"The Nine Lives of Buckley v. Valeo"

I have just posted this draft on SSRN (forthcoming, FIRST AMENDMENT STORIES, Richard W. Garnett and Andrew Koppelman, eds., Foundation Press 2010). Here is the abstract:

Buckley v. Valeo has been the leading case governing the constitutionality of campaign finance laws in the United States since the Supreme Court decided it in 1976. But it is an unlikely candidate for influence and longevity. The decision upheld federal limits on campaign contributions but it struck down federal limits on campaign spending as violating the First Amendment. It was a compromise opinion written by a committee of Justices; three of the eight Justices deciding the case dissented from parts of its core holdings on contributions and expenditures. Over the years, there have been Court majorities ready to overturn parts of Buckley, though Buckley has remained good law because the Justices have not agreed on which parts to overturn and Justices in the Court's center have refused to overturn any of Buckley's central tenets. The Court's later campaign finance cases have vacillated wildly in their treatment of the First Amendment issues--yet each of these cases has claimed fidelity to Buckley. More than one commentator, including this author, has declared the case on the verge of death. Yet Buckley has survived.

This Chapter tells the story of Buckley v. Valeo, beginning with an examination of the legislation that prompted the litigation, the 1974 Amendments to the Federal Election Campaign Act (FECA). It situates the legislation and litigation in the context of the early 1970s, a time when there was increasing public distrust of politicians and social turmoil, driven especially by controversy over the Vietnam War, changes wrought by the civil rights and women's rights movements, and a series of political scandals culminating with Watergate and the resignation of President Richard Nixon.

The story of Buckley v. Valeo's origins turns out to be two stories, both drawn from the themes of that era. One story is that of good government reformers, especially the group Common Cause, who adopted a legislation and litigation strategy aimed at rooting out corruption among politicians. The other story is that of skeptics of government power, including the American Civil Liberties Union, conservative United States Senator (and now D.C. Circuit judge) James Buckley and liberal United States Senator Eugene McCarthy. They mistrusted campaign finance regulation, which they saw as a form of incumbency protection and government censorship. They filed the Buckley litigation, challenging the core provisions of the FECA, to prevent what they viewed as government tyranny.

The chapter then traces Buckley through the litigation process. The D.C. Circuit, sitting en banc, upheld the contribution and spending limits on both anticorruption and political equality grounds. The Supreme Court too divided on the law's constitutionality, and it produced a Solomonic unsigned opinion that left both sides in the litigation partly unsatisfied.

The Chapter concludes with the unlikely story of how Buckley has survived as a precedent, and looks into the future of campaign finance jurisprudence. In the last decade, the current Supreme Court has moved from its period of greatest deference toward campaign finance legislation to its period of greatest skepticism. All the while, the Court has (at least formally) adhered to the Buckley precedent, perhaps more as a result of political compromise by Court centrists than coherent legal reasoning. However, change could be on the way. The Supreme Court's most recent significant campaign finance decision, Citizens United v. Federal Election Commission, struck down spending limits imposed on corporations and labor unions. Citizens United overruled earlier cases upholding such limits; unsurprisingly, both the earlier cases and Citizens United relied upon Buckley. The Court in Citizens United indicated great skepticism about the constitutionality of all limits on campaign financing, putting new pressure on the Court to overrule that part of Buckley upholding contribution limitations. But do not count on Buckley being overruled; it may last longer than the readers of this chapter.

Comments welcome!

Posted by Rick Hasen at April 20, 2010 03:30 PM