//  1/31/18  //  In-Depth Analysis

By Stuart McPhail, Citizens for Responsibility & Ethics in Washington

Cross-posted from CREW Blog

“[M]oney is speech” our current campaign finance jurisprudence tells us.  And while many consider the 2010 decision of Citizens United v. FEC as the source of that edict, it is actually much older.  That language comes from the description, in Justice White’s dissent, of the majority holding in Buckley v. Valeo, a decision which turns forty-two today. 

Justice White described Buckley’s central holding as “money is speech” because it was the first case to bless campaign expenditures with the protections afforded to speech under the First Amendment.  This conclusion led the Buckley majority to apply strict scrutiny to our campaign finance laws, a conclusion which has colored judicial review of campaign finance legislation ever since and hamstrung democratic attempts to regulate campaign expenditures. 

Justice White recognized that the decision at the heart of Buckley—the one that subjected campaign finance law to strict scrutiny because it found targeting money was the same as targeting speech—is erroneous.  Most critics today typically focus on the end results of Buckley’sapplication of strict scrutiny—its holding that balancing campaign speech or limiting campaigns are not compelling—but we should not lose sight of Justice White’s contemporary critique.  Justice White was right—money isn’t speech and our campaign finance laws target money as money—and Buckley’s decision to the contrary warrants revisiting.

Buckley’s Background

The 1976 decision Buckley v. Valeo considered a broad-sweeping challenge to the recently passed Federal Election Campaign Act, also known as the FECA.  While not the nation’s first campaign finance law, the FECA, enacted in 1971 and heavily amended in 1974 in the wake of the Watergate scandal, expanded upon prior law to regulate a broad range of campaign-related activities. 

Among other things, the FECA as amended in 1974 created the Federal Election Commission, limited the amount one could contribute to a candidate, continued the ban on corporate and union contributions to the same, created and regulated political committees, and set up a disclosure regime to keep voters informed.  It also limited the amount any candidate could spend on their own election campaign and limited the amount individuals and political committees could spend on campaign ads advocating the election or defeat of any federal candidate.

Shortly after passage, a broad spectrum of groups challenged the law.  While they raised many arguments, their central thrust was that the law was unconstitutional because it regulated electioneering activity.  They argued that electioneering activity constituted political speech indistinguishable from the type of speech at the heart of the First Amendment.

As a testament to the number and complexity of the arguments raised, the resulting decision spanned more than 170 pages.  In those pages, Buckley made a great many rulings—striking down the limits on expenditures, upholding the limit on contributions, narrowing the scope of the disclosure rules—but one ruling lays at the very heart of the case:  that the law raised a First Amendment concern at all. 

Early in the decision, the Court grappled with the government’s argument that campaign finance laws did not deserve First Amendment scrutiny because these laws targeted conduct (the act of spending money on speech) rather than speech itself. 

In support of its argument, the government cited United States v. O’Brien, a case in which the Court rejected a First Amendment challenge to a law banning the burning of draft cards.  There, the Court recognized that people burned their draft cards to express their opposition to the Vietnam war and that banning the burning of draft cards would reduce the amount of protest—i.e., speech—that the plaintiffs could engage in.  Nonetheless, the O’Brien Court refused to apply strict scrutiny, finding that where conduct and speech are intertwined, a lesser form of scrutiny was warranted.  This lesser scrutiny does not ask the government to advance an overwhelming interest to justify the limitation on speech, rather it looks to why the law was passed in the first place.  The scrutiny the Court applied in O’Brien asked whether the law under review sought to suppress speech (in which case it would be unconstitutional or, at least, subject to strict scrutiny) or merely to target the harmful effects of the conduct (rendering it constitutional so long as the impact on speech, though incidental, was “no greater than is essential”).  In O’Brien, the Court found that the law was not aimed at suppressing protest, but was rather motivated by the desire to effectuate the government’s power to conscript an army.  Accordingly, the Court found the law was constitutional.

In Buckley, the government argued that O’Brien meant that, at most, the FECA was subject to this intermediate scrutiny.  Applying that test, the government argued the Court should find the law did not seek to suppress campaign advocacy, but only sought to limit the harms arising from the conduct—the transfer of money—affiliated with it. 

The Court, however, rejected the government’s argument for two reasons.  First, the Court said that it “has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment.”  Accordingly, it rejected the idea that there was some distinct conduct for the law to target.  Second, the Court said that even if there were some distinct conduct, the law would still be unconstitutional because “the limitations challenged here would not meet the O'Brien test because the governmental interests advanced in support of the Act involve ‘suppressing communication.’”  In other words, unlike the law at issue in O’Brien which was not motivated by a desire to suppress anti-war protests, the Court held that the purpose of the FECA was indeed to suppress speech.

Finding that strict scrutiny was therefore appropriate, the Court in Buckley struck down the limits on expenditures. It did so because it found that the laws could not be justified by any anti-corruption interest and that cited interests in equalizing speech were illegitimate.  On the other hand, it upheld limits on direct contributions, finding they were justified by anti-corruption interests.

While one could view Buckley as an attempt at Solomonic moderation—striking down some laws but upholding others—the strict scrutiny framework it applied has hardly led to moderation. Rather, many other courts have applied this framework to invalidate a large number of campaign finance laws.  In FEC v. Wisconsin Right to Life, it was used to strike down the ban on one type of corporate and union funded electioneering.  In Citizens United v. FEC, it was used to strike down another.  In McCutcheon v. FEC, it was used to strike down the aggregate limit on contributions to candidates and committees.  And it will likely be used to strike down more in the future.

But the strict scrutiny framework was wrong.  In fact, the Court was wrong about each of the two premises it used to reject O’Brien’s intermediate scrutiny.

Buckley’s First Mistake:  Money is Not Speech

The first mistake Buckley made was to assume that a law could not target the ill effects of the money spent on speech without targeting the speech itself.  In fact, the Court did not even squarely address this issue:  it left this important conclusion to inference.

It is worth recalling that Buckley did not attempt to explain why spending money on speech was categorically different then burning draft cards.  Both activities could and were being used to facilitate speech.  Rather, the Court leapt to the conclusion that money was different.  It then flipped the question—instead of asking whether it was possible for the government to target the ill effects of the money used to fund speech, as an O’Brien analysis would ask, it asked whether the speech could be limited merely because money was spent on it.  It answered that question in the negative.  “[T]he dependence of a communication on the expenditure of money,” the Court said, does not “operate . . . to introduce a nonspeech element” into the speech.  In other words, the Court assumed the law targeted speech, and found that the expenditure of money on that speech did not remove it from First Amendment protection.

But that fails to squarely address O’Brien and the government’s argument.  It is of course true that the fact that conduct occurs in bringing about speech does not make the speech unprotected.  O’Brien did not say that anti-war protest could be outlawed because anti-war protest often came about by means of conduct (burning draft cards, marches, etc.).  The Court’s task, rather, was to determine what harms the law targeted.  If the harm the law targeted was the speech—that is, if the law existed to reduce or eliminate the speech itself—then the law triggered strict scrutiny.  But if the ill arose from something besides the speech, such as the loss of the draft cards and complication of draft efforts, then the law was constitutional.

Some who seek to defend Buckley argue the court was right to refuse to acknowledge a distinction between speech and the money spent on it because spending money on speech is often necessary to bring speech about.  As an example, apologists argue that it would be unconstitutional for the government to shut down the New York Times just because money is spent to publish the newspaper.  But the mere fact that money is sometimes necessary to create speech provides no reason why the government may not target the ill effects of the money itself.  For example, labor is also often necessary to bring speech into existence, yet the government regularly enacts labor regulations.  Laws requiring businesses, including newspapers and bookbinders, to pay minimum wage or to provide safe work places assuredly reduce the amount of speech these businesses can create by increasing their costs.  Yet that does not mean these laws censor speech.  Nor is money somehow uniquely special – income and sales taxes clearly reduce the amount of speech when applied to speech producers or to sales of media yet they pass constitutional muster.

On the other hand, a law that directly and non-incidentally targets speech doesn’t pass muster just because money was spent or labor was exercised to create it.  So, for example, a law that bans the advocacy of abortion cannot be saved merely because it also outlaws the publication of paid advertisements.  For the same reason, the government cannot shutter the New York Times just because it is a revenue generating operation.  Nor could the government target speech through a pretextual general law.  So, for example, a law supposedly against littering or a tax to raise revenue would be  unconstitutional if its application were limited only to speech—if the littering law only applied to the distribution of handbills, or if the tax law only taxed the sale of newspapers but of no other items.

But a general law that only incidentally reduces speech is constitutional if the problem the government is addressing is not related to the suppression of speech.  Buckley was wrong to ignore this fact of constitutional law and was wrong to focus instead on a straw man: whether the government can suppress speech merely because money is spent on it.

Of course, Buckley concluded that the FECA was motivated by the suppression of speech.  Thus, it might be better to say that Buckley did not so much reject the O’Brien framework as that it applied it and found the law failed the test.  

But the Court’s conclusion that the FECA fails the O’Brien test—that the FECA was improperly motivated—fails to stand up to the Court’s own analysis.  Unfortunately, it appears the Court may have made this mistake because it was misled by simple historical happenstance.

Buckley’s Second Mistake:  The FECA Does Not Exist in a Vacuum

As discussed above, the Court found the FECA failed the O’Brien test because it found that the law targeted speech, concluding that “the governmental interests advanced in support of the Act involve ‘suppressing communication.’”  Specifically, it found the purpose of the Act was “restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns.”  It said that that interest, even if could be said to be compelling and thus sufficient to suppress speech, was squarely targeted at reducing the amount of speech available.  In other words, the harms the government targeted arose from the existence of speech.

Yet, as the Court recognized, that was not the only motivating purpose behind the FECA.  Another purpose was to combat the corrupting influence of campaign spending, and the Court rightly found that harm was unrelated to the speech.  The Court recognized that significant sums either contributed to a candidate or spent in ways that candidates value are fundamentally identical to a quid in a quid pro quo bribe.  Just as the government may combat bribery, the Court found it too may combat the risk of bribery created by large contributions or expenditures.  And, at least in other contexts, courts have not invalidated a law where it has multiple purposes that support it and only one is invalid—so a finding that the FECA served a legitimate purpose should have meant the law survived the O’Brien test. 

But instead of finding that the FECA, or at least even parts of it, did not have the purpose of suppressing speech, the Court applied strict scrutiny to the entire law.  Of course, it went on to find that certain provisions were justified by the anti-corruption rationale and survived strict scrutiny; but the application of strict scrutiny has forever subjected the anti-corruption rationale to an extremely narrow interpretation that would not have been called for in an intermediate scrutiny framework.  That is because the O’Brien test does not ask whether the interest is compelling—i.e., so important as to justify a restraint on speech—it only asks whether the interest asserted is combatting a harm not arising from the speech itself.  If it is, then a law serving that interest may stand.

One might nonetheless argue that the FECA, even if motivated by anti-corruption rationales, still targeted speech because it targeted only corruption arising from money spent on elections—i.e., speech.  The FECA after all does not limit all gifts to officeholders.  It just limits contributions to their election campaigns—money that likely will be spent on campaign ads or other types of advocacy.  The FECA also does not ban paying for a candidate’s vacation—it just limited paying for ads advocating the candidate’s election.  In that way, it is like the tax that applies just to newspapers or the littering law that applies just to handbills.  One might conclude, then, that the law’s underinclusiveness indicates that, whatever anti-corruption purpose it may have had, it was solely focused on corruption arising only when speech occurred.

Yet it would be a mistake to see the FECA in that vacuum.  Our campaign finance laws do not exist separate and apart from all other laws.  They are but one pillar in our nation’s myriad of ethics laws that all have as their purpose ensuring the fidelity of officeholders to the country’s wellbeing and not their own (or those who may purchase influence).  The FECA exists alongside laws that ban bribes and limits gifts to officeholders, laws which restrain officials’ outside pay and mandate only a single paymaster, and even a Constitution which bars presents and emoluments of any kind from foreign governments without congressional consent.  While these laws vary in their particulars, they all work to prevent corruption.  The FECA and other campaign finance laws are just part of a larger framework.

Viewed in that context, the FECA does not target speech—it fills a hole left by the other anti-corruption laws.  It would be as if the general sales tax at first excluded newspaper sales, but a later law eliminated this exception.  The other anti-corruption laws prohibit the direct placement of valuable items in a candidate’s pocket.  But they leave open campaign finance, an area our history has shown to be a massive avenue for corruption.  Candidates and officeholders place immense value on staying in (or gaining) their office, and the key to that power (or at least what candidates believe to be key) is spending vast sums on campaigns.  In other words, spending money on candidates’ elections is no different than putting money in their pocket—a fact both candidates and donors understand.  Because the government may regulate the latter, it may regulate the former. 

It is perhaps then only as an arbitrary result of history that we are stuck with Buckley.  If the FECA was even more expansive in its breadth—if it also addressed gift and emolument bans, for example—the Court may not have been so quick as to assume the law targeted speech. 

Of course, there was evidence before the Court that the law did not target speech.  The very text of the FECA showed that, if the FECA were aimed at the suppression of speech, it was poorly targeted.  After all, the FECA does not ban or limit campaign advocacy unconnected with the expenditure of money—there is no limit, for example, on how many doors a campaign volunteer can knock on or how many town hall speeches a candidate can give.  There is no limit to the length of opinion pieces or a requirement that an author give equal time to their opponent.  Rather, the only speech the FECA targets is speech funded by significant sums of money.  The FECA is focused on the spending on electioneering.  The law targets the transfer of something valuable to the candidate and the risk that the candidate may think it worthy of repayment.  

That is why the law does not allow the government to ban a book, a hypothetical which so worried Justice Kennedy in Citizens United.  If we understand a book is not the physical object but rather is the set of ideas and organized words, nothing in the FECA allows the government to prevent the spread of those ideas or make unlawful those string of words.  Rather, like a law prohibiting the bookbinder from using laundered money to create its wares, the FECA only regulates the sources of funding used to print it. 

It was therefore folly for Buckley to conclude that the FECA was motivated by the desire to suppress speech.  The FECA only targets speech insofar as that speech is valued by a candidate because it represents the significant sums that must be spent for the candidate’s benefit.  In that way, the speech impacted is no different than a check slipped into the candidate’s pocket. 

Buckley’s Mistakes Need Not Color Future Cases

One more observation is worth making about this mistake.  Buckley is a holding about the FECA.  Buckley held that the FECA targeted speech because the scope of the statute appeared to focus solely on speech.  But that would mean Buckley is a holding about the 1974 FECA and the 1974 FECA alone.  It would have no bearing on other campaign finance laws. 

In the same way, the Court’s holding that a sales tax targeting newspapers is unconstitutional would not mean that any sales tax law that applies to newspapers is unconstitutional.  A later general sales tax that only incidentally impacted newspapers would pass constitutional muster.  The earlier decision would not control, because constitutional analysis looks to a given law’s purpose. Thus, the Court’s decision about a future law’s purpose is independent of the determination of the 1974 FECA’s purpose insofar as that future law has a different scope and focus.    

For example, Congress has debated for a number of years an expansion of campaign finance disclosure rules.  This DISCLOSE Act, if it were ever to become law, would certainly end up before the courts.  Under current jurisprudence, the law would be subject to “exacting scrutiny”—a lesser form of scrutiny than the strict scrutiny Buckley imposed but nevertheless one that asks whether the government’s interests are sufficiently important to outweigh the possible chill on speech resulting from disclosure.  But before a court even got to this level of scrutiny, it would first need to resolve the O’Brien question:  does a law imposing only disclosure—an imposition Buckley recognized “impose[s] no ceiling on campaign-related activities”—target speech, or does it merely have an incidental impact on speech because some individuals might choose to engage in less campaign activity in order to avoid disclosure.  If the Court finds the law does not target speech, then that should be the end of inquiry—there is no need to balance the risk of chilling speech against the governmental interests served. 

That is important where the Court has taken it upon itself to decide the proper scope of the interests that may be served despite having no expertise in the nature of corruption.  If the Court is engaged in weighing, it is incumbent on the Court to decide which interests even make it onto the scale.  If the Court, however, is guarding against pretextual laws that seek to suppress speech, then it must defer to the democratic processes’ conclusion about what is needed to combat corruption.

In this way, a campaign finance law that operates differently than the FECA may present the Court with the opportunity to recognize its folly and correct its application of Buckley. 

Conclusion

A decision made forty-two years ago set up our current campaign finance regime, one that has put a straight-jacket on the American people’s ability to resolve two critical problems:  the corrupting influence of money and the substitution of democratic representation with financial representation.  That decision has set the stage for later ones like Citizens United, which understandably face opprobrium.  Yet that decision, Buckley, is based on mistakes that have infected our jurisprudence ever since; mistakes we should not continue to make.  


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