Like so many, I was saddened to learn of the August 18 passing of James L. Buckley. Buckley’s life was in many ways more interesting even than that of his better-known brother, Bill. He was one of a handful of Americans to have held high ranking positions in all three branches of the federal government—as Under-Secretary of State, as a U.S. Senator (to date the last elected on a true third-party ticket), and as a federal appellate judge—and he was a consequential actor in all three roles.
But perhaps Buckley’s most consequential public role was as the lead plaintiff in the 1976 case of Buckley v. Valeo. In Buckley v. Valeo, the Supreme Court recognized that limits on campaign spending were incompatible with the First Amendment and, indeed, with the American conception of self-government. Buckley is probably the most important First Amendment case of the 20th century.
To grasp the stakes in Buckley v. Valeo, it is necessary to appreciate the full extent of the Federal Election Campaign Act (FECA) Amendments of 1974. The centerpiece of the 1974 Amendments was limits on political spending. Candidates for the U.S. House of Representatives were restricted to spending $70,000 “for the purpose of influencing an election.” Even adjusted for inflation, today that would amount to roughly 65 cents per member of the voting age population. Restrictions on Senate candidates were considerably more severe—the spending limit was set at twelve cents per person in the voting age population. These amounts were, and adjusted for inflation remain, entirely inadequate for the actual costs of campaigning.
Even more extreme, FECA also prohibited any individual or group from spending more than $1,000 to communicate with the general public “relative to” any candidate. This is far less than the cost of a single 30 second spot on any major cable network. And as the Supreme Court correctly noted, virtually all spending to discuss public policy could be defined either as “for the purpose of influencing an election” or as being “relative to” a candidate. The $1,000 limit, when applied to individuals, even included expenses incurred by volunteers, such as the cost of traveling to assist at a campaign rally.
Under such limits, groups representing millions of individual members, such as the National Rifle Association, the AFL-CIO, the ACLU, the U.S. Chamber of Commerce—the list is endless—would have been, as a practical matter, unable to communicate with the public at large. Only the established press—in those days three national news networks, PBS, and a smattering of low-watt local stations on television; NPR and commercial radio stations; and newspapers and magazines—was exempt.
In short, had the Buckley Court not ruled as it did, the result would have been to require almost all political discussion in the United States to be filtered through the institutional press. Candidates would have been sharply limited in communicating with the mass electorate due to the low candidate spending limits. More ominously, civic groups, trade associations, labor organizations, consumers’ leagues, religious organizations—indeed, virtually any organization representing a segment of American political life, except for the institutional press—would have been effectively precluded from publicly disseminating information and opinion on candidates and therefore, to a substantial extent, from speaking to the public on any policy issue. Even spending to organize rallies or protest marches that referenced candidates was limited if they were “for the purpose of influencing an election” or “relative to” a candidate. (Ever seen someone hold up a sign referencing a candidate or office-holder at a march? Heard of an office-holder addressing a rally, such as the March for Life or the “Million Mom March?)
All of this would have dramatically reduced the variety and expression of public policy advocacy, while vastly increasing the political power of the national, institutional press. American politics would have become a sort of “non-politics,” in which only a small segment of elites would be heard, and mass organizations—trade associations, unions, membership organizations, political parties, and even small-dollar funded candidate campaigns—would have been largely excluded.
Against this monstrosity, Jim Buckley stepped up to serve as the lead plaintiff in a challenge to the law. He was joined by groups and individuals from across the political spectrum including liberal former Democratic Senator Eugene McCarthy, the ACLU, the American Conservative Union, a young Ed Crane (future president of the Cato Institute) and the Libertarian Party, and many others. But Buckley was the lead, the man whose honesty, gentle nature, and integrity made him invulnerable to claims that opposition to the law was itself a sign of political corruption.
Buckley, whose successful campaign for the U.S. Senate had been fueled by spontaneous grassroots support, was acutely aware of the effect campaign finance laws have of suppressing public engagement. In leading the constitutional challenge to FECA, Buckley fully recognized the important First Amendment principles at stake, but he also recognized that these were not abstract principles, or even “merely” the defense of individual liberties. Rather, the 1974 FECA restrictions on spending cut to the core of American democracy, and offended the basic idea of a sovereign, self-governing people.
Still, it was by no means certain that Buckley would emerge victorious. The final version of the bill had passed the Senate with 60 votes and the House with 365. The press (not surprisingly) was overwhelmingly in favor, and in the aftermath of the Watergate scandal routinely portrayed any and all opposition to the measure as a defense of political corruption. And indeed, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, upheld the restrictions in an opinion that barely gave the First Amendment the light of day.
In Buckley v. Valeo, however, the Supreme Court, in a 7-1 per curiam opinion, struck the expenditure limits. Buckley is not a perfect decision—to my mind, the Supreme Court did not go far enough to protect other First Amendment rights to contribute to candidates and against forced disclosure of political associations—but it is not too much to say that it saved representative democracy in the United States.
Jim Buckley: gentleman, lawyer, Under-Secretary of State, Senator, judge, and perhaps most importantly, plaintiff.
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