Prof. Rick Hasen Criticizes Buckley v. Valeo

A nice counterpoint to the Buckley v. Valeo at 50 symposium that we’re cohosting, from Prof. Rick Hasen (UCLA) at Slate; an excerpt, though the whole thing is worth reading:

Whether or not money is the root of all evil, the root of our current American oligarchy is a single Supreme Court case. That Supreme Court decision, Buckley v. Valeo, happens to turn 50 years old this week. It’s Buckley, and not the often-excoriated 2010 Roberts court decision in Citizens United v. FEC, that created the conditions for the ultrawealthy to transform their vastly unequal economic power into lopsided political power, and for a billionaire like Elon Musk to contribute a staggering $291 million to help elect Republican candidates, including Donald Trump, in 2024. It is going to take a constitutional amendment or Supreme Court reform to make things right again—and there’s a realistic chance that the current Supreme Court soon makes things worse, not better—but reform is unlikely because of the power of the very moneyed interests who benefit from the Buckley-created system….

The First Amendment concerns voiced by Buckley‘s challengers were real and the 1974 law was too draconian. In the middle of the Buckley litigation, an advertisement appeared in the Washington Post criticizing Ford for his pardon of Nixon and his choice of Nelson Rockefeller as vice president. As campaign finance expert Herbert Alexander described it, the political advertisement headlined “Would You Elect Ex-Congressman Ford President?” “urged Republicans, Democrats, and independents to oppose Ford and convince him to withdraw as a candidate.” The ad cost $2,368.80, in violation of FECA’s $1,000 individual spending limit. It was a technical violation of the law, but not a fair one. There was also a concern that challengers need more money than incumbents, who already had name recognition and other benefits like free publicity from being in office, and so limiting campaign contributions and spending was in the self-interests of the members of Congress who passed the law.

But whether or not parts of the 1974 FECA went too far, the court was wrong to say that independent spending could never corrupt or create the appearance of corruption, or that there could be no limit in spending by the ultrawealthy. And the results in recent years have been disastrous. As I explained last year at Slate, Musk is not alone among billionaires spending big money:

In the 2024 elections, the top six donors supporting or opposing federal candidates each reported contributing at least $100 million, according to data compiled by OpenSecrets. Those donors—Musk ($291.5 million), Timothy Mellon ($197 million), Miriam Adelson ($148.3 million), Richard and Elizabeth Uihlein ($143.5 million), Ken Griffin ($108.4 million), and Jeffrey and Janine Yass ($101.1 million)—all exclusively supported Donald Trump and other Republican candidates (with the exception of the Yasses, who gave a nominal $1,500 contribution on the Democratic side). The biggest donor on the liberal side was former New York City mayor and publisher Michael Bloomberg, who gave $64.3 million total, with all but $1 million going to the Democratic side….