Buckley v. Valeo

  • 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.”

  • February 19, 2013

    by Jeremy Leaming

    If you thought the U.S. Supreme Court’s right-wing justices were finished tackling the scope and reach of campaign finance law with its 2010 Citizens United v. FEC, you were wrong.

    The high court, with its announcement today to review limits on contributions to candidates during two-year election cycles, could be ready to extend even more leeway to the nation’s most powerful to influence elections.

    The justices, as The Huffington Post’s Paul Blumenthal reports, agreed to review a case called McCutcheon v. Federal Election Commission, which will provide the opportunity to overturn the limits. As Blumenthal notes the limits on contributions were upheld in the Court’s Buckley v. Valeo case, but campaign finance regulations took a major hit with the Court’s Citizens United opinion, which gave corporations greater power to spend freely to influence elections.

    SCOTUSblog’s Lyle Denniston reports that a more pressing concern than tinkering with limits on campaign donations may be lurking in the background. “Since the Supreme Court’s landmark opinion in 1976 in Buckley v. Valeo, it has always given government more leeway to control contributions to candidates or political organizations than over spending by candidates or by independent political activists.  That differing constitutional treatment potentially is at stake in the new case ….”

    Denniston continues, “What is at stake directly is the constitutionality of the two-year ceilings that federal law sets on what an individual can give during a campaign for the presidency or Congress, in donations to candidates, to political parties, or to other political committees.

    Democracy 21, a nonpartisan group working to “eliminate undue influence of big money in American politics,” said the outcome of the case could have “enormous consequences for the country."

    The group’s president, Fred Wertheimer, in a press statement, said the “aggregate limit on contributions by individuals is necessary to prevent circumvention of the limits on contributions to candidates and political parties and the prohibition on federal officeholders soliciting huge corrupting contributions.”

    Wertheimer and the group's counsel, Don Simon, also exmaine in a new ACS Issue Brief the extensive problems with the Federal Election Commission, the agency charged with enforcing the nation's campaign finance laws. The two write that the president has failed to appoint commissioners to the six-member entity and that the FEC is now controlled by members who are "ideologically opposed to the campaign finance laws."

    If the high court were to gut or weaken the limit on contributions it would “open the door to $1 million and $2 million dollar contributions from an individual buying corrupting influence with a powerful officeholder soliciting these contributions, and with the political party and federal candidates benefiting from these seven figure contributions.”

  • October 16, 2012
    Guest Post

    By David Kairys. Kairys, a law professor at Temple University, is a leading civil rights lawyer and author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. This is drawn in part from his article forthcoming in the Illinois Law Review with full cites to the cases discussed here, The Contradictory Messages of Rehnquist-Roberts Era Speech Law: Liberty and Justice for Some.


    The Supreme Court is most known these days for two innovative free speech principles and an unprecedented court order: money is speech and corporations are people, and George W. Bush is the 43rd president of the United States.   

    These decisions have drawn the harsh criticism they deserve. The campaign finance cases transformed our electoral and constitutional systems by ruling that a handful of the wealthiest Americans must be allowed to dominate the electoral process.

    But all three of these cases expanded speech rights and have contributed to a widespread impression that over the last few decades, the Supreme Court, while more or less dominated by self-described conservative justices, has been generally, if also sometimes excessively, pro-free speech.  This impression has been fed by occasional decisions protecting some outlier protests, like picketing near soldiers’ funerals.

    Others see the court as anti-free speech, pointing to decisions that restrict the speech rights of, for example, students and government employees, and to the lack of judicial protection of demonstrators as public officials increasingly these days keep them away from public and media visibility and the objects of their protests, out of sight and out of mind.

    Looking at the range of speech decisions over the past few decades, inconsistent, selective, and contradictory seem better descriptors than pro- or anti- free speech.  But there are discernible and significant themes and patterns in the tangle of speech decisions, principles, and doctrines, and they have been ignored far too long.