This past weekend marked the 43rd anniversary of the oral arguments in Buckley v. Valeo, the 1976 Supreme Court case that set the foundation for four decades of problematic and often unworkable jurisprudence impeding society’s ability to put limits on the influence of big money in elections.
But on November 10, 1975, when the lawyers came to the lectern to argue the case in the Supreme Court (listen here), all that was in the future. The Court of Appeals for the D.C. Circuit had issued a persuasive ruling upholding nearly every provision of the recently-passed Federal Election Campaign Act against a First Amendment challenge, and the Supreme Court’s recent voting rights cases establishing the “one person, one vote” principle suggested that the Court would view the law’s central provisions – contribution limits, spending limits, public financing, and disclosure – favorably.
The Court’s final opinion, though, was largely disappointing. It upheld contribution limits, but only for the limited purpose and extent of fighting “corruption.” And it struck down limits on campaign spending by individuals and political campaigns entirely. (It would take the Court another 34 years to strike down limits on spending by corporations and labor unions, in the 2010 Citizens United decision.) The Court based this decision on the incorrect logic that the First Amendment’s guarantee of freedom of speech necessarily includes a guarantee to spend unlimited money.
There are some reforms that can be accomplished under Buckley, such as contribution limits (as long as they aren’t “too low“) and public financing. But fundamental reform, limiting the financial influence of billionaires, is very difficult under Buckley. In the long run, the best solution is a constitutional amendment. In the meantime, the Supreme Court is unlikely to overturn Buckley any time soon. So we need to focus on making progress where we can, like challenging super PACs (created not by the Supreme Court, but by lower court decisions) and challenging political spending by foreign-influenced corporations.
Examining a Constitutional Amendment to Restore Democracy to the American People (testimony by John Bonifaz to U.S. Senate Committee on the Judiciary, June 3, 2014)