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By David Schultz
There is a lawyer’s adage that bad facts make bad law. But it is also true that bad court decisions make bad law. Nowhere is the latter more true than in the area of campaign finance law. Specifically—when in the next couple of years the Roberts Supreme Court strikes down the last remaining Watergate era campaign finance laws—the seeds of campaign finance reform’s demise will rest in the very case that started it all: Buckley v. Valeo, 424 U.S. 1 (1976).
Critics of the Supreme Court, such as former U.S. Circuit Judge Robert Bork, asserted that judicial opinions need to be based upon neutral principles of law. Court opinions should be premised upon generalized principles of law. The reason for this is that while Congress and legislatures are subject to elections as constraints on their behavior, Supreme Court justices are appointed for life and the idea of principled decision-making is supposed to serve as a check on their behavior. Additionally, legal principles are the basis of stare decisis, precedents providing for guidance for future decisions. Unfortunately, Buckley v. Valeo failed to live up to this standard, paving the way for its own eventual destruction.
At issue in Buckley were the 1974 amendments to the Federal Election Campaign Act (FECA), adopted in light of the Watergate scandal and Richard Nixon’s 1972 presidential campaign. These amendments called for contribution limits on individuals and political action committees, and expenditure limits on campaigns and political entities such as parties. Yet for the most part, most of the law never went into effect. In January 1976, the Supreme Court invalidated much of it, articulating a framework of legal analysis that persists to this day.
The core of the Buckley analysis was simple. The “Act’s contribution and expenditure limitations both implicate fundamental First Amendment interests.” At no point in Buckley did the Court ever say, “Money is speech.” Instead, it was more ambiguous, raising First Amendment concerns that the use of money was neither pure conduct nor pure speech and that money was linked to free expression, especially when it came to political expenditures. The Court offered a vague free speech rationale for protecting the role of money in politics, and it then provided an equally vague discussion of when its regulation would be permitted. The Court eschewed promoting equality as a compelling interest justifying restrictions on money, settling on preventing corruption and its appearance as reasons for limiting contributions, but not so for expenditures.
The problem here is that the Buckley rules were never clear. How is money related to speech? What is corruption or its appearance? Is it possible to draw lines between political contributions and expenditures? Who is entitled to speak with money? All these are vague legal doctrines and over time, opponents of campaign finance reform have exploited ambiguity, perhaps correctly arguing that there was no principled way to draw lines that separate free speech from conduct.
Court cases dating back to Burger and Rehnquist, such as First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), FEC v. National Right to Work Commission, 459 U.S. 197 (1982), and Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996), gradually chipped away at money regulations. The Roberts court fully exploits the failures of the current regulatory regime under Buckley to provide satisfactory answers to the exact constitutional status of money in politics. From its early days, the Roberts court has steadily chipped away at campaign finance regulations. It did that in Randall v. Sorrell, 548 U.S. 230 (2006), Davis v. Federal Election Commission, 554 U.S. 724 (2008), Federal, Election Commission v. Wisconsin Right to Life Committee, 551 U.S. 449 (2007), Citizens United v. Federal Election Commission, 558 U.S. ___ (2010) and most recently in McCutcheon v FEC, 572 U.S. ___ (2014). McCutcheon is remembered as the decision that struck down aggregate contribution limits. But its deeper legal importance is exactly as Justice Breyer wrote in his dissent in that it significantly narrowed the concept of what corruption means for the purposes of establishing a compelling governmental interest to regulate political contributions.
Look to see the Roberts Court expand on its crabbed notion of corruption. A narrowed concept of corruption will be used eventually to invalidate individual contribution limits. The Court will no doubt first reject the appearance standard as vague and not as demonstrating real corruption. The next step will then be to argue that current standards to regulate real corruption are overinclusive–what is real corruption unless one can show real bribery? Conversely, the Court could argue that any form of campaign contribution limit serves to chill speech, amounting to a form of censorship.
In either scenario, either the Court will have de facto ruled all contributions limits unconstitutional because there is no real evidence compelling enough to justify restrictions, or it will rule unequivocally that money is speech and therefore all limits on contributions violate the First Amendment. Barring some change in Court personnel, this ruling will come within a couple of years as critics exploit weak laws, building new precedents to eventually overrule Buckley and with that, all limits on money in politics.