According to When Money Talks (Berrett-Koehler Publishers, 2016) special-interest money is destroying our democratic process. But now that the Citizens United decision has thrown out campaign spending limits as abridgments of free speech, Americans want to know what they can do about it. Derek Cressman gives us the tools, both intellectual and tactical, to fight back. Cressman examines how courts have foiled attempts to limit campaign spending, details what a constitutional amendment limiting paid speech should say, and reveals an overlooked political tool concerned citizens can use to help gain the amendment’s passage. Seven times before in our history we have approved constitutional amendments to overturn wrongheaded rulings by the Supreme Court—there’s no reason we can’t do it again.
The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the first amendment.
—US Supreme Court, Buckley v. Valeo, 1976
If money is speech, as the Supreme Court says, then more money must be more persuasive speech, and those ideas with the most money behind them will tend to prevail. This is un-American.
—US Senator Barbara Boxer
When Senator James Buckley lost a political battle on the floor of the Senate in 1974, he didn’t get mad. He got even.
Senator Buckley strongly opposed the new campaign finance rules passed by Congress in the wake of Watergate. When President Gerald Ford signed the Federal Election Campaign Act (FECA) of 1974 into law, Buckley followed a great American tradition of sore losers.
But before telling that story, let’s first meet James Buckley.
James Buckley inherited a small fortune as part of his family’s oil and gas services company, Catawba, in 1958. His father, William F. Buckley Sr., founded Catawba to exploit oil and mineral rights in Venezuela and Mexico. Like oilman Fred Koch, who passed on extreme wealth and extreme politics to his sons Charles and David, Bill Buckley Sr. was heavily invested in politics as well as oil and gas. James ran for the US Senate from New York in 1968 at the urging of his well-known brother, columnist William F. Buckley Jr. Running as a member of the Conservative Party, a marginal player in New York politics, he spent little money and received 16 percent of the vote.
Buckley tried again as a Conservative Party candidate in 1970 against a sitting Republican incumbent. During a televised debate, he agreed that campaign spending should be limited, and yet he spent $1.8 million on his campaign—a huge sum at the time. James Buckley won the three-way race with 38 percent of the vote.
After the Watergate reforms, Buckley reversed his public support for campaign spending limits. Instead of backing spending limits as he had promised, Buckley personally went to court to void the law his colleagues had just passed.
Political extremes on the left and the right joined Buckley in the lawsuit, including the liberal Eugene McCarthy, the Socialist Labor and Socialist Workers parties, the American Conservative Union, and the American Civil Liberties Union (ACLU). The case became known as Buckley v. Valeo, legally pitting Buckley against Francis R. “Frank” Valeo, the clerk of the Senate. Although he won in court, Buckley lost his reelection campaign in 1976 as well as a 1980 Senate race in Connecticut. After losing decisively in the arenas of public opinion and elections, James Buckley received a lifetime appointment as a federal judge from President Ronald Reagan in 1985.
For nearly two hundred years of US history, judges had not significantly meddled with campaign finance law. State and federal laws limiting campaign spending had been on the books for more than seventy-five years prior to Buckley with little litigation.
The First Amendment did not suffer during that time.
In 1898, the Ohio Supreme Court upheld campaign spending limits and removed John Mason from office for violating the limits. In 1921, Truman Newberry was convicted for violating campaign spending limits during his 1918 race for the US Senate. The US Supreme Court overturned his conviction in the case Newberry v. United States, which held that Congress could limit spending in general elections but not during primaries and party nominations because those were private affairs. But the Court reversed this ruling in 1941 in the case United States v. Classic.
Congress passed new limits in 1925 for general election campaigns by amending the Corrupt Practices Act. These limits were not struck down by the courts, but they also were not enforced by the executive branch.
After the Watergate scandal, Congress enacted tough new limits on campaign contributions and spending. To ensure the new law would be in effect for the 1976 elections, Congress included a provision proposed by Senator Buckley for expedited legal review.
Normally a law must take effect before somebody can challenge it in court, so that there is a track record of how the law actually works for the court to consider. Not in this case. Lawyers simply fabricated claims about how they expected the law would work.
On January 24, 1975, US district court judge Howard Corcoran certified the constitutional questions involved in the case without making any effort to ascertain any facts. On August 15, an eight-judge panel of the US Court of Appeals upheld almost all of the law. The court’s logic was straightforward:
The power of Congress to regulate federal elections embraces, in our view, the power to adopt per candidate and overall limitations on the amount that an individual or political committee may contribute in the contest of federal elections and primaries.
The court noted that the problem of money in politics had grown so substantial that “the situation not only must not be allowed to deteriorate further, but that the present situation cannot be tolerated by a government that professes to be a democracy.”
Given the additional deterioration since then, where does that leave our democracy now?
The appeals court concluded by noting that the new law’s provisions “should not be rejected because they might have some incidental, not clearly defined effect on First Amendment freedoms. To do so might be Aesopian in the sense of the dog losing his bone going after its deceptively larger reflection in the water.”
The US Supreme Court wasted no time in dropping the bone.
The Supreme Court issued its final ruling on January 30, 1976, with campaigns already underway for November. Contrary to Court custom, no justice signed the Buckley opinion.
Perhaps nobody wanted to take responsibility for it. Multiple authors drafted it, most likely Justices William Brennan, Potter Stewart, and Lewis Powell, who were the only three who agreed with the entire opinion. Powell had been put on the court by President Nixon shortly after writing a secret memo describing how business interests needed to take over the judiciary. Stewart was a centrist. Brennan was one of the Court’s leading liberals.
It is quite possible Justice Brennan later regretted his part in the ruling, as the legal think tank founded in his honor by his former clerks made overturning the Buckley ruling one of its first priorities.
In the Buckley ruling, each justice had his own dramatically differing view about what the First Amendment says. Some justices saw the word “money” in the First Amendment—perhaps written in invisible ink because others did not see it there. There were multiple dissents and concurring opinions, which allow us to see how the votes broke down regarding the different pieces of FECA.
Six justices supported the limits on contributions from donors to candidates, while seven opposed the overall limits on what a candidate could spend. You might think that when the members of the Supreme Court cannot agree amongst themselves about what the Constitution says, they would defer to people who know much more about political campaigns than they do—like legislators. Instead, the justices thought they knew better than everyone else.
As the centerpiece of its 76,000-word opinion in Buckley v. Valeo (the longest in Court history), the Supreme Court majority argued that spending money to disseminate speech is the same thing as the First Amendment freedom of conscience and the ability to publish one’s thoughts through the free press. This, the Court said, is because “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”
While this is mostly true, Buckley wrongly assumes that the speaker must spend the money to convey an idea, not the listener.
Perhaps because it was so rushed to issue an opinion, or perhaps simply because different justices asserted their own personal ideologies, the Buckley court fundamentally conflated free speech with paid speech. Whether by accident or design, the Court ignored the distinctions I’ve drawn in chapter 2.
Judge Skelly Wright, one of the lower-court appellate judges who upheld the law, understood the difference between paid speech and free speech. He later observed, “The Court told us, in effect, that money is speech. … [This view] accepts without question elaborate mass media campaigns that have made political communications expensive, but at the same time remote, disembodied, [and] occasionally … manipulative. Nothing in the First Amendment … commits us to the dogma that money is speech.”