Buckley v. Valeo

  • May 21, 2015
    Guest Post

    by Gene R. Nichol, the Boyd Tinsley Distinguished Professor of Law and Director of the Center for Poverty, Work & Opportunity, UNC School of Law

    It’s no easy feat to crown a favorite Abraham Lincoln quote. The heartfelt urging of “malice toward none … charity for all,” the challenge to ordain “a new birth of freedom,” the recognition that “our republican robe is soiled and trails in the dust,” the tapping of the “better angels of our nature’, and the “mystic chords of memory stretching from every battlefield and patriot grave.” Many could quickly nominate a dozen others.

    My own is less noted: “Allow all the governed an equal voice in the government, and that, and that only, is self government.” [Though it is etched on the gallery walls at the Lincoln Memorial, our national temple of democracy.] The line comes from Lincoln’s 1854 Peoria address. Taking the national stage to decry Stephen Douglas’ repeal of the Missouri Compromise, Lincoln demanded, as Lewis Lehrman has written, that “the nation get right with the Declaration of Independence.” The defining portrait of democracy was the cornerstone, Lincoln reminded, of “our ancient faith.” It is the idea of America.     

    It would be hard to produce a stouter debasement of Lincoln’s sense of our national meaning than the recent parade of presidential hopefuls seeking audience, in humbled supplication, before a creepy and lengthening list of billionaire funders to secure meaningful entry into the 2016 race. The mega-buck primary is apparently more compelling, and decidedly more exclusive and demeaning, than the electoral one.  

    The Koch brothers have announced that a billion dollars is up for grabs for the candidate who pleases. Scott Walker reportedly has the inside track in what The New York Times calls the “Koch Primary.” But the mercurial pair has chosen to delay the purportedly outcome-bending announcement. Suspense, one supposes, augments the drama.

    When Sheldon Adelson let it slip that he was again in the market for a candidate, Chris Christie, Jeb Bush, John Kasich, Scott Walker rushed to Las Vegas to pay homage. The pageant was held, fittingly, in one of the Adelson casinos. The ever-belligerent Christie quickly apologized for prior statements about the Middle East. So much for tough-and-brutal talk. It is easy to see why. Adelson, who coughed up almost $100 million in 2012, suggested he’ll consider putting up serious money this time around. 

    Nor were others idle. Hedge Fund magnate Robert Mercer disclosed he will sponsor Ted Cruz. Rick Santorum, once again, will carry the colors of investment manager Foster Friess. Florida billionaire Norman Braham will provide at least ten million for Marco Rubio. Jeb Bush’s new super PAC, Right To Rise, will reportedly secure $100 million of individual and corporate donations by the end of May. The game is underway.

    The Democrats are no better – though they add a grotesque and habitual hypocrisy to the mix. 

  • January 21, 2015
    Guest Post

    by Fred Wertheimer, President, Democracy 21. Democracy 21 is a nonprofit, nonpartisan organization that works to strengthen democracy, prevent government corruption and empower citizens in the political process.                                                                    

    On January 21, 2010, five Supreme Court justices rejected decades of the Court’s own precedent and a century of national policy aimed at keeping corporate money out of our elections to issue the Citizens United decision.

    In issuing the decision, Chief Justice Roberts and his four colleagues wreaked havoc on our democracy and our constitutional system of representative government.

    Five years later, these five justices have bequeathed the following to the American people:

    • More than $1 billion in unlimited contributions that have flowed into federal elections through Super PACs – including more than $300 million through single-candidate Super PACS used by federal candidates and their supporters to circumvent and eviscerate candidate contribution limits.
    • More than $500 million in secret, unlimited contributions that have flowed into federal elections through tax-exempt 501(c) organizations.

    Citizens United has returned to federal elections massive amounts of the same kinds of money that played a central role in the Watergate corruption scandals – unlimited contributions and secret money.

    In 1976, the Supreme Court in Buckley v. Valeo upheld the constitutionality of contribution limits that were enacted in response to the Watergate scandals.  The Court found that “corruption” is “inherent” in a system of unlimited contributions.  The Court also upheld disclosure on the grounds that “disclosure requirements deter actual corruption.”

    In 2012, more than thirty-five years later, U.S. Seventh Circuit Court Judge Richard Posner explained the destructive impact of Citizens United.  Judge Posner, widely considered the most influential conservative judge not on the Supreme Court, said in an NPR interview:

    Our political system is pervasively corrupt due to our Supreme Court taking away campaign- contribution restrictions on the basis of the First Amendment.

    The Citizens United decision, written for the majority by Justice Anthony Kennedy, is based on a series of indefensible, if not astonishing, premises.

  • October 15, 2014

    by Katie O’Connor

    This past spring, McCutcheon v. FEC dealt the latest in a series of blows to campaign finance reform, striking down aggregate limits on the total amount of money a person can contribute to all candidates, parties, and PACs. Chief Justice Roberts wrote the opinion for the majority of the Court and Justice Breyer dissented. In this ACS Issue Brief, Alan Morrison asserts that while “the Chief Justice is right that the prior decisions of the current Court, as well as some of its predecessors dating back to Buckley v. Valeo, almost certainly support his conclusion on the invalidity of aggregate limits…Justice Breyer has by far the better argument that our democracy and the Constitution permit campaign finance laws that prevent more than what the majority will allow.”

    By the time the Court considered the aggregate limits in McCutcheon, most of the arguments in defense of such limits and other campaign finance reforms had been gradually eroded by the Court’s previous cases. The only defense to aggregate limits in McCutcheon was an argument that, without such limits, donors would be able to circumvent limits on contributions to parties, candidates, and PACs. However, there were a number of weaknesses in this defense, and given the Court’s decision in Buckley v. Valeo, it could hardly withstand scrutiny. Thus, the Court struck the aggregate limits as unconstitutional.

  • September 19, 2014
    BookTalk
    Buying The Vote
    A History of Campaign Finance Reform
    By: 
    Robert E. Mutch

    by Billy Corriher, Director of Research for Legal Progress, Center for American Progress  

    Early on in Robert Mutch's book, Buying the Vote: A History of Campaign Finance Reform, the identity of the villain is clear. Mutch describes the campaign finance reformers of the early twentieth century as focused on keeping corporations from exerting too much influence on politics and politicians. As large corporations first emerged, the public debated the proper role of these institutions in our democracy. After a series of scandals, early reformers' goals included "keeping corporate money out of elections and preventing the inequality of wealth from undermining political equality among individual citizens."

    Mutch also clearly disagrees with the current U.S. Supreme Court's approach to campaign finance reform. But unlike so much commentary today, Mutch provides rich context for his critique. He begins with early campaign finance scandals and the small triumphs of reformers like Louise Overacker. The early reformers achieved some victories, after the public learned that "the country's major political parties were being financed by" large corporations. New laws led to disclosure of campaign contributors and bans on corporate campaign cash.

    The second wave of reforms came in the wake of Nixon's secret receipt of campaign contributions from corporations. But Mutch notes that, unlike the response to the first wave, opponents rushed to the courts to block the new laws. The definition of democracy as excluding corporations was challenged when "the enforcement provisions of the post-Watergate laws raised the possibility that the....reforms would be more than symbolic."

    In the face of campaign finance reform, environmental regulations, and consumer advocates, big business felt like it was under attack at the time. Justice Lewis Powell, while an attorney for the US Chamber of Commerce, wrote an infamous memo warning that business needed direct political action to counter the "assault on the enterprise system."

  • October 8, 2013

    by Jeremy Leaming

    As was widely expected the Supreme Court’s conservative justices appeared sympathetic to a wealthy businessman’s complaint about federal restrictions on overall contributions individuals can give directly to candidates. The limits described as aggregate limits are intended to prevent corruption of democracy.

    But Alabama businessman, Shaun McCutcheon, and the Republican National Committee are urging the high court to set aside such limits, saying they subvert free speech rights. McCutcheon told The Times last week that Americans need to spend more, not less on politics. But in reality only a tiny few have the resources to spend the kind of money McCutcheon has and wants to on politics.

    Nevertheless, the conservative justices, especially Antonin Scalia and Samuel Alito, showed little confidence in U.S. Solicitor General Donald Verrilli’s argument that aggregate contribution limits, help prevent corruption of democracy.

    “Aggregate limits combat corruption both by blocking circumvention of individual contribution limits and, equally fundamentally, by serving as a bulwark against a campaign finance system dominated by massive individual contributions in which the dangers of quid pro quo corruption would be obvious and inherent and the corrosive appearance of corruptions would be overwhelming,” Verrilli said during oral argument in McCutcheon v. Federal Election Commission.

    Later, Verrilli acknowledged that the aggregate limits might restrict an individual like McCutcheon from making direct contributions to a certain number of candidates. But that limit Verrilli continued would not stifle McCutcheon’s First Amendment rights. For he could still funnel money into groups that help advance those candidates. “Mr. McCutcheon,” Verrilli said, “can spend as much of his considerable fortune as he wants on independent expenditures advocating for the election of these candidates.”

    If the conservative justices vote to erase or greatly weaken limits on overall contributions, it would as The New York Times Adam Liptak notes “represent a fundamental reassessment of a basic distinction in Buckley v. Valeo in 1976, which said contributions may be regulated more strictly than expenditures because of their potential for corruption.”

    Democracy 21 President Fred Wertheimer said in a press statement that if the contribution limits are invalidated in McCutcheon “we are bound to see the $1 million and $2 million contributions that would be permitted by such a decision used by influence-seeking donors to corrupt government decisions.”

    He urged the high court to “not empower the wealthy few to buy the government that belongs to all Americans by striking down longstanding contribution limits that protect citizens against corruption.”