Buckley v. Valeo as Superprecedent?
Clues from Wisconsin and Vermont
Allison R. Hayward*
[W]e are talking about speech, money is speech, and speech
is money, whether it be buying television or radio time or
newspaper advertising, or even buying pencils and paper
and microphones. That’s the—that’s certainly clear, isn’t it?
Comments of Justice Potter Stewart during oral argument in Buckley v. Valeo, November 14, 1975.1
I think it was Holmes who said, once you admit the necessity
of drawing a line, you can always find something on one side or the other. It’s quite different between $1,000 and
$2,000 or 100 feet and 75 feet and advocacy with respect to
an election and advocacy with respect to an issue. It’s an
entirely different quality of a distinction.…
Comments of Chief Justice Roberts during oral argument in Wisconsin Right to Life v. FEC, January 17, 2006.2
I thought what [Buckley] said and what many of our other
cases say, with regard to expenditures in particular, is that
you’re not talking about money here. You’re talking about
speech. So long as all that money is going to campaigning,
you’re talking about speech. And when you say you don’t
need any more speech than this, that’s a very odd thing for
a United States government to say. Enough speech. You don’t
* Assistant Professor of Law, George Mason University School of Law. I would like to acknowledge generous summer 2006 support from George Mason University School of Law.
1 Transcript of Oral Argument at 67, Buckley v. Valeo, 424 U.S. 1 (1976) (No. 75–436). 2 Transcript of Oral Argument at 49, Wisconsin Right to Life v. FEC, 126 S. Ct. 1016 (2006) (No. 04–1581).