APPENDIX 1.

WHAT IF... BUCKLEY WERE

OVERTURNED?

Alan B. Morrison*

On January 30, 1976, the Supreme Court issued its historic decision in Buckley v. Valeo,' which has set the constitutional contours of debate about campaign finance reform ever since. Many of those who would like to see the campaign finance laws changed have been frustrated by the parts of Buckley that struck down, under the First Amendment, limits on expenditures by candidates and on independent expenditures by others. In particular, they object to the portions of Buckley that treat the spending of money as equivalent to speech for First Amendment purposes and to the Court's rejection of Congress' imposition of limits on the amount of money that can be spent by candidates on their own behalf and by individuals and political committees independently of any candidate. They believe that it is necessary to overrule those parts of Buckley in order to achieve meaningful change in the financing of elections for public office in this country.

The purpose of this essay is not to debate whether Buckley was properly decided (although it is impossible to skirt the question entirely), nor whether it is necessary to overrule it in order

Mr. Morrison is an attorney with the Public Citizen Litigation, which he cofounded with Ralph Nader in 1972. Funding for this essay was provided by the Florence and John Schumann Foundation. The research assistance of Remi Ratliff, J.D. University of Texas 1996, was invaluable. As always, the comments of my colleague and friend David Vladeck were insightful on matters great and small. Joshua Rosenkranz, Robert Stern, Kathleen Sullivan, and Morton Halperin read an carly version and provided useful feedback. The views expressed are, in the end, my responsibility and no one else's. A prior, condensed version of this essay appeared in the January-February 1998 issue of The American Prospect.

1. 424 U.S. 1 (1976).

2. Some advocates of campaign finance reform believe that a constitutional amendment is the best way to overrule Buckley. That approach raises issues about how a constitutional amendment would fit with the remainder of First Amendment jurisprudence and whether creating special rules for election expenditures is an appropriate subject for a constitutional amendment. Those issues are beyond the scope of this paper. See The Constitution Project “Great and Extraordinary Occasions," Developing Guidelines for Constitutional Change (The Century Foundaton Press, 1999).

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to reform our political system.' Rather, the purpose is to explore what effect overruling Buckley would have on other related areas of First Amendment jurisprudence, an issue which has received almost no attention. Under our system of constitutional adjudication based on precedent, it is nearly impossible to overrule a single decision-especially one as seminal as Buckleywithout significant ripple effects on both the precedents on which it was based and the cases that have subsequently cited it. Therefore, this analysis will consider both the cases on which Buckley relied to reach its conclusions, and those which have relied on Buckley itself.

The paper begins with a discussion of the parts of Buckley on which the critics have focused. It describes the Court's reasoning and the precedent on which it relied to reach its conclusions. Next it considers the impact that overturning the expenditure rulings in Buckley would have on those authorities. The remainder of the paper then analyzes other subject areas beyond campaign finance reform where Buckley has had a major impact-commercial speech, compulsory dues and fees, associational rights, fundraising activities, and non-electoral political speech-and attempts to assess what would happen in these areas if Buckley were overruled.

A word about methodology. Our principal means of locating the areas in which Buckley has played a significant role was to examine the cases citing the relevant portions of Buckley. Since Buckley is long and is frequently cited, we limited our search to decisions of the United States Supreme Court, the federal Courts of Appeals, and the highest courts of the twelve largest states. In addition, while writing this essay, I realized that there are a number of cases that do not cite Buckley itself but where Buckley's influence is nevertheless clear. The reason is that Buckley is often the first in a series of cases, and once the law advances beyond a certain point, more recent decisions are cited as stronger precedents than Buckley. Given this phenomenon of the non-citation of Buckley, there may well be other areas of the law where Buckley has had a significant influence; those areas, however, could only be located by shepardizing not only Buckley, but all its progeny, a task beyond our limited resources. However, where we were aware of significant cases, or lines of

3. Clearly some reforms can go forward with Buckley intact. An Act to Reform Campaign Finance, 117 Maine Legislature, Initiated Bill 5, LD 1823 (Nov. 5, 1996) (adding Chapter 4, Title 21, "The Maine Clear Election Act”).

1999]

OVERTURNING BUCKLEY

cases' which built on Buckley without citing it, we have included those as well.

. I. THE BUCKLEY DECISION.

After a series of campaign scandals in the 1972 election, including but not limited to the fundraising that contributed to Watergate, Congress took decisive action. It saw the problem in two parts: first, some people were making large contributions to candidates and parties, which at least gave the appearance of buying favors; second, races were considered to be too expensive to enable ordinary citizens to run for office, and some people, with their own money or with access to money from others, were thought to have too much influence, regardless of the source of the money or whether it was raised in large or small amounts. Thus, the Federal Election Campaign Act of 1974 ("FECA")' set limits on how much money an individual or a political action committee ("PAC") could give to a candidate and how much PACs, individuals, and candidates could spend with lawfully raised money. FECA had a number of other features, but for these purposes, only its expenditure and contributions limitations are relevant.

The lengthy opinion for the Court in Buckley was not signed by any single Justice, almost certainly because the decision was a joint product. In order to have the rules established for the 1976 elections as early as possible, the case was considered on an expedited basis, with the decision issued less than three months after it was argued. The only dissenter on the expenditure issues was Justice White; however, Chief Justice Burger also dissented in part, because he would have invalidated more of the statute than the majority, also on First Amendment grounds.

When campaign finance reformers speak of overruling Buckley, they do not mean the entire opinion. Indeed, they very much like the part which upholds the authority of Congress to control the size of contributions that individuals can make to candidates ($1,000 per election) and that PACs can make to candidates ($5,000 per election). And they also approve of the ruling that it is constitutional to condition receipt of federal benefits on an agreement to abide by reasonable conditions relating to campaign spending.

4. See notes 21-30.

5. 2 U.S.C. § 431 et seq. (1994).

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Rather, their objections are focused on the limits on expenditures, which in turn have several elements: (1) the overall amount that a candidate may spend from funds lawfully raised, principally from others; (2) the amount that an individual may spend on his or her own candidacy; and (3) the amount that an individual or a PAC may spend in support of, or opposition to, a candidate, but independent of that candidate or the candidate's opponent.

All of the Court's holdings have a common thread and a common rationale: in the context of political elections in the last quarter of the twentieth century, "virtually every means of communicating ideas in today's mass society requires the expenditure of money." This conclusion is often referred to as the notion that "spending money is the equivalent of speech in a political context for purposes of the First Amendment," in contrast to treating campaign spending as pure conduct which can be regulated with less judicial scrutiny.

In analyzing the issues, the Court relied on two related sets of rights-the right of the speaker who wishes to make his or her opinions heard, and the rights of individuals to associate together in order to make a greater impact than is possible if each person proceeded on his or her own. The Court saw these as two mutually reenforcing rights, especially in the context of political expression regarding elections, which the Court recognized as one of the central purposes animating the First Amendment.

8

The Court's rationale proceeded roughly as follows. In United States v. O'Brien,' the Court upheld a statute forbidding the burning of draft cards. The law was challenged on the ground that draft card burning was symbolic speech and hence entitled to the highest form of First Amendment protection. However, the O'Brien Court held that the non-speech reasons to support a ban on draft card burning-the law was needed to carry out the Selective Service registration system in effect at

6. In describing the statutory scheme, the Buckley Court did not specify the amounts of the ceilings except for item 3, the limit of $1,000 on independent expenditures, but instead referred the reader to the statutory appendix. 424 U.S. at 13. That omission might have been due to the complexity of some of the limits, but it is also consistent with the Court's overall approach that it was not quarreling with Congress over a particular limit, but instead disapproved of any government-established ceilings.

7. Id. at 19.

8. Id. at 14.

9. 391 U.S. 367 (1968).