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Passing the Buckley

TRB From Washington

Buckley v. Valeo, the Supreme Court’s attempt to reconcile campaign finance regulations with the First Amendment, was dubious from the day it was decided in 1976. With memories of Watergate still fresh, the Burger Court assumed that preventing corruption of individual candidates by wealthy donors was the central evil that Congress had a right to avoid. But in the 1990s, the parties, rather than the plutocrats, became the stock villains of the reform drama. As the parties changed their fund-raising practices to circumvent the laws that Buckley upheld, they transformed themselves into fund-raising machines. And in the process, they further undermined the constitutional logic of Buckley itself.

To many people, this is a good reason to abandon not merely Buckley but the whole project of campaign finance reform. But, in fact, it’s only by revisiting Buckley’s obsolete premises that successful reform might come to pass.

Buckley was based on two questionable premises. First, the Court held that preventing corruption is the only constitutionally compelling reason for limiting political spending. Second, the Court said that expenditures by individuals, groups, and candidates on behalf of particular campaigns were less likely to raise the specter of corruption than contributions to candidates by individuals or groups.

The distinction between contributions and expenditures, criticized even when it was announced, soon became incoherent as fund-raisers found ways around the new restrictions. In 1979, Congress carved out an exemption from contribution limits for “soft money” targeted at state and local parties. This was supposed to strengthen the faltering parties without raising the specter of corruption. So what if an individual could donate $100,000 to the Democrats? This wouldn’t corrupt a democratic president, since the party could only give a legally prescribed amount to the president’s campaign.

It didn’t take parties long to realize that they could spend the money on behalf of candidates without actually giving it to the candidates. Soon, the parties became full-time political action committees, whose primary job became raising money from wealthy donors, and then channeling that money into advertisements and voter education campaigns--campaigns that allegedly had nothing to do with specific candidates but were obviously designed to influence elections. And the candidates followed suit, turning themselves into full-time fund-raisers.

One way out of this morass is to limit certain types of party expenditures as well as contributions. But even limited spending caps are unlikely to pass muster with the current Court. In 1996, the Court in Colorado Republican Federal Campaign Committee v. FEC struck down limits on expenditures by parties that weren’t coordinated with particular candidates. Three justices--Stephen Breyer, Sandra Day O’Connor, and David Souter--seemed inclined to preserve Buckley’s analytical structure. They indicated a willingness to uphold limits on soft money contributions to parties, or party spending that’s coordinated with the candidates, in the interest of avoiding corruption. But they argued that “independent” spending by parties poses no greater threat of corruption than “independent” spending by candidates.

Four justices--Clarence Thomas, Anthony Kennedy, William Rehnquist, and Antonin Scalia--seemed willing to throw out Buckley altogether. The interests of the parties and the candidates are indistinguishable, Justice Kennedy declared, and therefore limits on coordinated as well as uncoordinated campaign spending are unconstitutional. Justice Thomas went even further. In a part of his opinion joined by no other justice, he said that caps on campaign contributions as well as campaign expenditures should be struck down as government interference with free speech.

Justice Thomas’s notion that parties can’t corrupt their candidates would seem to make it impossible to close the soft money loophole. But, as Columbia Law professor Richard Briffault argues, Thomas is on shaky ground when he dismisses the danger that parties might become conduits for the corruption of candidates by wealthy donors. Thomas argues that the expansion of the parties would dilute the influence of wealthy donors. But the recent fund-raising scandals show that Thomas is engaging in wishful thinking.

Finally, there are John Paul Stevens and Ruth Bader Ginsburg, who are most inclined to defer to Congress when it comes to reform. In his dissenting opinion in the Colorado case, Stevens questioned Buckley’s notion that only Congress’s interest in avoiding corruption was compelling enough to justify spending caps. Congress, both Stevens and Ginsburg asserted, also has an “important interest in leveling the electoral playing field by constraining the cost of federal campaigns.” This is a venerable argument, but the idea that government can silence the speech of some to enhance the speech of others is, as the Buckley Court recognized, highly controversial.

So there’s one group of justices willing to uphold Buckley but unwilling to abandon the archaic distinction between contributions and expenditures; a second group willing to overturn Buckley but unwilling to recognize the fear that the parties have become conduits for corrupting their candidates; and two dissenters willing to justify limits on the questionable ground that government has an interest in purifying the content of political debate. Is there a constitutional alternative that has a chance of getting five votes?

Maybe. Not long ago in the Columbia Law Review, Vincent Blasi of Columbia Law School called on the Court to recognize that Congress has a compelling interest in “candidate time protection.” The Constitution guarantees a “republican form of government”; but, as Blasi argued, and as President Clinton’s relentless fund-raising schedule confirms, “the quality of representation” suffers when lawmakers have to spend more time with donors than constituents.

Blasi thinks that Congress’s interest in protecting the time of candidates should authorize it to limit the overall amount of money that can be spent on an election campaign. Jay Rockefeller might reply that since he doesn’t have to spend any time raising money, he would save more time if there were fewer restrictions. But since most politicians aren’t Jay Rockefeller, Blasi’s proposal should authorize more meaningful limits on party expenditures than Buckley allows.

The idea that “candidate time protection” is a good enough reason to limit campaign spending might appeal to five justices. It would leave President Clinton more time to run the country. But unless Congress resurrects campaign finance reform, we’ll never know for sure.

This article originally ran in the October 27, 1997, issue of the magazine.