Overturning Buckley — can it be done? by Robert B. Rackleff A landmark 1976 Supreme Court decision struck down all limits on spending for political campaigns. Overturning that decision has become the clarion call for many campaign finance reformers.

In late 1974, then-U.S. Senator John A. Buckley faced a tough 1976 reelection campaign. He had been elected as the Conservative Party candidate with only 39 percent of New York’s voters in a fractious 1970 election, defeating both the Democratic and Republican nominees. Sensing his political weakness, opponents were lining up to unseat him in 1976.

To make matters more difficult, Buckley faced a strict new federal campaign finance law just passed in the wake of President Nixon’s Watergate scandal. The Federal Election Campaign Act of 1974 created tough restrictions on campaign contributions and spending, as well as disclosure and public financing measures.

He and others promptly sued, asserting in the case, Buckley et al. v. Valeo, that the new law was an unconstitutional restriction of political speech.

On January 30, 1976, a divided U.S. Supreme Court issued a landmark decision that struck down all spending limits, reasoning that spending was essential to political speech. It also struck down all limits on a candidate’s personal contributions to his or her campaign. At the same time, though, it upheld limits on the contributions that individuals can make to a candidate’s campaign. This bifurcation has contributed to confusion about the Buckley decision and, in some cases, about how to respond to it.

In the years that followed, Buckley v. Valeo thwarted attempts at all levels of government to stem the rising torrent of campaign spending. Contending with this decision has been a central goal for reformers.

Two public-interest law centers are leading the legal challenge to the Buckley decision, determined to remove this obstacle to effective campaign finance reforms by Congress, state legislatures and local governments. The William J. Brennan, Jr., Center for Justice of the New York University School of Law and the National Voting Rights Institute in Boston, MA, have different styles and approaches, but both are aggressive and persistent and both are part of the Corporation’s approach to supporting campaign finance reform.

By joining in the defense of campaign finance reforms that are being challenged by opponents of reform throughout the country, they are probing for weak aspects of the Buckley decision, aiming to expand the constitutionality of reforms and ultimately overturn its most burdensome elements.

Attorneys at both centers agree that the effort will take many years, because of the slow pace of such complex court proceedings.

They also agree that history is on their side. They point out that poor Southerners first challenged the poll tax only to have the Supreme Court rule against them in 1937. The Court again upheld the constitutionality of the poll tax in 1951. Not until 1966 did the Supreme Court finally strike down the poll tax as an unconstitutional infringement of the right to vote. Challengers to Buckley expect to win similarly.

The Brennan Center for Justice

“Buckley is a rotting tree that’s ready to fall,” says Joshua Rosenkranz, executive director of the Brennan Center. Until recently, it could have fallen either way, he reasons, with the Supreme Court either overturning its ban on spending limits or extending its ban to contributions and not just spending. “The distinction between contributions and spending is untenable,” Rosenkranz states.

But a Supreme Court decision in early 2000, Shrink Missouri Government PAC v. Adams, upheld Missouri’s law limiting contributions to statewide candidates to $1,075, encouraging reformers. This marked the first time since the 1976 Buckley decision that the Court affirmed that limiting contributions did not infringe on the First Amendment and encouraged Rosenkranz to believe that future decisions would go their way. “The rotting tree isn’t going to fall on us, and that’s good,” he says.

The center was established in 1995 by former law clerks of the late Justice William J. Brennan, Jr., to work toward four goals, one of which is strengthening democracy. Its Democracy Project focuses on enabling effective campaign finance reform to become constitutional—litigating cases, drafting model legislation, counseling reform groups and educating the public and legal community about this issue. With a staff of 32, the center resembles a medium-size trial firm of lawyers, experts and support persons, but unlike most small law firms, this group shares the passion for reforms embodied by the late Justice Brennan.

Ironically, it was Justice Brennan who wrote much of the Buckley opinion, including key rulings that his namesake center now seeks to overturn. Rosenkranz, his law clerk in the 1980s, explained that Brennan later made him promise that the center’s lawyers would never feel bound by any of his judicial opinions.

By mid-2000 the center was involved in a dozen lawsuits around the nation, most of them defending new state or local laws that limit campaign spending and contributions, which is the focus of the Corporation’s work, believing, as it does, that change may be more achievable in statehouses than at the federal level. Some of these involve laws recently passed in Arkansas, California and Missouri that limit contribution amounts; North Carolina’s regulation of “issue advocacy” campaigns; and Maine’s Clean Election Law that established public financing for statewide and legislative candidates.

Also, the center has filed an amicus brief in defense of the Federal Elections Commission’s regulation of “soft money” —funds raised by parties or advocacy groups not expressly supporting a candidate—spent for negative ads attacking an opposing candidate.

The center describes in detail the arguments against the Buckley decision in the 1998 report, Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform, published by the Twentieth Century Fund, and written principally by Rosenkranz. A more recent book, If Buckley Fell: A First Amendment Blueprint for Regulating Money in Politics, edited by Rosencranz (Brookings Institute, 2000), describes the elections system that would result from campaign finance reforms.

In the Buckley decision, the court recognized the compelling interest of governments to prevent corruption involving campaign financing and to promote effective electoral participation, regardless of wealth. However, the court distinguished between contributions and spending.

It held that it is not unconstitutional for governments to regulate contributions by others because these are acts of political association, not direct expressions of political speech. Contributions can involve the danger of political corruption, and limiting that danger is a compelling interest of government.

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