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Campaign Finance Reform in Buckley v. Valeo
In the aftermath of the Watergate scandal, Congress amended existing campaign finance laws to limit the amount that could be contributed to, or spent by, political campaigns. The Supreme Court considered these regulations in Buckley v. Valeo (1976) and made a momentous hash of the legislation. The verdict therefore both protects and violates free speech rights, though its arguments for the former (expenditures) apply equally to the latter (contributions).
Those who want to limit contributions argue that, in contrast to expenditures, contributions are less connected to my speech; only indirectly does my check, after proceeding through the local campaign office to the national office to an advertising firm, really express my views, or my own voice.
First, as Chief Justice Burger observes in his dissent, the distinction between contributions and expenditures “simply will not wash” (619). It is more semantic than substantive. Limits are limits, regardless of their consequences or one’s intentions.
Second, political contributions of any size are still a form of speech, as the Court implicitly acknowledges in allowing up to $1,000 (now $2,000) of it. “Your contribution to a candidate,” notes the radio host Andrew Lewis, “is de facto the publication of your ideas.” Thus, however a candidate uses your money, however it reaches him, however “symbolic” it may be in constitutional parlance, it’s still your money—it’s still your speech. If you give money to a candidate, you bolster his candidacy; if you withhold your financial sanction or contribute to another candidate, you implicitly sap the former candidacy. This is how people communicate politically in a representative republic.
Moreover, the “extent to which we ban money from campaigns is the extent to which we ban our . . . ability to express ourselves”; the only proper limits are each individual’s willingness to spend the fruits of his labor. A free society cannot survive as a free society without the unfettered expression of ideas.
Furthermore, as the Court itself argues regarding expenditure limits, a cap “naively underestimates[s] the ingenuity and resourcefulness” of those who seek vicarious political influence (615). According to Todd Gaziano, the Director of the Center for Legal and Judicial Studies at the Heritage Foundation, caps are “like trying to dam a stream with a pile of sticks. Campaign spending eventually will flow through the dam, over the dam, or find another path.” Indeed, as Bradley Smith demonstrates in Unfree Speech: The Folly of Campaign Finance Reform, caps affect the channels through which money reaches political campaigns, rather than the total amount of money.
Nonetheless, the Court argues that because its cap still leaves people “free to engage in independent political expression” (613), pursuing other avenues such as resource-rich advertising, caps do not have “any dramatic averse effect” (611), like undermining “the potential for robust and effective” campaigns “to any material degree” (613). But it doesn’t matter if caps preserve some speech. As Barry Goldwater declared, “[E]xtremism in the defense of liberty is no vice! And . . . moderation in the pursuit of justice is no virtue!” Accordingly, especially as the last bulwark against tyranny, free speech is too sacred to be restrained or subjected to a cost-benefit analysis; it needs no checks or balances, for it is its own.
Still, the appellants argue that contributions exceeding $1,000 tend toward bribery. Since running for office requires significant donations, politicians increasingly offer pork barrels to those who underwrite their campaigns. Both the “actuality and appearance” of this influence peddling thus “undermine[s]” the “integrity” of and our “confidence” in the government (612). After all, how can I, a college student with a $25 check reserved for my favorite candidate, compete with Fortune 500 companies that contribute (however indirectly) hundreds of thousands of dollars—to multiple candidates?
Now, concerns that electoral contributions amount to quid pro quos are legitimate. The need to curtail the pressure-group warfare that engulfs Washington is urgent. Yet the criteria the Court use employ the yardstick not of the First Amendment—which should guide all discussion of free speech issues—but of its consequences. Consequences are important, but we cannot eliminate a problem by manipulating its effects.
Rather, we must consider the root cause, which the Court believes is unlimited contributions, in which “corruption inhere[s]” (612). But, in fact, corruption inheres in unlimited government—toward which ours increasingly tends. Thus, to get money out of politics, we should take politics out of money. As the writer Frank Pellegrini explains: “The thicket of bendable laws [and] targeted tax breaks . . . are what keeps the campaign checks in the mail and the lobbyists in the corridors of power. When one tweak in one bit of fine print can save a corporation millions, how can we expect them to stop trying to secure that advantage—or expect politicians with elections to fund to stop listening?” Concludes the writer Edwin Locke: only when politicians “have no special favors to sell will lobbyists stop trying to buy their votes.”
 Steven J. Shiffrin and Jesse H. Choper, The First Amendment: Cases, Comments, Questions, 3d. ed. (St. Paul, Minn: West Group, 2001). All parenthetical page numbers refer to this text.
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