, the liberal General Motors heir Stewart Mott, the Committee for a Constitutional Presidency – McCarthy '76, Conservative Party of the State of New York, Libertarian Party, Mississippi Republican Party, New York Civil Liberties Union, Inc., American Conservative Union, Conservative Victory Fund, Human Events, Inc.

The two Senators were perfect poster people for the harms to democracy the law would cause. They had each achieved stunning political successes by raising large contributions of seed money, now prohibited by the law, from early supporters and being able to spend what they raised to communicate their message. Senator Buckley became the first third-party candidate to be elected to the Senate in New York.McCarthy had forced a sitting President, Lyndon Johnson, to withdraw from the 1968 race after McCarthy's surprisingly strong showing in the New Hampshire primary, where he campaigned against the War in Vietnam.

Both Senators claimed that, under the new severe limits on contributions and expenditures, they would not have accomplished their unprecedented political feats of challenging the establishment and the status quo. The strange bedfellows coalition members disagreed on a wide variety of issues, but they shared a common cause that, if not challenged, the new FECA would become the death knell of democracy. And ultimately, the Supreme Court would agree on many of their core arguments.

We filed the omnibus lawsuit against the FECA Amendments on January 2, 1975, the day the new law went into effect. The law contained a provision mandating fast-track judicial review of any Constitutional issues. After extensive discovery, the U.S. Court of Appeals for the District of Columbia Circuit heard the case en banc in the ceremonial courtroom with all members sitting. We had worked very hard to make our factual and legal case that the law was systematically unconstitutional. But the tenor of most of the judges' questions was quite skeptical of our challengers' argument, and many of them seemed willing to defer to the claimed government need for the restrictions. We received, shall we say, a "hostile audience" reception.

Representing the ACLU position, I argued against the disclosure provisions as to parties and candidates. The claim was that they were too wide and deep. It was ridiculous to think that anyone could buy a Member of Congress for an annual $110 contribution. It was also ridiculous to think that you needed to have full disclosure of the tiniest political funding by groups like the Socialist Workers Party.

As to the new provision that was targeted at non-partisan groups like the ACLU for extreme and burdensome disclosure of their small contributors, we argued that the First Amendment so clearly required the fullest and freest debate from as many possible sources on politics and government. We claimed that this new provision to get the ACLU or the NRA and other groups that ranked and rated these politicians was a transparent effort to shut them up, or at least make it burdensome and threatening to their members to comply with the law and try to exercise their First Amendment rights.

The case was argued in the appellate court in June and decided in August. Not surprisingly, the appeals court, with a few dissents, upheld all of the major new provisions of the law that we challenged. Except one. The one targeting enhanced disclosure at groups that rated officials, such as the ACLU, was struck down unanimously as a violation of freedom of speech and association.

It was like a switch had been turned, and all of the deference to the Congress that infused the majority opinion upholding everything else had been turned into strict scrutiny of interferences with freedom of speech and association. I'd like to think it was my brilliant advocacy. But I think the real reason was that the provision was a transparent attempt to deter, intimidate, and silence those groups that ranked and rated the performance of members of Congress. And the government never appealed its loss on that issue to the Supreme Court.

So, the battle in the Supreme Court on all the other issues loomed. We immediately appealed to the Court, and the justices set the argument on an expedited schedule for early November 1975, since the 1976 federal elections were already heating up and people would need to know which of the campaign finance rules and restrictions would be invalidated, if any. Understanding the grave national significance of the case, the Court set an entire day for argument, an almost unprecedented procedure. The argument had all the earmarks of a major national event. I was privileged to argue the part of the case dealing with the disclosure requirements on candidates, parties, and independent groups, arguing that they violated freedom of speech and association.

When the two-hour morning session was over, and we went to the Court cafeteria for lunch, we were almost giddy. The reason was that during the morning argument, especially on the contribution and expenditure limits issues, for the first time we had the feeling that we were finally getting a fair hearing. We felt that a Court was finally taking our arguments seriously, and questioning the government's arguments just as seriously, and that maybe we had a chance to prevail. The feeling continued after the second two-hour session, especially on the issue of the set-up of the Commission, though not so much on the public financing issues. When we repaired to Stewart Mott's townhouse across the street from the Supreme Court building for a celebratory reception, we thought we had something to celebrate.

Of course, the decision came out as a sort of split decision, a bit like a Goldilocks approach, if not a Solomonic one. Spending limits bad, contribution limits good.

Disclosure good, but not allowed for independent speech unless there is express advocacy for a candidate's election or defeat or for controversial minor parties like the Socialist Workers Party. (That latter point resulted in a huge 1982 Supreme Court victory in Brown v. Socialist Workers '74 Campaign Committee (1982) which the ACLU handled.)

The Court upheld the public financing system, despite our arguments that it was wrong to have government finance campaigns which were designed to test and challenge the government. But the Court also struck down the method of appointment of the Federal Election Commissioners on the ground that, given the major grants of power to that agency over our political life, the constitutional appointment process of nomination by the President and confirmation by the Senate had to be scrupulously followed.

Despite the compromise outcomes, I think that the core of the opinion was the striking down of limits on campaign and political spending. Those really cut to the heart of the First Amendment, and most jeopardized the crucial combination of political freedom rights enshrined in that sparkplug provision. And the heart of the Court's reasoning was adopted by a 7-1 vote. (It would have clearly been 8-1 if Justice William O. Douglas had not been pressured to resign from the Court due to his health. His views were ironclad against these restraints. He was even way ahead of his time on Citizens United, having written in a 1957 labor union case that the First Amendment protects the right of every group—corporate or labor—to speak out on candidates and issues.)

The two principles that the Court relied on in striking down the expenditure limits were particularly clear in announcing that the government should be the least trusted when it seeks to control political speech. First, the Court said there could be no levelling of political speech to equalize voices: "[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, which was designed 'to secure "the widest possible dissemination of information from diverse and antagonistic sources,"' and '"to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."'"

Second, and equally important, government cannot have the power to control the quality or quantity of political speech: "The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people ­individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign." These principles are why free speech rights are so priceless and their vindication so essential to the core of our liberty and democracy. Especially when you consider who is in charge of the government today.

The result of Buckley's landmark ruling was that, for the first time, the Supreme Court had declared that campaign finance limits violated First Amendment rights. It was a victory for freedom of speech and freedom of association, and it was anchored in the bedrock principle that the remedy for bad or difficult or problematic speech is more speech, not enforced silence.

But it was not a total victory. While the Court struck down limits on political expenditures as unjustified restraints on core First Amendment values, it upheld limitations on contributions to candidates, because of the concern that they might lead to corruption or the appearance of corruption. That split judicial decision would lead to many of the problems that have affected the campaign finance system for the five decades since.

Despite the fact that it was a historic but not complete victory for free speech, for 50 years it has provided the Constitutional framework for the law governing the financing of our politics, and the doctrinal, principled platform for the more recent Citizens United decision, which has been as controversial—probably more so—than Buckley. Both decisions have been harshly attacked. But I think their core principle, that the people, not the government, get to decide how much free speech they want and need in order to challenge the government, remains an essential foundation of our democracy.

Fifty Years of Buckley Rules

Having discussed the five years that led up to and included the landmark Buckley decision, let me make a few brief observations about what has happened as a result of it. As indicated above, the decision was a compromise in many ways. Scholars have observed three eras of Supreme Court approaches since Buckley: the era of Buckley, the era of deference to Congress, and the era of skepticism toward Congress.

The Buckley regime of different treatment given to contributions and expenditures, quite mistakenly in my view, has distorted campaign finance ever since. The contribution/expenditure division has caused so many problems, primarily making it difficult for less wealthy or connected candidates to raise sufficient funds to mount a competitive campaign, driving funds away from parties and toward Super PACs, and allowing circumventions like soft money for issue advocacy both by parties (through 2002) and independent groups. It has generally pushed funding away from candidates and parties, and the two away from each other.

The rationale that this was acceptable because contributions were proxy speech, or "second-hand" speech as I call it, seems artificial and stilted. People give contributions to parties, candidates, and organizations they support because all of them "speak for me." Chief Justice Burger was right in the common-sense characterization that contributions and expenditures are two sides of the same First Amendment coin. The 2002 Bipartisan Campaign Reform Act's (BCRA) disastrous experiment to fix all that by outlawing party soft money and imposing further restrictions on issue advocacy only made it worse.

The first era lasted a quarter-century, from 1976 to 2000. Its hallmark was to follow the Buckley principles: expenditure limits tended to be struck down, contribution limits tended to be upheld, and disclosure limits were not directly challenged in this first campaign finance era. But the diversion of campaign funding, which Buckley effectively compelled, from candidates and parties to PACs and then also to parties and outside groups in the form of "soft money," money given outside of the FECA restrictions, so long as it was not used for express advocacy, was problematic. That led to charges that soft money was the ticket to an overnight stay in the Lincoln Bedroom of the White House. And that helped result in the long-sought objective of enacting the McCain-Feingold bill, aka the Bipartisan Campaign Reform Act in 2002.

The 2002 law at least finally raised the long-frozen $1,000 contribution limit to $2,000, and then adjusted that limit for future inflation. Congress increased the $100 contribution disclosure threshold to $200 in 1979, but if the $100 threshold was indexed for inflation since 1974, it would be nearly $600 today. Conversely, today's $200 threshold is the equivalent of $34 in 1976. So, would the Court have upheld a $34 threshold in 1976? The net effect was less freedom of speech and much more burdensome disclosure. Back then, your $100+ contribution was a needle in a haystack of paper records in folders in FEC filing cabinets. Today, small donations are online, available with a few keystrokes.

The new BCRA law produced a new "strange bedfellows" coalition, but one which was not David v. Goliath but Goliath v. Goliath. United to oppose the law were: The Republican Party, the AFL-CIO, the United States Chamber of Commerce, and the American Civil Liberties Union, as well as a number of other politicians, political groups, and issue advocacy organizations.

The resulting decision in McConnell v. Federal Election Commission (2003) was an unmitigated disaster. The Court, 5-4, upheld the major portions of the law: expanding the criminal prohibition on corporate and union political advocacy by broadening the content of the message that could be subject to criminal punishment, and banning the national political parties from almost all receipt or expenditure of "soft money." (There was one "minor"—pardon the pun—exception where the Court struck down a provision that barred people under 18 from making ANY federal contribution in any amount; presumably preventing parents from laundering contributions through their children's piggy banks.) This 2003 ruling capped a short, but intense three-year period, during which the Court upheld all the campaign finance restrictions before it, thus earning it the label the era of deference to the politicians writing the rules governing their own re-election. It was a nadir of the Court's handling of the clash between First Amendment rights and campaign finance controls.

Enter the Roberts Court in 2005. Everything started slowly, but then it changed more rapidly. The era of skepticism toward campaign finance restrictions had begun, as part of a larger and systemic protection of First Amendment rights, perhaps more protective than any predecessor Court. Since then, in seven significant cases, First Amendment challengers have run the table, winning all of those cases in opinions that have substantially revised the law, in the direction of greater political freedom and less government control over that freedom. And early indications suggest that the Court may again rule for the plaintiffs in the eighth such case in National Republican Senatorial Committee (NRSC) v. FEC.

Indeed, the Court seems to be engaging in a two-decades-long constitutional course correction. Of course, Citizens United is at the apex of that, putting front and center Buckley's imperative recognition that limiting political spending is limiting political speech and violates the core principles of the First Amendment and the right of individual choice and autonomy. The Court has also been nibbling and then biting away at the restrictions on contributions, narrowing the justifications for them and imposing stricter scrutiny on their rationales.

As indicated, the currently pending NRSC case is a potentially landmark case challenging the five-decade-old distinction between independent and coordinated spending with candidates and parties at the center of that discussion. Peter Wallison and I wrote in our book, "Better Parties, Better Government: A Realistic Program for Campaign Finance Reform," that eliminating the limitation on parties coordinating their expenditures with their candidates is not only good political science and public policy bringing about greater accountability, it is also a recognition of the freedom of speech and of association which the Court, ever since the NAACP cases seven decades ago, said were essential handmaidens of political freedom.

And Buckley, long criticized and even demonized, until Citizens United took its place in the rogues' gallery, has had a significant and long-overdue resurrection and restoration as a landmark precedent for political freedom.

Recall the two pillars of political freedom upon which Buckley placed the invalidation of governmental limits on the funding of political speech. First, the Court ruled, 7-1, that the First Amendment forbade the government from telling the people how much political speech they could have. That core principle was the pillar upon which the Citizens United case ruled that what Buckley declared was a fundamental right for people was good for corporations and unions and non-profit organizations as well, which were, after all, groups of people. That core and liberating principle goes all the way back to the great NAACP civil rights cases of the 1950s and 1960s, in which the Court clearly held that states could not interfere with the speech and association of those groups just because they were in the corporate form.

The other core principle of Buckley was that the government did not have the power to limit the political speech of some groups and individuals on the ground that others did not have the same resources. When Buckley came down, the language about no leveling of the First Amendment because of wealth disparities drew the most heat from the left, the campaign finance "reform" groups, and academics. They used it to portray the Court as an elitist institution that only favored the rich (a theme that has been revived against the Roberts Court). So, I took some Schadenfreude-esque delight at Justice Elena Kagan's recent 2024 opinion in Moody v. NetChoice (2024), involving whether states could compel social media platforms to include and not censor speakers or speech the platforms did not want or like, in order to ensure ideological viewpoint balance. Here's what Justice Kagan said, for a unanimous 9-0 Court, in holding such laws violated the First Amendment:

But a State may not interfere with private actors' speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. That is indeed, a fundamental aim of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from "tilt[ing] public debate in a preferred direction." Sorrell v. IMS. It is not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. And that is so even when those actors possess "enviable vehicle[s]" for expression. Hurley. In a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer. But it cannot prohibit speech to improve or better balance the speech market. On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana. That is why we have said in so many contexts that the government may not "restrict the speech of some elements of our society in order to enhance the relative voice of others." Buckley v. Valeo, 424 U. S. 1, 48–49 (1976) (per curiam). That unadorned interest is not "unrelated to the suppression of free expression," and the government may not pursue it consistent with the First Amendment.

Buckley v. Valeo, welcome to the canon.

What Does the Future Hold?

It is gratifying after all these years to see that the core victory we achieved in the Buckley case has withstood the test of time and been embraced by as respected a jurist as Justice Kagan. And that Citizens United, used as a bogeyman and punching bag for so long, has also gained some welcome respect.

But two things remain on the unfinished business list of the "strange bedfellows coalition" of 1976. First, the unjustified treatment of political contributions as "second-hand" speech, always struck me as a makeweight. As Chief Justice Burger put it in his partial dissent: giving and spending are two sides of the same First Amendment coin and should both be free of governmental control. Happily, in a number of the age of skepticism cases, the Roberts Court has chipped away at Buckley's upholding of low contribution limits. Hopefully, the current NRSC case involving the right of political parties to use funds in cooperation with the candidates they support will continue the pattern of skepticism and constitutional invalidation.

Which brings me, finally, to disclosure. This has a "this is where I came in" quality for me. I was the lawyer who argued the disclosure points in Buckley. And we won some major victories. The Circuit Court unanimously invalidated the special disclosure provision, which intentionally and destructively targeted issue groups like the ACLU. And the Supreme Court narrowed disclosure to apply only to those messages by independent groups and individuals which "expressly advocated" the election or defeat of a candidate, further liberating all the issue groups in the country, like the ACLU, to praise or criticize politicians for their stands on issues of concern to the particular group. And, equally important, the Court soon fashioned the so-called "Socialist Workers Party exemption" which mandated respect for the right of speech and association of highly controversial groups whose members, contributors, and associates might be significantly harmed if their support for such groups were publicly disclosed. And that rule vindicates the powerful protection of free speech rights for members of groups to gather together to pursue a common cause.

But, finally, the one disclosure loss that has always been a shame was the incredibly low threshold of contributions that the Court said had to be revealed. Under the provision at issue in Buckley, it was any contribution in excess of $100 in a calendar year that had to be disclosed. The Court said in Buckley that the threshold there was "indeed, low." But the Court did not invalidate it, preferring to defer to Congressional line-drawing. But, to borrow from a well-known phrase about obscenity, "I may not be able to define corruption caused by a campaign contribution, but I know it when I see it."

And, I assure you, a $225 contribution from yours truly to Senator Chuck Schumer is guaranteed not to compel him to take my call. As a result of the Supreme Court's default on this issue, at the federal, state, and local levels, tens of millions of small donor contributors have had their political and associational privacy invaded by burdensome and wholly unnecessary disclosure requirements. It is difficult to imagine an important, let alone compelling, purpose served by that massive breach of political privacy. To my mind, the only purpose served is a form of political voyeurism.

On the whole, though, the litigation efforts that began in the summer of 1972, continued through January 30, 1976, and have strengthened in the decades since then, have been essential to safeguard free political speech and association and thereby to safeguard democracy. It has been my honor to have been associated with those efforts, and I wish the best to those who will carry on the battle for free speech and democracy in the years to come.