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Why Buckley v. Valeo Is
Basically Right* Eugene Volokh† 34 Arizona State Law Journal 1095 (2003)
Buckley v. Valeo[1] seems to be almost universally
reviled: People either say the Court
went too far in allowing restrictions on political contributions and
expenditures, or not far enough. I want
to do something radical, which is to say that the Court got it pretty much
right.[2] I. First Principles
A. The Basic Right To Express Your Views
To begin with,
I think the Court was right to strike down the limit on independent expenditures,
because that limit infringed core First Amendment rights. Say you wanted
to put a modest ad in a medium-sized newspaper saying “I’m outraged by Bush’s
stand on abortion, and urge everyone to throw him out of the White House.” Under the Federal Election Campaign Act
(FECA),[3] it
probably would have been a crime for you to express yourself in this
way. Placing an ad in any decent-sized
newspaper would almost certainly cost more than $1000, the expenditure limit
imposed by FECA.[4] FECA would likewise have barred you from
printing up a couple of hundred T-shirts, spending over $1000 to set up a
professionally-designed Web site, and of course buying radio or television
time. The law didn’t just ban “independent
expenditures” in the abstract—it banned people from speaking when that speech was modestly expensive (as effective
speech often is). But isn’t this
restriction justified by the need to give “each citizen a fair and reasonably
equal opportunity to command attention for [their] own views”?[5] Well, Barbra Streisand, by endorsing a
candidate and “donating” to that candidate her name and all the publicity that
goes with it, can surely command more attention than I can. So can the editorial board of The New York Times. So can journalists who write about
candidates for the Times. But this doesn’t justify barring Barbra
Streisand, the Times editors, or the Times reporters from speaking this way. Their rights
to speak should not be sacrificed in the name of equality; and that includes
their rights to speak when the speech requires spending money. Times
editors and reporters, for instance, speak by using valuable newspaper
space. Under any sensible accounting
system, the value of Streisand’s endorsement, or of several column-inches in a
leading newspaper, would be worth much more than $1000. Each of us should likewise have the same
right to spend our assets (which may be money rather than fame or access to the
newspaper page) to express our views. Actually, many
rationales for restricting campaign-related speech would justify restricting
newspapers and magazines. Professor
Raskin,[6] for
instance, commented that corporations should have no constitutional or
statutory right to spend money to advance partisan political agendas.[7] Likewise, the League of Women Voters
Education Fund’s proposal would bar corporations from spending money to
distribute “[a]ny paid communication with the general public that uses a
federal candidate’s name or likeness within 90 days of a primary or of a
general election.”[8] Most papers and magazines are owned by
corporations. I suspect
these commentators would limit their proposals to somehow exclude corporations
that are part of the media, just as FECA did,[9]
but what would be the principled reason for this? If The New Republic is entitled to spend money
to advance its partisan political agenda, why shouldn’t other corporations be
entitled to do the same?[10] The Internet
makes special treatment for the media especially problematic. Am I a media entity if I create a Web
page? Most corporations have Web pages;
does this make them media corporations?
And if they or I buy an ad in a newspaper, or buy space on a billboard,
aren’t we at least temporary media entities, just as the newspaper corporation
or billboard corporation are permanent media entities? These campaign
finance proposals don’t just sacrifice free speech in the name of equality—they
subordinate the free speech of some (non-media corporations and unknown
individuals), while protecting the speech of others (the media and
celebrities). This does not seem either
libertarian or egalitarian. B. The Classroom/Courtroom Analogy
Some respond
that the government equalizes people’s voices in many contexts: in the
classroom, the courtroom, or a law school debate, for example.[11] But when the government is acting as educator
or proprietor, it is entitled to control what is said. In the classroom, the teacher is in control;
the teacher can interrupt a student’s comments to interject an opposing
viewpoint, or for many other reasons.
The teacher can even refuse to call on the student in the first
place. Likewise, in the courtroom, the
judge is largely in control. But when the
government is acting as sovereign, it isn’t supposed to be in control of public
debate; there, each individual is in charge of deciding what he chooses to
say. In public, you can say “Fuck the
Draft” or buy newspaper ads supporting one litigant or another. That you would not be able to do the same in
class or in court is irrelevant to your rights as a private citizen outside
government-managed property. Unless
we’re willing to dramatically restrict First Amendment protection across the
board, we must recognize that the government acting as sovereign has
dramatically narrower powers than the government acting as educator or proprietor. II. Nixon v. Shrink
Missouri Government PAC
So those are
what I see as the first principles of the First Amendment and campaign-related
speech. Let me try to elaborate them by
focusing on three opinions in one of the Court’s recent campaign speech cases, Nixon v. Shrink Missouri Government PAC.[12] A. Justice Breyer and Constitutional Tension
I start with
Justice Breyer’s opinion, which would support broad restrictions on the grounds
that democracy and equality are themselves interests of constitutional
stature: “[T]his is a case,” Justice
Breyer tells us, “where constitutionally protected interests lie on both sides
of the legal equation.”[13]
This is a beguiling argument—but, like the classroom/courtroom analogy, I think
it leads to a place where few of us would want to go. As I suggested in another article,[14] let’s compare Justice Breyer’s
argument in Shrink Missouri to
Justice Frankfurter’s opinion in Dennis
v. United States,[15]
which of course was written to justify a ban on Communist advocacy:
Both arguments
are eloquent and powerful, but both would yield a First Amendment jurisprudence
that’s far less speech-protective than the one we have today. After all, the Constitution is full of
“values” and “interests.” It talks not
just of democracy or equality, but also the war power, private property,
federalism, religious freedom, and more.
If democracy or equality interests, coupled with “defer[ence] to
legislative judgments,” can trump free speech, then so can these others. In fact, this
“constitutional tension method,” as I call the rhetorical device employed by
Frankfurter and Breyer, has indeed been used in the past to justify all sorts
of speech restrictions: the Sedition Act, the World War I-era bans on antiwar
advocacy, bans on advocacy of violent revolution, bans on bitter criticism of
religion, bans on public commentary about pending court cases, bans on racist
and sexist advocacy, and more.[26] If it is revived in the campaign speech
contexts, it will gain power in the other contexts too.[27] Even those who support restrictions on
campaign-related speech might hesitate to endorse a First Amendment exception
that’s as potentially broad as this one. B. Justice Stevens and “Money Isn’t Speech”
Let me turn
now to Justice Stevens’ opinion, which rests on the old saw that money isn’t
speech.[28] Well, of
course money isn’t speech. But so
what? The question is not whether the
money is speech, but whether the First Amendment protects your right to speak using your money. After all,
money isn’t lawyering, but the Sixth Amendment secures criminal defendants’
right to hire a lawyer. Money isn’t
contraception or abortions, but people have a right to buy condoms or pay
doctors to perform abortions. Money
isn’t education, but people have a right to send their children to private
schools. Money isn’t speech, but people
have a right to spend money to publish The
New York Times. Money isn’t
religion (at least not for most of us), but people have a right to donate money
to their church. A law that
says “You may not spend your money to [hire a lawyer/get an abortion/educate
your children]” is an unconstitutional burden on the constitutional right
because it (1) singles out a constitutional right for a special burden, and (2)
in practice makes it much harder to exercise the right. The same must be true for a law that says
“You may not spend your money to [engage in speech/engage in expressive
association].” Money isn’t speech. But restricting speech that uses money is a
speech restriction. C. Justice Thomas and Content-Neutral Donation Restrictions
Justice Thomas
criticizes Buckley from the other
side: even contribution limits, he reasons, are unconstitutional, for the same
reason as expenditure limits. But here
too I want to defend Buckley’s
result, if not quite its reasoning. Contribution
limits, I think, are properly seen as something close to a content-neutral limit
on conduct—the conduct of giving gifts to government officials. I can’t give a sitting Representative or
Senator $1000 for his election campaign, but I also can’t give it to him just
for his own pocket.[29] Under the
analysis applicable to simple content-neutral speech restrictions, these restrictions
are constitutional. I have given the
details elsewhere,[30]
but the basic argument is this: 1. The restrictions are content-neutral,
because their justification is unrelated to the content of any communication
that is done with the money. In fact,
the justification applies equally well even if the candidate does not use the
gift for communication at all. 2. They serve an important government interest
in preventing quid pro quo corruption. 3. They are not overinclusive with regard to
the interest, because any substantial gift to a government official has the
potential to be a hidden bribe; many such gifts end up not being bribes, but
it’s impossible to determine up front which are corrupting and which are not. 4. They leave open ample alternative channels
for people to communicate, precisely because they leave people free to spend
money themselves to praise the candidate or advocate his election. Justice Thomas
disagrees, reasoning that people should be able to decide for themselves
exactly how they want to support their favorite candidate—via an independent
expenditure or via a contribution.[31] But the Court has generally let the
government limit people’s means of expressing themselves, when this is done
through content-neutral restrictions.[32]
You can communicate through leaflets or newspapers, but not through
sound-trucks, loud concerts, or burning draft cards.[33] Likewise, you can communicate through independent
spending, but not through large gifts to candidates. So I agree
with Justice Thomas that independent expenditure limits are unconstitutional because
(and here I return to the first principles) people do have the basic First
Amendment right to express their views, and independent expenditure limits
restrict this right without leaving open
ample alternative channels. But the
government may regulate people’s behavior—even if the behavior facilitates
speech—in order to diminish the risk of corruption, if the government does so
without regard to the communicative impact of the behavior, and if it leaves
open alternative channels. Contribution
limits fit within this test, because independent expenditures offer an ample
alternative channel (though not a perfect channel) for speaking.[34] Buckley and Nixon thus by
and large got the First Amendment analysis right. (There are interesting arguments why contribution limits, even if
constitutional, are a bad idea, but that is outside the scope of my analysis.) Independent expenditures must remain
constitutionally protected; campaign contributions may be restricted. Lots of people on both sides dislike this
result, but despite twenty-seven years of criticism, it remains surprisingly
persuasive. * Editor’s note: This article is based on the author’s remarks during a panel
discussion on February 16, 2001, presented as part of the Symposium on the Federal Election Laws—Campaign Finance: Free Speech,
Soft Money, Hard Choices, sponsored by the Arizona State University College
of Law and the American Bar Association’s Standing Committee on Election Law. † Professor of Law, UCLA School of
Law (volokh@law.ucla.edu). [1]. 424
U.S. 1 (1976). [2]. Nixon
v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) (upholding Missouri statute
limiting campaign contributions under First Amendment strict scrutiny). [3]. Federal
Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263
(1974) (codified in scattered sections of 2 U.S.C. and 18 U.S.C.). [4]. 2 U.S.C. § 441a(a)(1)(A) (2000). [5]. See, e.g., Ronald Dworkin, The
Curse of American Politics, N.Y.
Rev. Books, Oct. 17, 1996, at 23 (“[E]ach citizen must have a fair and
reasonably equal opportunity not only to hear the views of others as these are
published or broadcast, but to command attention for his own views.”). [6]. Jamin
Raskin, Symposium, Federal Election Laws—Campaign Finance:
Free Speech, Soft Money, Hard Choices (Feb. 16, 2001) (remarks) (transcript
available at Arizona State University College of Law) (suggesting that a ban on
“direct[] political spending” by corporations should be constitutional). [7]. Id. [8]. League of Women Voters Education Fund, 5 Ideas for Practical Campaign Reform 5
(1997). [9]. 2
U.S.C. § 431(9)(B)(i) (2000) (excluding “any news story, commentary, or editorial
distributed through the facilities of any broadcasting station, newspaper,
magazine, or other periodical publication” from the definition of
“expenditure”). [10]. I
therefore disagree with Austin v.
Michigan State Chamber of Commerce,
494 U.S. 652, 679 (1990), largely for the reasons given in Justice Scalia’s dissent. [11]. Cf., e.g., Paul Eckstein, Symposium, Federal Election Laws—Campaign Finance: Free Speech, Soft Money, Hard
Choices (Feb. 16, 2001) (remarks) (transcript available at Arizona State
University College of Law) (“And, in fact, the government routinely
limits and equalizes speech in official proceedings. Even in this, if you could call this an official proceeding. Nobody would think it violates the First
Amendment, I take it, that Weinstein has told us we each have 15 minutes. And if I say no I want to speak for a half
hour he will tell me to shut up and he will not be violating the First
Amendment when he does that. Even
closer to elections, I think, [is] what happens in courts. . . . Courts have . . . equalized the number of
lawyers each side could have, the time they can talk in oral argument, the
number of briefs people can file, the size of those briefs. Does anybody think that’s [a] violation of
the First Amendment? I don’t think
so.”). [12]. 528
U.S. 377 (2000). [13]. Id. at 400 (Breyer, J., concurring). As I’ll explain in Part III, I actually do
not disagree much with Justice Breyer’s bottom line on contribution limits, the
issue that was specifically at stake in Nixon
v. Shrink Missouri. Justice Breyer,
though, made clear that his analysis also applies to restrictions on
independent expenditures, and there I think his framework would reach results
that are quite unsound. See id. at 401 (stressing the
significance of the government interest in “democratiz[ing] the influence that
money itself may bring to bear upon the electoral process,” an interest that
has long been used as an argument for restrictions on independent
expenditures); id. at 402 (quoting
Buckley v. Valeo, 424 U.S. 1, 48–49 (1975)) (defending the notion that
government may sometimes restrict the speech of some “in order to enhance the
relative voice of others,” a notion that has likewise long been used to defend
restrictions on independent expenditures); id.
(arguing that Buckley should be
reinterpreted to “mak[e] less absolute the contribution/expenditure line”); id. at 405 (suggesting that if Buckley “denies the political branches
sufficient leeway to enact comprehensive solutions to the problems posed by
campaign finance,” then Buckley—presumably
referring to Buckley’s protection of
independent expenditures—“would [have to be] reconsider[ed]”). [14]. Eugene
Volokh, Freedom of Speech and Speech
About Political Candidates: The Unintended Consequences of Three Proposals, 24 Harv. J.L. & Pub. Pol’y 47, 48–57 (2000). The remainder of this Part liberally borrows
from that article. [15]. 341
U.S. 494, 517 (1951) (Frankfurter, J., concurring). [16]. Shrink
Missouri, 528 U.S. at 399–400 (Breyer, J. concurring). [17]. Id. at 400. [18]. Id. [19]. Id. [20]. Id. at 401–02 (Breyer, J., concurring). [21]. Dennis v. United States, 341 U.S. 494,
519 (1951) (Frankfurter, J. concurring). [22]. Id. at 544. [23]. Id. at 521. [24]. Id. at 528. [25]. Id. [26]. See Eugene Volokh, Freedom of Speech and the Constitutional Tension Method, 3 U.
Chi. L. Sch. Roundtable 223 (1996) (describing examples of each of these
uses of the constitutional tension argument). [27]. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 541 (2001) (Rehnquist,
C.J., dissenting) (using the constitutional tension as an argument in favor of
punishing newspapers’ publications of conversations that were illegally
intercepted by unrelated third parties). [28]. Nixon
v. Shrink Mo. Gov’t PAC, 520
U.S. 377, 398 (2000) (Stevens, J., concurring); see also Volokh, supra
note 14, at 57. [29]. Volokh,
supra note 14, at 62 & n.48. [30]. Id. at 60–69. [31]. Shrink Missouri, 528 U.S. at 425 (Thomas, J., dissenting). [32]. Buckley, 424 U.S. 1, 259 (1976). [33]. See Kovacs v. Cooper, 336 U.S. 77, 89
(1949) (holding that you can use newspapers and leaflets, but barring
soundtrucks from broadcasting in a loud and raucous manner); Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989) (upholding a volume restriction
on concerts); United States v.
O’Brien, 391 U.S. 367, 376 (1968) (sustaining a conviction for burning a draft
card). [34]. See
Volokh, supra note 14, at 64–66 (responding to arguments that
independent expenditures are not an adequate alternative to contributions). |