Be Careful What You Wish For

By Dorf, Michael C. | Constitutional Commentary, Winter 1999 | Go to article overview

Be Careful What You Wish For

Dorf, Michael C., Constitutional Commentary

Constitutional law, like law generally, is hardly autonomous. It largely reflects past political events as well as past and present material and social conditions. Thus, to trace the driving forces in our constitutional history, we should pay less attention to such matters as the adoption of particular phrases or the outcome of contested cases than to such events as the invention of the cotton gin, the assassination of President Lincoln, and the rise of the corporation.(1) Nonetheless, we cannot discount the impact of such second-order phenomena as text, cases, and appointments. Doctrinal structures in a body of law that develops on a case-by-case basis will obviously exhibit considerable path dependence. Reasoning by analogy from clear-cut case 1 to intermediate case 2 to not-at-all-clear-cut case 3 will often produce a different result from considering case 3 directly. Compounded over time, small perturbations have large effects. Indeed, this phenomenon is omnipresent, so that it seems unfair sport to ask how our constitutional landscape would differ had, for example, Oliver Wendell Holmes, Jr., been killed on a Civil War battlefield, as he nearly was (three times). The challenge posed by this symposium is to identify dramatic changes that follow quickly on the heels of a less momentous event. I take up the challenge here in the context of campaign finance.

In Buckley v. Valeo,(2) the: United States Supreme Court invoked the First Amendment's protection for freedom of speech to invalidate substantial portions of the 1974 amendments to the Federal Election Campaign Act of 1971. In the ensuing years, many prominent First Amendment liberals have publicly decried Buckley for taking too literally the metaphor of the "marketplace" of ideas.(3) On this view, Buckley erased our democracy's best effort to curb the corrupting influence of money on politics, and stands as a blockade to further efforts. However, in defense of Buckley's invocation of First Amendment principles, it can be argued that serious campaign finance limitations necessarily endanger free speech because of, among other things, "the inseverability of campaign speech from ordinary political discourse."(4) I have not studied the issue sufficiently carefully to say which side in this debate I believe to be correct. I will say, however, that the last 23 years would have unfolded rather differently had Buckley sustained rather than struck down the Federal Election Campaign Act.

Let us consider just one provision invalidated in Buckley. It provided that no Presidential "candidate may make expenditures from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year for nomination for election, or for election, to [the office of President] in excess of ... $50,000."(5) If this provision had remained in effect, it might well have altered the outcome of the 1992 Presidential election.(6) In the general election campaign that year, third-party candidate Ross Perot spent over $60 million of his own money -- more than the total amount of money spent by either of the two major party candidates--and won 19 percent of the popular vote.(7) Then-Governor Bill Clinton garnered 43 percent to President George Bush's 38 percent, and the fiscally conservative Perot probably drew more support from voters who would otherwise have cast ballots for Bush rather than Clinton. Even if one thinks Perot drew support more or less equally from the Bush and Clinton camps, "in the end, Mr. Perot probably helped Democrat Bill Clinton take the White House from President Bush. if only by distracting the public enough ... to give the Arkansas governor a chance to get back on his feet after a brutal primary season, and stirring up a call for change."(8) There is thus substantial if not overwhelming reason to believe that a different result in Buckley would have led to a second term of the Bush Presidency.(9)

A second Bush term would almost certainly have led to more progressive legislation than we saw enacted during the first Clinton term. …

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