The Supreme Court and Campaign Finance

Article excerpt

The Supreme Court's 1976 decision in Buckley v. Valeo is the bete noire of campaign finance reform. In Buckley the Court essentially equated money and speech, and therefore subjected campaign finance restrictions to "rigorous" First Amendment scrutiny, rendering many reform efforts unconstitutional. Scholars have criticized the decision ever since; in 1998, NYU's Brennan Center for Justice released a petition signed by 209 law professors calling for Buckley's reconsideration.

Yet as the Supreme Court again takes up campaign finance this term, in the Dickensian-captioned Shrink Missouri Government PAC v. Missouri, the Brennan Center, Common Cause and other leading reformers have all become spirited defenders of Buckley, urging the Supreme Court to stand fast against arguments that Buckley should be overturned. What gives?

In Buckley the Court ruled that the First Amendment prohibits any limits on how much individuals and candidates may spend in connection with political campaigns, but it upheld limits on how much individuals and PACs may contribute to candidates. The reformers would like the Court to revisit the conclusion that expenditures must be unrestricted, but the Shrink case challenges contribution limits, which reformers support. The reformers want Buckley rethought, but only in one direction.

The politics of campaign finance have long divided allies and united enemies, and this case is no exception. The ACLU's brief strongly urges the Court to abandon Buckley's holding that contributions may be limited and offers as the centerpiece of its analysis an extended quotation from Justice Clarence Thomas, definitely not a "card-carrying member." That brief in turn prompted a response brief from most of the ACLU's former presidents and directors, who ask the Court to maintain Buckley's permissive stance toward contribution limits.

The Shrink decision is almost certain to be reversed. The Court of Appeals for the Eighth Circuit struck down a Missouri limit on campaign contributions virtually identical to the contribution limit upheld in Buckley, on reasoning only a lawyer could love: that the state failed to prove that unrestricted campaign contributions created an appearance of corruption. Some facts are so obvious they need no proof. As the Supreme Court recognized in Buckley, the appearance of corruption is "inherent" in a system of unlimited contributions.

The broader issue, however, is that the system of campaign finance wrought by Buckley is a disaster. Buckley struck a compromise, ruling that expenditures must be unlimited while contributions may be capped, but in doing so it created a system shot through with unintended consequences. …