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January 29, 2016 5:06 am

40 Years of Campaign Finance Decisions at the Supreme Court

avatar by John Bolton

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The US Supreme Court in Washington, D.C. Photo: Wiki Commons.

The US Supreme Court in Washington, D.C. Photo: Wiki Commons.

January 30 marks the fortieth anniversary of the Supreme Court’s decision in Buckley v. Valeo, a case challenging the constitutionality of every significant provision of the post-Watergate campaign finance “reform” law (known as the Federal Election Campaign Act Amendments of 1974, or “FECA Amendments”).

The Buckley majority struck down all limits on campaign expenditures, including independent expenditures and expenditures from a candidate’s personal funds, and also declared that the Congressional role in appointing members of the Federal Election Commission unconstitutional. A divided court upheld contribution limits, the scheme for public funding of presidential elections, and campaign disclosure provisions.

The intellectual progenitor of the First Amendment arguments made in Buckley was Ralph K. Winter Jr., then a Yale law professor and an AEI Adjunct Scholar. In many respects, AEI was the home and the headquarters for those who believed the FECA was a dagger aimed at the heart of free political speech. Almost alone in the rush to “do something” to prevent future Watergates, Ralph argued that the FECA and other so-called “reform” proposals would have done little or nothing to prevent what President Nixon and his co-conspirators actually did. Instead, the “reforms” were elements of a political agenda that existed long before the break-in and subsequent cover-up, and that today still roils our national debates.

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Ralph demonstrated that electoral contributions and expenditures constitute political speech at the very core of the First Amendment, and, accordingly that legislation setting limits or prohibitions on such activity was almost invariably unconstitutional. It is hard to describe today how much of a minority view this was in 1973-74. But by the force and clarity of his analysis, Ralph laid the foundation for all the later arguments that became encapsulated under the rubric “money is speech.” As of course it is.

In the mood of near hysteria that gripped political commentators and the national news media, Ralph calmly and systematically eviscerated the reformers’ pretensions. In 1974, AEI published Watergate and the Law: Political Campaigns and Presidential Power, which took on the advocates of the campaign-finance legislation adopted that year, as well as what ultimately became the War Powers Act and the Independent Counsel statute. All three were abominable public policy, related only coincidentally to Watergate. Fortunately, Congress ultimately let the Independent Counsel statute die an unlamented death after watching its perverse applications over the next two decades. And successive presidents, Democrat and Republican alike, have made the War Powers Act a hollow shell, of little or no real-world consequence.

Unfortunately, the campaign finance laws still survive in part, distorting and irrationally skewing federal election campaigns. Ralph had predicted and warned against the consequences we see today in Campaign Financing and Political Freedom, published by AEI in October, 1973. [1] His concern with the FECA’s unconstitutionality and its inevitably pernicious consequences for American politics did not stop with the extended public-policy essays AEI had published, or even the television programs produced to explore the topics analyzed in Watergate and the Law, one of AEI’s first ventures into the electronic media, such as they were in that era of The Three Networks and not much else.

The few members of Congress prepared to stand against the prevailing winds of 1974 sought Ralph’s advice as final passage of the 1974 FECA Amendments neared. Chief among them was Senator James L. Buckley of New York, elected in 1970 on the Conservative Party line, but who caucused with Senate Republicans. Buckley hardly lacked for courage himself, later becoming the first Republican in Congress to call publicly for Nixon to resign. Since opposing the legislation in Congress was roughly akin to volunteering for Custer’s Last Stand, their conversations turned to challenging the constitutionality of the legislation after enactment.

Buckley was willing to be a plaintiff, and Winter was willing to be the lawyer, but bringing a major piece of constitutional litigation was no small matter. I graduated from law school in 1974 and became an associate at Covington & Burling in Washington, persuading Covington to take the case pro bono, and a senior Covington partner to supervise our work. (Buckley became the largest pro bono matter Covington had undertaken in its history to that point, meaning a tremendous number of hours in my early days at the firm were unbilled!)

We assembled a politically remarkable group of plaintiffs, which demonstrated Ralph’s underlying arguments about the discriminatory, pro-incumbent, pro-established-party biases permeating the FECA. The extraordinary array of twelve plaintiffs made the first major impression on the media that perhaps our constitutional arguments were not so outlandish as Washington’s conventional wisdom first thought.

Joining Buckley was former Senator Eugene J. McCarthy, anti-Vietnam War Democratic presidential candidate in 1968, poet, and once the Senate’s pre-eminent iconoclast. In announcing their plan to bring suit, Buckley and McCarthy held an unforgettable press conference that left even the jaded correspondents in wonderment that two such philosophically divergent politicians could agree on anything. That was exactly the point we wanted to make. Maybe the post-Watergate zeitgeist felt comfortable regulating campaign financing, but that hardly made it legitimate.

Other pairings among the dozen plaintiffs were equally instructive. We had Stewart Mott, a well-known and very generous contributor to liberal causes and candidates, and Bill Steiger, a moderate Republican congressman from Wisconsin, later renowned for his efforts to reduce capital-gains taxes. We had the Mississippi Republican Party and the national Libertarian Party. And we had the New York Civil Liberties Union, the largest state affiliate of the national ACLU, and the American Conservative Union. The NYCLU also brought the invaluable help of Joel Gora as our co-counsel; Joel, then an ACLU staff attorney, is now a professor at Brooklyn Law School.

Covington’s offices were then close to the AEI building, so I spent many hours in 1974 and 1975 at AEI working over our pleadings and briefs with Ralph. We were determined to move quickly, filing the case early on January 2, 1975, the first business day after the 1974 Amendments became effective, and reflected in our case’s docket number: 75-0001.

Although the then-solidly liberal D.C. Circuit treated us dismissively, we scored one major victory. The Court of Appeals unanimously declared unconstitutional a provision that would have limited “independent expenditures” to $1,000 per-person per-candidate. We had identified this provision from the outset as utterly indefensible, and we hoped to unravel the entire statute by pulling on this and other threads. Defenders of the FECA did not appeal their loss, but the plaintiffs appealed everything else to the Supreme Court.

The Court consumed over four hours for oral argument, an entire day on its calendar, thus an unprecedented amount. Ralph led off the argument, attacking the constitutionality of the contribution and expenditure limitations, and his adversary was Archibald Cox, former Watergate Special Prosecutor and former Solicitor General. Cox, a Harvard law professor, was also a Harvard and Harvard Law grad. Ralph, by contrast, was a Yale and Yale Law alumnus, and a Yale law professor. He was also an avid football fan, so just before he rose to take the podium, I slipped him a note which read simply, “Go Yale, Beat Harvard.”

Although our plaintiffs’ final victory was only partial, they established beyond cavil the First Amendment’s applicability to campaign-finance issues. And the long series of decisions that has flowed from Buckley, with some up and downs along the way, has shredded much of what remained of the FECA. The surreal structure of today’s statute is something no sane person would propose as original legislation, and the inherent unfairness and discriminatory effects of efforts to regulate free speech have only been exacerbated by the passage of time.

Undoubtedly, the struggle to preserve a free political system will continue for as long as the republic lasts, but Ralph Winter — and AEI — will deserve a full measure of credit for protecting the First Amendment. Ralph took an unpopular stand at a time of high emotion, argued it vigorously and well, and history has vindicated his analysis. Forty years after Buckley, his constitutional theory that “money is speech” looks better than ever.

I was a student at Yale Law at the time, and Ralph’s research assistant, and he was kind enough to attribute the authorship of Campaign Financing to “Ralph K. Winter, Jr., in association with John R. Bolton,” making it my first AEI publication. Of course, none of that in any way biases my observations.

This article was originally published by AEI. 

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