Prof. Rick Hasen Criticizes Buckley v. Valeo

A nice counterpoint to the Buckley v. Valeo at 50 symposium that we're cohosting, from Prof. Rick Hasen (UCLA) at Slate; an excerpt, though the whole thing is worth reading:

Whether or not money is the root of all evil, the root of our current American oligarchy is a single Supreme Court case. That Supreme Court decision, Buckley v. Valeo, happens to turn 50 years old this week. It's Buckley, and not the often-excoriated 2010 Roberts court decision in Citizens United v. FEC, that created the conditions for the ultrawealthy to transform their vastly unequal economic power into lopsided political power, and for a billionaire like Elon Musk to contribute a staggering $291 million to help elect Republican candidates, including Donald Trump, in 2024. It is going to take a constitutional amendment or Supreme Court reform to make things right again—and there's a realistic chance that the current Supreme Court soon makes things worse, not better—but reform is unlikely because of the power of the very moneyed interests who benefit from the Buckley-created system….

The First Amendment concerns voiced by Buckley's challengers were real and the 1974 law was too draconian. In the middle of the Buckley litigation, an advertisement appeared in the Washington Post criticizing Ford for his pardon of Nixon and his choice of Nelson Rockefeller as vice president. As campaign finance expert Herbert Alexander described it, the political advertisement headlined "Would You Elect Ex-Congressman Ford President?" "urged Republicans, Democrats, and independents to oppose Ford and convince him to withdraw as a candidate." The ad cost $2,368.80, in violation of FECA's $1,000 individual spending limit. It was a technical violation of the law, but not a fair one. There was also a concern that challengers need more money than incumbents, who already had name recognition and other benefits like free publicity from being in office, and so limiting campaign contributions and spending was in the self-interests of the members of Congress who passed the law.

But whether or not parts of the 1974 FECA went too far, the court was wrong to say that independent spending could never corrupt or create the appearance of corruption, or that there could be no limit in spending by the ultrawealthy. And the results in recent years have been disastrous. As I explained last year at Slate, Musk is not alone among billionaires spending big money:

In the 2024 elections, the top six donors supporting or opposing federal candidates each reported contributing at least $100 million, according to data compiled by OpenSecrets. Those donors—Musk ($291.5 million), Timothy Mellon ($197 million), Miriam Adelson ($148.3 million), Richard and Elizabeth Uihlein ($143.5 million), Ken Griffin ($108.4 million), and Jeffrey and Janine Yass ($101.1 million)—all exclusively supported Donald Trump and other Republican candidates (with the exception of the Yasses, who gave a nominal $1,500 contribution on the Democratic side). The biggest donor on the liberal side was former New York City mayor and publisher Michael Bloomberg, who gave $64.3 million total, with all but $1 million going to the Democratic side….

Comments

[JoeFromtheBronx]

The First Amendment concerns voiced by Buckley's challengers were real and the 1974 law was too draconian.

Shades imho of the Citizens United litigation.

Some aspects of the law could be red flagged. The Court, including in later opinions, however imho went too far.

[John F. Carr]

"the top six donors supporting or opposing federal candidates each reported contributing at least $100 million"

Considering soft and dark money, I don't know what to make of this.

If you add up the numbers you get a billion dollars, which is what Kamala Harris raised. The billions are not directly comparable.

[John F. Carr]

What was the market value of Randolph Hearst's editorializing back in the day?

[Tallman]

Or Bezos's current ownership/control of WaPo?

Relatedly, how do you handle partisan media? Non-partisan (but strongly advocating for a view) media like Reason? Officially non-partisan (but everyone knows that it's really partisan) media?

What about books / movies? Can they be regulated, too?

[Brett Bellmore]

Hasen's problem is that he's trying to define "corruption" in a way that sweeps up constitutionally protected speech. Honestly, his definition of "corruption" is hard to distinguish from "I don't like it."

In that he's not unlike the 'reformers' who kicked off the campaign 'reform' movement, who were almost unremittingly hostile to freedom of political speech, seemed to think that political speech could only be permitted within stringent limits.

[Bob from Ohio]

Hasen's problem is that money was given to GOP candidates.

[Brett Bellmore]

Well, yeah, honestly it is.

[ducksalad]

Once a month or so you're correct.

Although Hasen's probably also upset that the wrong Democrat had more money in some primaries.

[Dick King]

I think that we need to lose the meme that money buys elections. There is a minimum, which candidates easily meet, but a candidate can't flood the zone usefully. In the last three presidential elections, the Democratic candidate outspent the Trump each time, but they only won one of them.

-dk

[Brett Bellmore]

That's actually what all the studies of campaign spending say: That spending has a more or less linear effect until you've spent enough to get your message out to everybody who would be paying attention, and after that the effectiveness drops off really fast.

Repeating your message to people who have rejected it does you no good at all, may even piss people off.

And incumbents reach that threshold at a lower spending level than challengers, because they have name recognition and a lot of free media. So if they can get the spending limit set low enough, challengers don't have a chance.

[Sarcastr0]

Federally, flooding the zone doesn't seem to move the needle. Though the baseline spending levels on elections is going up and up very fast.

The metric isn't who wins elections, though; the metric is which winners become beholden to a donor. Or to their party, honestly.

[Brett Bellmore]

And there you have Hasen's approach, that turns everything into 'corruption'.

The distinction between being favorably inclined towards somebody who gives you money, and being favorably inclined towards somebody who publicly and persuasively argues that you should be elected, (Independent expenditures) is one he doesn't actually consider relevant.

[Rossami]

I don't think this is a very effective counterpoint at all. The fact that money is being spent is not evidence that the spending of the money is "disastrous". This author, like the original sponsors of those laws, simply assumes rather than demonstrates that money is the problem.

The author then compounds his mistake by not addressing the possiblity that, even if his assumption is true, that the proposed cure could be worse than the disease.

Does lifting restrictions on election spending lead to more election spending? Of course it does. Literally no one ever said differently. So what? If you want to show that Buckley v Valeo was a mistake, you have to show actual negative consequences.

[Brett Bellmore]

The key point here is that 'reformers' like Hasen regard the very fact that people who spend more money have more influence as itself "corrupt". They're not talking about bribery when they say 'corruption'. They're talking about unequal political influence.

Call it the Harrison Bergeron theory of political spending: Everybody needs to be equalized down to the lowest common denominator.

[AmosArch]

As the Soviet Union showed. Getting rid of money in the system and people will just adapt another form of currency and reestablish another hierarchy. The probable effect of capping spending is that preexisting media reach will be the new currency. The elite influencers and media companies and controllers of government channels that already have access to the ears of a large audience will have an even more outsized influence than they do now because nobody is allowed to spend to challenge them.

Not so much antielite as it is proestablishment.

[skylark]

At Slate.. lol.

Come on, right out of the gate, "Whether or not money is the root of all evil, the root of our current American oligarchy" - I guess this dipshit never heard of barter. Calling the current supreme court oligarchy is basically slang for leftists to self identify. RBG refused to retire, like John McCain, they thought they were just way too important to hang it up. Mitch McConnell was correct in denying obama a 3rd justice after obama rammed thru 2 uniquely unqualified justices.

What next? Vox ?

While criticizing Musk, did the author contemplate Zuck Bucks? No - because he is just a hyper partisan.

[TheAmazingEmu]

I've said before that Citizens United isn't the problem, it's McCucheon v. FEC. By analogy, Buckley v. Valeo is a problem.

Spending money on independent speech is one thing. There's a clear correlation with the First Amendment. Giving money to a political candidate who might spend it on speech or spend it on lunch is a bit harder to justify with the four corners of the First Amendment. The idea that money=speech was unquestioned in Buckley and has led to the jurisprudence that followed without adequate attention to whether the money was actually being spent on speech or not.

[Brett Bellmore]

I agree that there's a huge constitutional difference between independent expenditures, and giving the candidate money.

The problem is getting the 'reformers' to admit that. It's not "money given to candidates" that bothers them, it's "money spent on speech", no matter who spends it.

[Brett Bellmore]

Anyway, right now the 'reformers' are transitioning to viewing independent spending and grass roots spending as worse than party boss spending.

They started out trying to get to a grass root support system where the fat cats couldn't call the shots, then found to their horror that the grass roots didn't AGREE with them about much, and the result was candidates they didn't like.

So now they're flipping to favoring routing as much money as possible through the parties, and strengthening the party bosses, to take power away from those awful grass roots.

“The Case for Stronger Parties in a Polarized Age,” at NYU Democracy Project

[Sisu]

It is always a sign of the significance of the academic effort when the author places their “high value” thinking behind a paywall.

Regardless, (except, is now the blog’s namesake getting a “kickback” for prompting teasers of “deep thinkers” hidden behind paywalls; or this a form of libertarian / liberal censorship: “want to know what we know fund: 'Our Cause’"): -

From the excerpt (above):

“It is going to take a constitutional amendment or Supreme Court reform to make things right again— … —but reform is unlikely …”

It was demonrat and liberal /progressive courts, building upon the “oligarchies” of the founders’ courts which have corrupted the credibility of the Article. III. judicial system.

Perhaps it is time to re-read (and, follow the footnotes) -

“Federal Judges: Appointment, Supervision, and Removal: Some Possibilities under the Constitution”, Burke Shartel, Michigan Law Review (1930; three parts).

“Government by Judiciary”, Raoul Berger, 2nd Edition (1997). And, (now there is perhaps; I have only read Jay Cost’s review of)

“The Constitution of Conflict, How the Supreme Court Undermines the Separation of Powers” by Thomas Bell (Nov. 2025)