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?

[Seamus]

IIRC, the government's counsel was asked about books at oral argument before the Supreme Court, and he said that books would in fact be banned if they advocated the election or defeat of a candidate and were published or distributed by a corporation or labor union. That means that Phyllis Schlafly's book, A Choice Not an Echo, would have been illegal. (I presume that Pere Marquette Press, the publisher of the book, was set up by Schlafly as a corporation.)

[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.

[Sarcastr0]

'favorably inclined'

Your selective trust of government integrity stinks.

[Brett Bellmore]

Are you implying that not trusting government integrity means I should favor giving the government the power to censor political speech?

[Sarcastr0]

A telling change of thesis, that is what your comment said.

You were on the costs side of the ledger minimizing corruption as favorable inclination. And claiming actual speech is identical to donations of money.

Which ignores how money can have a variable quantity well above where speech tops out.

[Brett Bellmore]

Your incomprehension of my thesis doesn't constitute my thesis changing, Sarcastr0.

[Sarcastr0]

You don't even realize it, do you? You're arguing there is no cost. The corruption is just 'favorable inclination' just like if someone spoke.
Normal politics stuff.

You often do that - overdetermine so your beliefs are 100% costless.

To normal people, that would be a sign they've left reality and are in a place they have not reasoned themselves into.

But you live in a very smooth world. Have for a long time.

[Brett Bellmore]

Sarcastr0, if I hadn't been interacting with you for years now, I'd be convinced at this point that you were just a chatbot. I've got an old copy of RACTER around here somewhere that has better reading comprehension.

Where exactly did I say there were no costs? Come on, if I said it you can point out the words.

Why would I feel any need to claim such a stupid thing? Whether there are costs is irrelevant. The 1st amendment, beginning with the five most beautiful words in the English language, (Pity they didn't stop while they were ahead.) does not have an invisible "unless there are costs, in which case ignore all that jazz about Congress not abridging this or that." clause that appears under UV.

It doesn't MATTER if the government asserts that there are costs to not abridging freedom of speech. It doesn't freaking MATTER. If we let the government violate the Constitution every time it claims there's a cost to upholding it, we might as well burn the Constitution, at least we could warm our hands over it for a few seconds.

[Sarcastr0]

Whether there are costs is irrelevant

No new goalposts.
Dick King's post was about policy. So was your response. So was my reply. So was your 'it's not really corruption it's just favorable inclination' post.

Now you're saying costs-benefit doesn't matter.

That's a change of subject.

I'll take the W.

[Brett Bellmore]

So, you're conceding that I didn't say it?

There is no change of subject, because you don't get to dictate the scope of the subject. Your attempts to plant "goalposts" and demand people stay within them is absurd.

Yes, whether there are costs is irrelevant, when you're considering the constitutionality of something the Constitution says the government can't do.

There is no "unless there are costs" disclaimer on any clause of the Constitution. I'll say this again:

"If we let the government violate the Constitution every time it claims there's a cost to upholding it, we might as well burn the Constitution, at least we could warm our hands over it for a few seconds."

[BadLib]

Voters each get one vote no matter how wealthy they are.

Any limits on campaign spending is an indictment of the thoughtfulness of the average voter. If they are swayed by ads, that's on them and their right to behave stupidly. Such behavior is, however, not a reason to stifle another person's speech.

If AOC gets coverage when she opens her mouth and gets free coverage well outside her district by doing so, why should voters not also be given the opportunity to hear the views of others who are wealthy but not as infamous so have to buy the time or pay to rent a venue for a town hall meeting?

[TheAmazingEmu]

Deleted

[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.

[David Nieporent]

It's like MAGA madlibs.

[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.

[TheAmazingEmu]

Luckily, I don't have to agree with any particular "reformer" to have my opinion on the issue. I'm a defender of what Citizen's United actually said, as opposed to what it was stereotyped to say. The problem is the majority in McCutcheon seemed to use what people claimed Citizen's United said to support their opinion in that case. I did and continue to do defend Citizen's United as the correct decision. I continue to think McCutcheon and some aspects of Buckley v. Valeo were wrongly decided.

[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

[JoeFromtheBronx]

money=speech was unquestioned

The opinion said:

"Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two."

"Money=speech" is painting things with a rather broad brush.

[Sarcastr0]

I agree as to the specific opinion, but that is how the precedent has gone.

[Brett Bellmore]

It's inevitable that, if you only have an interest in regulating money if it's going to be spent on political speech, people will conclude you're actually interested in regulating the speech.

[Sarcastr0]

Campaigns spend money on tons of stuff that's not messaging.

[Brett Bellmore]

And yet again I'll remind you that the campaign 'reformers' like Hasen are just as obsessed about controlling independent expenditures.

[Sarcastr0]

They call this ad hominem via telepathy.

[Brett Bellmore]

Once again you declare "reading" to be telepathy.

[Sarcastr0]

I do not see "only have[ing] an interest in regulating money if it's going to be spent on political speech."

In fact, the speech side isn't even part of his discussion.

Wait...are you arguing nonprofit status for 501(c)(4)'s is a First Amendment *requirement*?

[Brett Bellmore]

Oh, right, forgot you had negligible reading comprehension, which is why you think reading is "telepathy"; You can't derive meaning from written words, so you think it's some kind of magic when other people claim to have done it.

"Corruption is an urgent question for 2012 voters — as outside spending on federal elections skyrockets,"

So, the essay is not talking about contributions, but instead independent expenditures. Independent expenditures on speech. Literally, "money spent on political speech".

Hasen then quotes Justice Kennedy: "Kennedy also rejected the idea that the concept of corruption should be read broadly beyond bribery and related conduct to include “ingratiation and access.”"

He quotes this line to disagree with it. Because Hasen thinks that the government should be able to treat it as "corruption" if you as much as say something that a politician appreciates. You know, "ingratiation". "The act of gaining acceptance or affection for yourself by persuasive and subtle blandishments."

Blandishments are speech, in case you didn't know that.

"Large independent spending can also lead to indirect corruption. Ornstein’s column explains that the prospect of a large Super PAC drop against a senator or representative puts pressure on candidates to raise ever more money in $2,500 chunks (the largest amount allowed for direct individual contributions) and lean on lobbyists for it."

IOW, you can regulate independent expenditures on speech because if you let people besides candidates speak freely about politicians, the politicians might feel driven to raise money to spend on contradicting what they said, and might raise it in a corrupt manner.

Hasen has transformed any hint of political speech into potential corruption, and thus susceptible to being regulated. The money is just a handle to get at the speech.

[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)

[JoeFromtheBronx]

Richard Hasen among other things has written that he opposes an amendment to overrule Citizens United.

[Brett Bellmore]

Plutocrats United

"In Plutocrats United, Richard Hasen argues that both left and right avoid the key issue of the new Citizens United era: balancing political inequality with free speech."

I'm racking my brain: Which amendment in the Bill of Rights guaranteed "political equality"?

Hasen's opposition to such an amendment is not really a sign of concern for preserving freedom of speech. Rather, he thinks such an amendment has little chance of being originated, let alone ratified, and that it's better to just bully the Court into overturning CU and letting Congress regulate political speech.

[Sarcastr0]

Maybe the key issue is tied to good policy and moral political philosophy. Honestly, you shouldn't waive the BoR like a talisman. You talk enough about a constitutional convention maybe don't attack every dissent from what your Constitutional view is as anti-freedom.

Like, I agree CU falls out of Buckley, but attempting the poison the well like what your comment just did is a recipe for no one to take you seriously.

Which, I supposed, that ship has sailed.

[Brett Bellmore]

His moral political philosophy demands political censorship, like I said, it's Harrison Bergeron for political speech. I don't have to respect that.

[Sarcastr0]

You appeal to authority and then backtrack to name calling,

A prime way to lose an argument.

Of you’re so vain you would rather feel righteous than persuade, go off.

[Krayt]

What happened to something like "The idea of balancing the relative power of voices is wholly foreign to the First Amendment"?

Who told you that was a thing? Aside from one side looking to silence the other, of course. How quickly we abandon tit for tat or the appearance of tit for tat as censorship reason, and just go full bore!

[Krayt]

Ya know, I voted for Obama over McCaine not because I wanted a Democrat in so much, but to keep him out. I didn't like his hand in censorship regimes like the one half named after him.

He said something very interesting once. Not concerns over tit for tat. Not concerns about some nebulous "too much money".

No. He said he hated to spend every waking minute that wasn't actually on the floor voting, from morning through late nite, on the phone seeking money.

Well! Ok, that would be irritating and annoying! But you chose that life, and stuck with it for decades.

We The People decline your censoship regime just because it irritates you. For The People to be silent because it's so irritating to you and others in power to build your speech war chest, to play the game you sought out!

No thank you. We choose to speak.

[Tom Smith the Lesser]

"We The People decline your censoship regime just because it irritates you. For The People to be silent because it's so irritating to you and others in power to build your speech war chest, to play the game you sought out!"

Hear, hear!

[Tallman]

>overrule Citizens United

...which, of course, means that only billionaires get to speak, as they don't need a corporate entity to pool money. #equality

[CindyF]

Mark Zuckerbeg donated $419 million to support the Democrats in the 2020 election. Since that fact is not mentioned in the above article, I'll assume the author is not actually concerned with money in elections. He is just concerned about money going to Republicans in elections.

[Sarcastr0]

Special pleading is a pretty transparent and lame attack on a policy prescription.

[Rossami]

You're not actually very good at identifying logical fallacies. You should give this schtick up.

[Sarcastr0]

And this one here is ipse dixit.

[Tom Smith the Lesser]

Smack! [to the bitch!]

[Doug Heffernan]

The zukerdude says that the 400 mil "provided funding to two non-partisan organizations which distributed grants to state and local governments to help them conduct the 2020 election during the first year of the COVID-19 pandemic to help cities and states ensure that residents could vote regardless of their party or preference".

https://apnews.com/article/fact-checking-mark-zuckerberg-election-donations-188810437774

[Brett Bellmore]

Yes, he helped people vote regardless of party or preference in locations where most people were Democrats.

But if you were the rare Republican in those places, you got the help, too, so it totally wasn't partisan.

[Sarcastr0]

Cities are where all the people are.

Why do you love conspiracy theories so much??

Zuck can suck all on his own without you making up a sekret agenda.

[David Nieporent]

Yes, he helped people vote regardless of party or preference in locations where most people were Democrats.

He helped people vote in locations where election officials asked for help.

[David Nieporent]

Mark Zuckerberg did not donate any money to support the Democrats in the 2020 election. (Well, he might have — I haven't looked up his contributions — but that's not what CindyF is ignorantly talking about. The talking point she is mindlessly passing on is about grants that his organization gave to help election officials deal with COVID expenses. They were not given to Democrats and were not given on a partisan basis. (To be sure, most of the grants went to liberal jurisdictions, but that's because the conservative ones refused to apply because they didn't want to make it easier to handle COVID expenses, because Donald Trump instructed them not to.))

[Chip Watkins]

Markets work. Large donors commit large amounts to influencing elections because they perceive that federal and state governments have great authority to influence the profitability of their businesses. It's a cost of doing business. Reduce the scope of the government's ability to crew businesses, and you will see a corresponding reduction in election spending by wealthy donors.