“The Enduring Legacy of Buckley v. Valeo,” by Floyd Abrams

As we approach the fiftieth anniversary of Buckley v. Valeo, I’m reminded of a comment made by Joel Gora, who argued the case for Senator Buckley and Senator McCarthy. He correctly observed that many academics have treated Buckley as a “stain.”

This characterization is as unfortunate as it is wrong. For those of us who believe that political speech deserves the highest level of First Amendment protection, Buckley remains not a stain but a shield—one that has protected the fundamental right of Americans to influence their government through both speech and spending.

The decision has wobbled, certainly. It has been criticized from both the left and the right, with some believing it went too far in protecting speech and others convinced it didn’t go far enough. But through five decades of assault, Buckley endures, and with good reason: at its heart lies a principle so fundamental to our democracy that even its critics struggle to refute it entirely.

When the Supreme Court decided Buckley in 1976, it crafted what I’ve called a “tolerable compromise.” The Court distinguished between contributions to candidates—which could be limited—and independent expenditures advocating for or against those candidates, which could not. This distinction has led to what I readily acknowledge is a “crazy quilt” system far from any congressional intent, particularly in areas such as party and candidate campaign spending relative to Super PACs. Yet the alternative would have been far worse.

One of the great ironies of the debate over campaign finance law and free speech is the shift in political valences. When the Taft-Hartley Act first criminalized independent expenditures by corporations and unions in 1947, it was President Harry Truman—hardly a conservative ideologue—who vetoed it as a “dangerous intrusion on free speech.”

In those days, it was the liberal giants of the Supreme Court who were most concerned about restrictions on political spending. Justices Rutledge, Black, Douglas, and Murphy—probably the four most liberal jurists ever to sit on the Court simultaneously—concluded that whatever “undue influence” might be obtained through large expenditures was outweighed by “the loss for democratic processes resulting from the restrictions upon free and full public discussion.”

Nine years later, Justices Douglas and Black, joined by Chief Justice Warren, went even further, arguing that neither corporations nor unions could be limited in their speech simply because they were “too powerful.” As Douglas wrote, these are not “justifications for withholding First Amendment rights from any group—labor or corporate.”

What Buckley subsequently recognized, and what its critics too often ignore, is that in the realm of political speech, we should trust Congress least. When Senator McCain was promoting what became the McCain-Feingold law (also known as the Bipartisan Campaign Reform Act of 2002), he was refreshingly explicit about one of his goals: to get rid of “all this negativity” in political campaigns. But as I wrote at the time, that’s not something that the government can “get rid of.” Attempting to do so is, fortunately, simply off the table under the First Amendment.

This impulse to sanitize our politics extended beyond just eliminating negative campaigning. Perhaps the most dangerous innovation by advocates for such restrictions on campaign speech was their claim that it would prevent not just corruption itself, but something far more amorphous—its mere “appearance.”

The idea that we could limit speech in the name of preventing the appearance of corruption—not actual corruption, but just the appearance—is one that I’ve always found troubling. During the litigation over McCain-Feingold, I asked Senator McCain to provide factual support for actual corruption that would justify these restrictions. He could only point back to appearances. From a First Amendment perspective, that’s an absolutely unacceptable basis for limiting speech.

Even more troubling are attempts to reframe the First Amendment itself as supporting speech restrictions. Some argue that limiting certain speakers advances “collective speech” or preserves “democratic order.” This notion—that the First Amendment somehow supports giving government power to limit speech in democracy’s name—turns the Amendment on its head.

Critics of Buckley and its progeny, particularly Citizens United, often claim that these decisions have corrupted our politics or drowned out ordinary voices. But where’s the proof?

Consider what happened with Newt Gingrich in the 2012 Republican presidential primaries. After he would otherwise have been out of the race, a wealthy supporter funded independent expenditures, enabling him to continue for far longer than he would have without that support. We have seen numerous candidates supported by independent spending continue showing up for presidential debates, raising issues that might otherwise be ignored. Such candidates usually fade away eventually but giving them a better shot to express their views provides more ideas and a wider range of perspectives for voters to consider.

If we lived under a regime where the government’s vision of limited spending prevailed, we would simply have less speech, fewer points of view discussed, and fewer candidates. The politically entrenched and the incumbents would benefit, and “we the people” would essentially be left out of the process.

As we mark Buckley‘s golden anniversary, I’m struck by its durability despite sustained criticism. Buckley has achieved a kind of equilibrium. We’ve never had enough jurists on one side or the other to either strike down limits on contributions to candidates or to allow limits on spending.

This may frustrate purists on both sides, but I see it as a testament to the fundamental wisdom at the core of the Buckley decision, a compromise decision though it may be. At bottom, Buckley underscores that the solution to concerns about money in politics cannot be to ration political speech itself.

The Court in Mills v. Alabama, decided a decade before Buckley, struck down an Alabama law that banned newspapers from endorsing or opposing a proposition on election day—just on election day—for the purpose of preventing unanswerable last-minute speech that might unfairly sway an election. Nine to nothing, the Court said this was alien to the First Amendment. That’s the answer to those who would limit speech in the name of campaign speech purity.

As we enter the next half-century of campaign finance jurisprudence, we would do well to remember that the choice is between a system that maximizes political speech—even if imperfectly distributed—and one that allows government to decide who has spoken too much.

The Buckley Court chose free political speech. Five decades later, our nation is stronger for it.