"Effective Advocacy," by Allen J. Dickerson

From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I’ve been cross-posting; this is by Allen J. Dickerson is a partner at BakerHostetler and a former commissioner and chairman of the Federal Election Commission:

Buckley v. Valeo ranks among the most consequential articulations of American liberty, and yet almost no one reads it in full. It is a famously long decision, written on an emergency timeline, addressing technical material. It lacks the gripping rhetoric of, say, Justice Robert Jackson’s great First Amendment opinions—you will find no paeans to the “fixed stars in our constitutional constellation” here.

But, for all its complexity and compromise, Buckley stood fast on a key point: the Constitution protects effective political organization. The First Amendment exists “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

Free speech is central to individual dignity. But it is also the foundation of democratic self-government. We have Buckley to thank for the enduring influence of that idea.

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For speech to be considered effective, it must be able to change government policy and affect election outcomes. Effective speech is inconvenient to those in power because it can make them adjust their plans or risk being fired. Even in the aftermath of Watergate, the Court recognized that campaign finance laws could easily be used to limit speech, handicap civil society, and entrench government power.

The Buckley litigation showed, first and foremost, that Congress’s proposed remedies were shockingly beneficial to incumbent members of Congress and their entrenched allies. A central claim in the litigation was, in essence, that Congress had used the Watergate crisis as an opportunity to pass amendments to the Federal Election Campaign Act (FECA) that insulated elected officials from criticism and opposition.

At oral argument, Ralph K. Winter, Jr.—Yale professor and future federal appellate judge—highlighted the challenged law’s many distorting effects, almost none of which are routinely discussed today. For instance, incumbent members of Congress could accept unlimited funds from any source, without disclosure, which could “be used to prepare materials” that were then mailed, at taxpayer expense, using the member’s franking privileges.

But if a challenger did the same, printing “matters debating the pros and cons of governmental action,” his or her materials would have to be paid for using limited, fully-disclosed contributions. And, because the Act barred any candidate for Congress from spending more than $70,000—no matter how much he or she could raise—the cost of that material (and the cost of mailing, which would not be borne by the taxpayer) would count against the cap.

FECA didn’t just entrench incumbents. It also gave special benefits to dominant, longstanding interest groups. Congress had determined that political committees (PACs) that had been registered for six months could spend $5,000 per candidate—five times as much as newly-formed organizations. Meanwhile, unions, membership groups, and corporations could spend unlimited amounts subsidizing the fundraising and administrative expenses of their established PACs, again without disclosure. This rewarded permanent interest groups and badly handicapped ideological organizations responding, in real time, to political developments.

As Professor Winter noted at argument: “If there were five restaurants in the town and someone was about to open a new one, an ordinance severely limiting the amount of newspaper advertising restaurants might buy would be recognized for what it is. An attempt by the existing restaurants to freeze out newcomers.”

There were other examples, with small political parties facing special practical difficulties. But this was the general background against which the Court was acting. As the Court itself explained, the Act worked “to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication.”

After all, “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” The central insight that funding is necessary to effective advocacy remains the most controversial and important of Buckley‘s holdings. Yet it is obviously correct.

The caselaw leaves no doubt concerning an individual’s right to burn a flag or decline the Pledge of Allegiance. But unlike those acts of individual defiance, restricting “the amount of money a person or group can spend” has the (intended) effect of “reduc[ing] the quantity of expression.” Restricting funding limits “the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Throw in the centrality of “television, radio, and other mass media”—and now, the internet—to our national conversation, and the only way to communicate at scale is by pooling and spending funds.

Cutting off that lifeblood of political change was the mortal danger to which Buckley responded. It did so in three ways.

First, it held that Congress has no authority to curtail the private resources amassed and spent criticizing the government and its officers. Limits on the amount spent discussing campaigns and candidates are presumptively unconstitutional. In the Court’s classic formulation, “restric[ting] the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Second, and as important, it reaffirmed the centrality of group association in our system of government. And it did so for a familiar reason: associating with others “enhances effective advocacy.” This is true, in substantial part, because people of modest means can best participate fully in a public debate where they have the “right to pool money through contributions.” The juggernaut of small-dollar contributions that now power political campaigns is the best proof of this insight.

Indeed, while the Court permitted disclosure of small contributions, it was clearly uncomfortable. When Joel Gora argued the point for the ACLU, he was met with incredulity. Justice Lewis Powell seemed shocked that Congress had imposed a one-year prison term “for a citizen who fails to report a hundred dollar” independent expenditure. And the Court’s opinion agonized over what it wrought, explaining at length that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief.”

Finally, even where the Court upheld some portion of the Act, it left the door ajar. Limits on direct political contributions were permissible, but only if they did not prevent a candidate from “amassing the resources necessary for effective advocacy.” Disclosure requirements were upheld, but not if a donor faced a “reasonable probability” of “threats, harassment, or reprisals” for giving. These and other questions were intentionally left open, and the courts have spent the following fifty years revisiting them. And always, in the background, is the question of whether a particular restriction makes “effective advocacy” untenable.

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Buckley is an unwieldy exercise in practical judging. It has never been a popular ruling, and its many compromises ensured it would satisfy few. Yet it has created a stable foundation for some of the most difficult—and most politically charged— controversies to face the Republic. In an arena dominated by dreamers and demagogues, the Buckley Court faced a moment of profound crisis and enshrined a right to unfettered, effective political participation independent of any officeholder or political party.

That expression of trust in American society to govern itself, and distrust of governmental attempts to skew the rules in the guise of fairness, is Buckley‘s most important and enduring legacy.

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