The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"To Buckley v. Valeo: The Decision that Saved Democracy," by Bradley A. Smith
"The Court's defense of political speech remains essential to American democracy five decades later."
The final item in an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Bradley A. Smith, the Chairman and Founder of the Institute for Free Speech and the former Chairman of the Federal Election Commission:
Americans hate the combination of money and politics. Of that there can be no doubt. Every public opinion poll taken on the topic reflects that reality, as do the daily conversations I have about politics.
Substantial majorities of Americans see political contributions and spending as a source of corruption, believing that officeholders routinely sell votes or other official action in exchange for campaign contributions. It matters naught that there is near-unanimous agreement among political scientists who have studied the issue that campaign contributions do little or nothing to affect how a politician votes once in office.
Further, when wealthy Americans deploy their financial assets to argue for their preferred policies and candidates, it strikes many Americans as an affront to political equality. Few people can comfortably afford to spend $1,000 in an election campaign, let alone six, seven, or eight figures. Why should being rich give someone more political influence? That a big-spending political donor might empower millions of Americans who share the donor's views but otherwise would not be heard, is rarely considered.
In recent years, discontent with money and politics has focused on the Supreme Court's 2010 decision in Citizens United v. Federal Election Commission, which held that U.S. corporations had a First Amendment right to spend money in support of or opposition to candidates. But Citizens United, while a very important decision, was not quite the game-changer many casual observers think it is.
As a practical matter, in the typical election cycle since Citizens United, for-profit corporations account for between 1.5 percent and six percent of total spending—the vast majority of money in elections still comes from individual donors and spenders. And as a legal matter, it is not Citizens United, but the Supreme Court's 1976 decision, Buckley v. Valeo, that guarantees Americans the right to spend unlimited sums to try to influence how their fellow citizens think about candidates and issues.
If you are not familiar with Buckley, you should be, and I would encourage you to review the insightful perspectives shared in this symposium. It is no exaggeration to say that Buckley, which struck down on First Amendment grounds portions of the Federal Election Campaign Act Amendments of 1974 (FECA), saved American democracy.
In Buckley v. Valeo the Court held, by a 7-1 tally, that Congress could not, under the First Amendment, limit spending in political races. Lawyers who work in elections, scholars studying in the field, and activists who seek to promote (or resist) restrictions on campaign spending and contributions recognize that Buckley is the true target of campaign finance reform, even if most Americans do not. In fact, experts—including the Supreme Court majority that decided Citizens United—generally agree that the outcome in Citizens United flows naturally and even directly from Buckley, and that Citizens United did far less plowing of new ground than it did smoothing out leftover issues that had not been specifically addressed in Buckley.
Former FEC Chairman Ellen Weintraub, a confirmed advocate of more regulation of money in politics, says, "Flipping Citizens United achieves little so long as the Buckley decision stands." Her comments echo those of legal scholar Ellen April, who calls Buckley v. Valeo "the original sin" in the Supreme Court's campaign finance jurisprudence. The "original sin" label has been widely picked up by "reform" groups such as Demos, which lobbies for a Constitutional Amendment to overturn Buckley. "Real solutions," adds Demos, "require the Supreme Court to transform its entire approach … and to revisit Buckley."
Attacks on Buckley, and campaign finance reform generally, have been sold to the public a bit like a 19th-century patent medicine—"it's good for what ails ya'." Is there a special interest you don't like that seems to be getting its way in Congress? Campaign finance reform. Tired of negative ads? Campaign finance reform. Think politicians are corrupt? Feel like you are not being heard? Your preferred candidate lost the last election? Campaigns are too long? Campaign finance reform.
The arguments made for campaign finance reform—by which is meant regulating the ability of Americans to spend their own money to publicize and argue for their political beliefs—resonate precisely because campaigns are messy and often frustrating. The same is true of democratic governance more generally. Our preferred candidates do lose. Policies that seem so obvious to us are rejected by our fellow voters, and, even when they are enacted, collecting the necessary votes to pass often requires some compromise. Politicians and their partisans do exaggerate and even lie to try to sway votes. And while each of us has an equal vote, no, we do not all have "equal political influence," and will not, regardless of how much or little is spent on campaigns, or by whom.
Pointing to alleged flaws in our current system is easy—it's like complaining about the weather, which can never satisfy everyone at the same time. But what would a world without Buckley actually look like? Suppose the Supreme Court had agreed with the Court of Appeals, which upheld FECA, saying, "the present situation"—that is, a situation in which Americans were free to spend their money to try to convince others how to vote—"cannot be tolerated by a government that professes to be a democracy."
Fortunately, we don't have to guess the answer, because we know what Congress actually passed in the 1974 FECA Amendments.
First, Buckley struck down a FECA-imposed spending cap of $70,000 on candidate campaigns for U.S. House. Today, in a small to mid-sized market such as Peoria (Illinois), Flint (Michigan), or Des Moines (Iowa), a single 30-second spot on Wheel of Fortune costs upwards of $1,000—not including the cost of producing the spot. The idea that a $70,000 campaign could cover the costs of advertising, not to mention travel, staff, office space, and other promotional activity, for a typical congressional district of more than 750,000 people is pure fantasy.
The $70,000 spendng cap included an inflation adjustment provision, which would be about $410,000 today. But the law made no provision for increased population, and a congressional district today contains about 60 percent more people. Furthermore, even in 1976, the median victorious challenger to an incumbent, or winner in an open-seat race, spent far more than $70,000, and today, a challenger needs to spend far more than the inflation-adjusted $410,000 to defeat an incumbent. Indeed, in 2024, the median challenger to unseat an incumbent in the general election spent over $5 million. Extensive research by Gary Jacobson and others has shown that, while incumbent spending matters, challenger spending matters far more—the ability of a challenger to unseat an incumbent is much less dependent on the challenger-to-incumbent spending ratio than simply on the amount spent by the challenger.
This makes perfect sense. An incumbent's pre-campaign name recognition and the ability to command media attention without paid advertising, coupled with perks of office—such as the performance of constituency services, official government websites, and the franking privilege—not only give incumbents a huge leg up on challengers, but make their spending both less important and less valuable to their re-election prospects. In economic terms, incumbents reach a declining marginal utility in spending much earlier than do challengers, who need to introduce themselves to voters (in most cases) and make the case for change. While victorious challengers in 1976 typically spent well over $70,000, victorious incumbents, on average, spent a bit under $80,000. In other words, FECA set the spending cap right at the level at which challengers became competitive with incumbents.
But even more important for democracy than the limit on candidate spending, FECA also prohibited any individual or group of people from spending more than $1,000 "relative to" a candidate. In other words, unions, small businesses, civic associations, trade associations, and advocacy groups such as the Sierra Club, the U.S. Chamber of Commerce, the ACLU, and the NRA would have been unable to purchase more than a single ad of two column inches in a major U.S. daily newspaper in 2025, in order to discuss their views "relative to" a candidate. Even in 1976, a single, one-quarter-page ad in the Sunday New York Times cost between $25,000 and $80,000.
Absent Buckley, the effect of FECA—and arguably its purpose—would have been to exclude the civic and community organizations that give such life to America, and American democracy, from public discussions of candidates for political office. Only one group—the commercial press—was exempt, as if the Washington Post and New York Times, or the three major television networks of the day (and today Fox News, MSNBC, and others) would never have a political agenda or run opinion segments.
Nor should we think that enforcement of FECA would have been limited to the most direct forms of campaigning. Even before the 1974 FECA Amendments, the very first prosecution under FECA, passed in 1971, was brought by the Nixon administration against an ad hoc group of citizens dubbing themselves the National Committee for Impeachment. On Wednesday, May 31, 1972, the group paid $17,850 to buy an ad in the New York Times, calling for Nixon to be impeached because of his policies on the Vietnam War (note that this was before the Watergate scandal, and while Nixon was a candidate for re-election). The group refused to register as a "political committee" or report its donors to the government—Remember, the Nixon White House kept an "enemies list."
The U.S. Court of Appeals for the Second Circuit blocked this particular prosecution, but it was only thanks to Buckley that that FECA's provisions mandating disclosure of donors were finally limited to direct citizen contributions to political campaigns, or to expenditures that "expressly advocated" the election or defeat of a candidate with explicit language such as "vote for," "vote against," "support," or "defeat." This ruling allowed American citizens—such as the Committee for Impeachment—to criticize their government without fear of retaliation. However far the public's "right to know" might extend, Buckley has prevented it from becoming authorization for a government-maintained database of its critics' political activity.
There is much more to Buckley—it's a massive decision covering 294 pages in the U.S. Reports. It is an important separation-of-powers decision, holding that Congress may not arrogate to itself the right to appoint executive branch officials—an early challenge to the power of the "Administrative State." Buckley also upheld the right of Congress to place limits on contributions directly to political candidates and parties, but made clear that those limits could be challenged—as they have been on rare occasions—if they were set so low as to stifle competition. But at its core was striking down portions of the law that would have turned the American public into mere bystanders in political debate.
It is not a perfect decision. Its distinction between allowing limits on contributions to candidates but not on candidate expenditures has often been criticized. It was a hurried decision, rushed out to meet a statutory command, and be in place before the 1976 election cycle geared up. Given this, it is not surprising that, at points, it seems disjointed and its reasoning muddled.
But the Buckley court understood, above all else, that communicating political ideas to a nation of hundreds of millions requires spending money. Buckley critics seem to believe that democracy can exist without citizen participation in the political debates of the day. The Buckley court rejected such sophistry.
Specifically, the Court rejected the notion that "government may restrict the speech of some elements of our society in order to enhance the relative voice of others" as "wholly foreign to the First Amendment." Americans understandably chafe at the ability of the rich to buy a bigger megaphone than anyone else. But the alternative, the Court understood, is not political equality, but rather leaving it to the central government to decide just who had too much influence, and who not enough.
If the First Amendment means anything, surely it means that it is not for the government to pick and choose who gets to speak more in our political debates, and what views should be silenced or cut back, lest too many be convinced of their truth. If you are a Democrat, imagine such power in the hands of the Trump administration; if a Republican, imagine Joe Biden's government with such unchecked power to "equalize" debate by silencing those it believed had too much influence.
Without Buckley, the effect of FECA's sweeping spending limits would have been to filter virtually all political discussion, including discussion of issues and policies, through the institutional press. And this filtration would impact not just individuals but unions, trade associations, civic groups, and advocacy groups of all types. From Planned Parenthood to Right to Life, from the Sierra Club to the Chamber of Commerce, and everything in between, FECA would have silenced organizations wishing to engage in political speech.
All such speech would have been filtered through the institutional press except for the slim, inadequate allowances made for candidate campaigns. American citizens? Their job was to watch and vote, and nothing more. If the press didn't cover your issue, or did so in a biased way? Tough. "Shut up," was the essential command of FECA.
In the years since Buckley, "reformers" have never surrendered the dream of a world in which they would control political debate, allowing only the "necessary" amount of speech by approved speakers—most notably the press. They have argued for regulating blogs and emails, for limiting broadcast ads that even mention a candidate within 60 days (or even more) of an election, and for considering your use of a personal computer to publish your views online to be deemed a reportable (and limited) campaign expense. But these views are typically confined to arcane regulatory agenda, unwatched congressional hearings, and insider chatter. To the public, campaign finance reform is still presented as a cure-all elixir: "good for what ails ya'." As we reach the milestone 50th anniversary of Buckley, its critics should not be allowed to argue for its repeal while offering a blank canvas in exchange, let alone while filling that canvas with pictures of puppies and rainbows.
If not Buckley, then what, exactly, is proposed? What will it mean to "equalize" influence? How will government corruption be prevented if those in power can use government to squelch criticism of their performance? How would citizens' participation and government responsiveness to the wishes of the citizenry be enhanced if the groups that people join to bring about change were essentially barred from communicating their views about candidates and issues?
True democracy isn't always pretty. It is messy, chaotic, and comes with costs as well as benefits, and disappointments as well as rewards. But without Buckley, our political life would be impoverished. Like most 19th century patent medicines, the "cure" is worse than the disease.
So here's to the 50th anniversary of Buckley v. Valeo—the decision that saved American democracy.
