"James L. Buckley: The Man and His Principles," by Roger Pilon

A friend profiles Buckley himself, a public servant who spent his life defending constitutional first principles.

From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Roger Pilon, senior fellow in constitutional studies at the Cato Institute, founding director emeritus of Cato's Robert A. Levy Center for Constitutional Studies, and founding publisher emeritus of the Cato Supreme Court Review:

Ten years ago, the Brooklyn Law School held a symposium to commemorate the 40th anniversary of Buckley v. Valeo, featuring Dean Nicholas W. Allard, the ACLU's legendary Ira Glasser, and the eponymous James L. Buckley himself, then a senior judge on the D.C. Circuit. Expressing his delight at being part of the commemoration, Judge Buckley noted that the decision had assured him "a measure of immortality." Immortality indeed! Here we are again, a decade later and half a century after Buckley was decided, and we're still talking about the case.

Let me open on a personal note. My wife Juliana and I have had the good fortune to know Judge Buckley—or Jim, as he insisted, and as I will do hereinafter to avoid confusing the man with the case. Especially after he moved back to Washington late in life, near us, we were often able to dine together. Long before that, however, as a Columbia University undergraduate, I was a volunteer in his improbable 1970 campaign to become New York's junior senator, running as a third-party candidate on the Conservative Party line.

But it was not until 1976, when Juliana and I were completing our doctorates at the University of Chicago, that we would first meet the senator at the storied Ford v. Reagan Republican National Convention, where we were alternate delegates pledged to Reagan. Two years earlier, you see, Jim had inserted in the Congressional Record Juliana's New Guard article, "Against Ideology," which drew from Alexander Solzhenitsyn's Gulag Archipelago. When we happened upon Jim at the convention and introduced ourselves, he responded, "Oh so you're Juliana Pilon!" Ever the epitome of modesty, that was Jim.

On a professional note, Jim had an abiding affection for the Cato Institute, and we for him, not least because Cato's co-founder and long-time president, Ed Crane, then a Libertarian Party officer, gave testimony in the case because the party was one of the Buckley plaintiffs. But that was only the beginning of Cato's long relationship with Jim. Often we would have him over to join our ongoing efforts to roll back the many limits on political speech that remained after Buckley—and, indeed, have continued to accumulate through the years. It was thus no accident that he came over from the court to swear in Bradley Smith as a member of the Federal Election Commission, which Brad would go on to chair. And later on, when Jim turned his attention to Congress's spending practices, writing his 2014 Saving Congress from Itself: Emancipating the States & Empowering Their People, we worked closely with him to promote the book, about which more anon.

Turning now to the principles that animated Jim, particularly in the campaign finance context, I would note first how rare it is that an elected incumbent would take the position that Jim consistently took: namely, that in the main, except for narrowly focused regulation against quid pro quo corruption, campaign funding and spending should be free from regulation, and for two main reasons. First, as he wrote in that Brooklyn Law symposium, flawed as the Buckley Court's opinion was in upholding a $1,000 ceiling for individual campaign contributions in order to limit corruption or its appearance, we should nevertheless celebrate the case because the Court held, critically, "that campaign spending is constitutionally protected speech." And second, not only was most of the campaign finance legislation that came to the Senate floor unconstitutional, but it was also bad public policy.

Concerning the then-$1,000 ceiling for individual campaign contributions, I cannot resist recounting Senate testimony I once gave: To prevent corruption, I noted, the implication seems to be that once a contribution exceeds $1,000, the presumption of innocence disappears. "Or is it, rather, slightly different: that above that figure a presumption of corruption arises—the idea being that $1,000 is enough to corrupt a member of, or candidate for, Congress? Who on this committee would be bought so cheaply? What then is the right figure? Anyone?" There were no responses, save for the twinkle in Chairman Mitch McConnell's eye.

In that Brooklyn Law symposium, after listing just a few of the strange bedfellows who joined as Buckley plaintiffs, Jim noted that what they had in common was that they were all outsiders. Citing Senator Eugene McCarthy's 1968 primary challenge to President Lyndon Johnson and his own 1970 challenge to two major party Senate candidates—both contests occurring before enactment of the Federal Campaign Finance Reform Acts of 1971 and 1974 (FECA)—Jim saw clearly what an uphill battle such outsiders faced against incumbents with name recognition, the franking privilege, media access, a history of constituent service, and more. Just to get their campaigns started—to say nothing of the country's need for healthy political competition—outside candidates needed not only money but big money, especially from major donors, precisely what campaign finance "reform" denied them.

No wonder that such reforms are called "incumbent protection acts." As many have long noted, there is nothing an incumbent fears more than a well-financed challenger. Thus the dirty little secret of campaign finance reform: as Jim put it in his symposium remarks, "the 1974 Act would effectively squeeze independent voices and reform movements out of the political process by making it even more difficult than it already was to raise effective challenges to the political status quo." Thus too, ironically, in the name of preventing corruption, incumbents vote to insulate themselves from the competition that, as in the commercial world, would otherwise help to ward off corruption far more effectively than FECA has done.

What FECA and its progeny have accomplished, however, was well-stated by Jim:

In the wake of the Buckley decision, we are left with a package of federal election laws and regulations that have distorted virtually every aspect of the election process. The 1974 amendments to the Federal Election Campaign Act were supposed to deemphasize the role of money in federal elections. Instead, the limit on individual contributions has made the search for money a candidate's central preoccupation.

In fact:

federal campaign regulations have virtually driven grassroots action from the political scene. The rules have become too complex; the costs of a misstep too great. There is general agreement that the current law governing federal campaigns is worse than unsatisfactory. The answer, however, is not to place further restrictions on the freedom of speech, as so many continue to urge, but rather to reexamine the premises on which the existing ones have been based…Only then will the Buckley v. Valeo plaintiffs be able to claim a total victory.

Yet far from reexamining such legislation's premises, proponents of campaign finance restrictions have only drilled down more deeply since Buckley. In fact, as I was writing here, The Atlantic offered up an exquisite example, authored by a young, impeccably credentialed Stanford Law School fellow, one Duncan Hosie. Arguing that "a judiciary, long conceptualized as a check on legislative excess, is now defined by its own excess against legislative [change]," all of which has led to congressional sclerosis and to "curbing a competing source of constitutional interpretation." Thus, in the campaign finance domain, congressional candidates over the past four decades have been preoccupied with fundraising, to the detriment of their congressional duties, not because the Supreme Court has failed to limit congressional interference with electoral funding freedom but, to the contrary, because it has interfered with Congress's efforts to more tightly regulate such funding.

As Hosie continues, campaign-finance decisions like Citizens United (2010), McCutcheon (2014), and others less well-known "have dismantled Congress's two most significant efforts to regulate private money in public elections, eroding the safeguards that protect elections as conduits of public opinion." Indeed, "the Court could go further this term," he warns, "in a case brought by Republicans seeking to lift limits on how much parties may spend in coordination with candidates." It is crucial to see, therefore, that the campaign finance restrictions of the past four decades and more are part of a much larger effort going back to the New Deal constitutional revolution, to the democratization of the Constitution, and to empowering congressional incumbents to further insulate themselves against outside challengers. Thus, "it is a category error," Hosie continues,

to treat these decisions as isolated strikes against discrete statutes. The laws in question reflect something more profound: Congress mediating public constitutional values, drawing on sustained exchange with the people, and articulating constitutional meaning through debate and enactment. In short, they are instances of congressional constitutionalism. By overriding these laws, the Court rejects this rival interpreter's long-recognized authority to give form to the nation's evolving and elusive constitutional aspirations in law. (emphasis added.)

There, in a nutshell, is yet another version of a "living Constitution," as if the document were an empty vessel to be filled by transient majorities. "Congress's constitutionalism," Hosie writes, "carries advantages over the Court's. Most important, it remains tethered to the public." True, but shouldn't "constitutionalism," other than in a pure democracy, be tethered to the Constitution? Thus does Hosie subscribe to the post-New Deal democratized Constitution.

Make no mistake, this is nothing less than a rejection of Marbury v. Madison's central constitutional dictum: "It is emphatically the province and duty of the judicial department to say what the law is." Thus did Chief Justice Marshall secure judicial review, the Supreme Court's power to interpret the Constitution and strike down laws, even from Congress, that conflict with the document, solidifying the judiciary as a coequal branch of government with a unique role to play in our system of divided and separated powers.

Jim Buckley needed no instruction on the proper role of the courts. In each of the three branches of the federal government in which he served, he took an oath, in its different forms, to uphold the Constitution, not the version the New Deal Court crafted under pressure from Franklin Roosevelt. And he continued to serve when most others his age would go quietly into retirement.

Thus, his final service to the nation—which began when he joined the Navy in World War II to serve in the Pacific—was to offer the insights he had gained over a lifetime by writing the final of his four books, Saving Congress from Itself: Emancipating the States & Empowering Their People. In it, he demonstrated, both theoretically and factually, how today's "cooperative federalism," where states work with the federal government to centralize power in Washington, differs fundamentally from the Constitution's "competitive federalism," which disciplines both levels of government to secure the liberties of the people. So dedicated was Jim to America's first principles that, even in his 90s, he continued to defend them in public forums. Thus, the man and his principles.