Buckley v. Valeo

  • 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. 

  • September 13, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law George Washington University Law School. This post is part of an ACSblog Constitution Day Symposium.


    As Constitution Day approaches, there is much that will be and should be said in praise of the document that has successfully guided the United States for more than 220 years.  But when there is some part of our governance system that is broken, it does not denigrate the Constitution to recognize that and to propose to do something about it. That is, after all, why the Framers included Article V that makes it difficult, but not impossible, to correct a flaw in the grand design.

    Over 12 years ago, I signed on to a publication of The Constitution Project entitled "Great and Extraordinary Occasions: Developing Guidelines for Constitutional Change."  The authors argued that constitutional amendments should not be used without a showing of great need for an important part of our system and the absence of any lesser means of solving a problem.  I continue to hold that view, but have now concluded that those stringent criteria have been met and that only a constitutional amendment can fix the problem of uncontrolled spending in elections for public office.  Some would disagree because they believe that elections awash with money from those with strong economic (and sometimes other) interests in the outcome are good for democracy (or for the interests that they support), and hence would oppose such an amendment on its merits.  But for those who decry the current excesses in campaign contributions and expenditures, there is little choice other than to amend the Constitution.

    Much of the discussion about this issue lays the blame solely on the Supreme Court’s decision in Citizens United. But as I have detailed elsewhere, “It’s Not Just Citizens United,” that decision is only one part of a much larger set of problems, going back to 1976 in Buckley v. Valeo, when the Court held that the First Amendment precluded the Government from limiting the amount of money that individuals could spend to support candidates via independent expenditures.  In those days, that may have meant expenditures of at most tens of thousands of dollars, but in 2012 that has ballooned to tens of millions, significant portions of which go through organizations that collect money from multiple sources and whose independence is at least open to question.  Citizens United permitted for-profit corporations from doing what individuals can do on the independent expenditure side – albeit with vastly greater resources than all but a very few individuals – and many observers think that the century old ban on direct contributions by corporations is set for a similar demise.  Finally, in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the Court has put a serious crimp in the effort to create a public funding system by outlawing the effort to augment basic public funding to counter massive spending by an opponent that chooses not to be part of that system.  Additional disclosure would be good (assuming that Congress can pass it), but alone it cannot be enough to overcome these major rulings.  It is possible that the composition of the Court will change, but it is highly unlikely that all of these decisions will be overturned, which is pretty much what is needed.

  • January 28, 2011
    Guest Post

    By Dan Tokaji, Professor of Law, Ohio State University, Moritz College of Law. Professor Tokaji is also a member of the ACS Board of Directors. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC.
    Contrary to popular belief, the most significant aspect of last year's Citizens United v. FEC was not its conclusion that corporations have free speech rights. The Supreme Court actually settled this question long ago. Nor is the main problem the influx of anonymous corporate spending on federal elections. Citizens United may have exacerbated this problem, but it existed before - and, at any rate, identification of big spenders can be addressed through tougher disclosure and reporting laws.

    The most significant and damaging aspect of the Citizens United decision was its obliteration of equality as a rationale that may sometimes justify limits on political spending. Overruling this aspect of the decision is a precondition to real campaign finance reform. In thinking about what can be done to promote political equality, the United States would do well to consider Canada's example.

    Citizens United was correct to affirm that campaign-related expenditures - whether made by corporations or by individuals - have an expressive quality that warrants some degree of constitutional protection. Where the Court erred was in failing to recognize the consequences of the fact that money is essential to political participation. If effective electoral speech requires money, then those without money lack an equal voice in our democracy. The ultimate consequence is to skew political debate in favor of the wealthy, both in terms of who gets elected to office and the decisions they make once in office. This is anathema to a democracy committed to the principle of "one person, one vote." In effect, the have-alots have a much greater say in our political system than the rest of us.

    Students of American campaign finance law might note that Citizens United's rejection of equality is nothing new. That is partly true. Since Buckley v. Valeo (1976), the Court has purported to forbid campaign spending restrictions designed to promote equality. Buckley famously prohibited government from "restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others." On this basis, the Court struck down limits on individual expenditures in federal campaigns.