First Among Equals (12 page)

Chapter Four

H
ARD
M
ONEY AND
S
OFT:

T
HE
F
IRST
A
MENDMENT

AND
P
OLITICS

T
HE CASE UNDER CONSIDERATION was
Buckley v. Valeo,
and the Court was in a hurry. The nation would choose a president in the upcoming November 1976 elections. But landmark campaign-reform measures passed in 1971 and amended in 1974 raised a series of important constitutional questions. The law set limits on the amounts contributed to and spent by campaigns. It required full disclosure of political donations and provided for federal financing of presidential campaigns. It also created a new bureaucracy to police federal elections: the Federal Election Commission. For decades, Congress had relied on disclosure requirements, plus bribery laws, to deter campaign-finance abuses. But the abuses that marked the 1972 presidential election were too many and too corrupting for Congress to ignore.

The law came under attack as critics said that challengers would have a harder time defeating incumbents and that third parties would find it more difficult to be competitive. But here in the Court, the law's constitutionality—not its virtues or vices as public policy—was the issue. The core question before the Burger Court was whether Congress, consistent with the First Amendment, could regulate the amount of money devoted to political campaigns. An impressive army of plaintiffs had attacked the law as a violation of the First Amendment's Free Speech Clause. The law, they asserted, violated freedom of political speech and also the right of association, which the Warren Court had derived from the First Amendment in a 1958 civil rights case.

The justices had little time to reflect. With the election year under way, a decision in
Buckley v. Valeo
needed to come down quickly. The conference room of Warren Burger's Court was getting crowded. Justice William Brennan moved to preside. Chief Justice Burger had shown up briefly, said hello, and turned the proceedings over to the senior justice. The law clerks, I among them, were mute. The situation was unusual, likely unprecedented. None of us had ever heard of law clerks assembling in the conference room with any of the justices to conduct the Court's business. But here we were, with Justice Brennan calling us to order.

Among those in the room, only Justice Brennan held a presidential commission, duly confirmed by the Senate to serve for life (during “good behavior,” in the words of the Constitution). Justice Brennan, with his legendary Irish charm and wit, had a way with people. But on this day in January 1976 he was all business. He started giving assignments as though he were a staff officer barking orders of the day to the troops. The Court's opinion had to be drafted expeditiously and each chambers had its work to do.

The lead plaintiff in the case was Senator James Buckley of New York, a future judge. Jim Buckley was a gracious, genteel New Englander, the older brother of William F. Buckley, Jr. (I was destined, years later, to be Jim's colleague on the U.S. Court of Appeals in Washington, D.C.) Thanks to the vagaries of New York politics, Jim had managed to squeak into the Senate as the Conservative Party candidate from the liberal state. On the other side, the lead defendant was an unelected officer of the Senate, Francis Valeo. He had no personal stake in the case. The landmark lawsuit had been filed against him in his official capacity.

Leading luminaries of the law debated the free-speech issues. Archibald Cox, the hero of Watergate, argued on behalf of Common Cause in support of the law. Something had to be done, he contended, about the corrupting influence of money in politics. This comprehensive law was the answer, and it was fully constitutional. Lloyd Cutler, destined to serve as counsel to Presidents Carter and Clinton, made a similar argument. This was, he argued, needed progressive legislation that would bring greater integrity to government and promote public confidence.

Among the many doubters was Edward Levi, the former president of the University of Chicago and recently installed reform attorney general under President Gerald Ford. A giant in the law, Levi was restoring order and integrity to a Justice Department badly buffeted during Watergate. Joining him on the brief was the solicitor general of the United States—and future judge and Supreme Court nominee—Robert Bork. The two “generals,” Attorney General Levi and Solicitor General Bork, had taken the unprecedented action of joining together to file their own, separate brief raising a series of issues about the law's constitutionality. This expression of views by two senior officers of the Justice Department was not only notable in itself. It stood in contrast to the
official
brief defending the law submitted by Bork's office. In the Levi-Bork view, the law raised profound issues of both free speech and separation of powers. Political contributions and expenditures were at the heart of First Amendment protections, they argued, and the statute's far-reaching limitations curtailed that fundamental political liberty. In addition, the unusual method of appointing members of the Federal Election Commission (permitting the House and Senate each to appoint two of the six commissioners) raised serious issues under the Constitution, which reserves the appointment power to the president. The brief was gently worded, as a true “friend of the court” submission, but its message of disapproval was plain.

My own service as solicitor general was almost fifteen years away, but, if only dimly, I sensed that something extraordinary was happening. As we saw in the flag-burning case, it falls to the solicitor general—and his superior the attorney general—to defend statutes passed by Congress against constitutional challenge. Even if the Justice Department finds the law objectionable, the duty still exists to defend the law. (The only exceptions are where the law invades the prerogatives of the executive branch or where no reasonable arguments can be advanced in support of the measure.)

In the Buckley case, practical politics were likewise at stake, not just great constitutional issues. The law's challengers represented a broad swath of the political spectrum from left to right. While the lead plaintiff was Senator Jim Buckley, a conservative icon, the challengers included well-known figures on the political left. Financial supporters of insurgent campaigns, including wealthy backers of Eugene McCarthy's challenge to Lyndon B. Johnson in the 1968 Democratic primaries, assailed the law. In their view, the law's strictures would tend to freeze the status quo, leaving the political field to the two major parties. Insurgents needed to raise seed money rapidly but they also needed to provoke debate on their issues, not search endlessly for funds.

Could anyone seriously suggest that a wealthy liberal on Park Avenue was somehow trying to corrupt Eugene McCarthy by generously supporting his anti-Vietnam, anti-LBJ campaign? The suggestion of corruption (or its “appearance”) was untenable. Gene McCarthy was incorruptible, a man of rectitude and high principle. Maybe you disagreed with him, but you couldn't reasonably question his integrity. And to challenge an incumbent president whose policies you despised you needed a great deal of money.

A similar refrain echoed from the Libertarian and Conservative Parties. They believed that their already difficult financial challenges would be made even more so by the pro-incumbent approach embodied in the “reform” legislation—which, not incidentally, had been written by incumbents. Minor parties, like insurgent candidates within the existing party structure, needed the ability to tap into large resources. Taking on the “establishment” within any party, or outside the existing two-party structure, required a critical mass of funds quickly assembled.

Deep policy concerns about the future of American politics inevitably bled into the argument over constitutional doctrine. Did limits on political contributions and spending violate the First Amendment? Was money simply a necessary ingredient for First Amendment speech and for that reason deserving of constitutional protection? Was the newly constituted Federal Election Commission, with its six voting members equally divided among appointees by the president, the president pro tem of the Senate, and the Speaker of the House, lawfully structured? The issues were many, and difficult.

As usual, in
Buckley v. Valeo
the justices had convened shortly after the oral argument to decide the case. Now, a day later, the law clerks were sitting in the conference room awaiting orders. Each of us represented a different justice, so there were nine of us in all. I clerked for Chief Justice Burger, and he had designated me to be at this session. I knew this room well. My own office, shared with my co-clerk Pete Rossiter from Chicago, was literally next door to the chambers containing the formal conference room. This room was largely off limits. The regular tours of the Court never entered the room. But as a member of the chief's professional family, I could enter so long as the justices were not in conference. I frequently passed through this center of Court decision-making on my way to see the chief in one of his two offices, which were separated by the conference room itself.

For his part, the chief was largely in dissent from the Court's tentative judgment. The Court majority was of the view that Congress could, consistent with the First Amendment, limit the amount an individual could
contribute
to a campaign (the familiar $1,000 limitation) but could not curtail the amount a candidate could
spend
on his campaign. Chief Justice Burger would have struck down the entire statute as an abridgement of First Amendment rights. But the chief volunteered to help produce on very short notice what everyone recognized would be a massive opinion. He would help fashion the majority opinion, and yet write a lengthy dissent.

By long tradition, the justices zealously guard the “conference.” No law clerks are present, nor are any support personnel permitted in the large room. The justices decide the cases that have been argued during the week (typically Monday through Wednesday). The chief justice, speaking first, sets forth his views on the case under discussion. Each case is discussed separately. There are no elaborate records, no recordings, no transcripts. Each justice takes whatever notes he or she chooses. The chief keeps an official scorecard. This way the assignment of opinions can be carried out soon after the conference adjourns. The junior justice sits at the end of the table and heads to the door with two messengers stationed nearby if something is needed inside the room.

Buckley v. Valeo
melded three explosive elements: politics, free speech, and money. For decades, Congress had relied on disclosure requirements, coupled with bribery laws, to combat the threat of corruption in political campaigns. But bribery laws are hard to enforce. A quarter century after
Buckley v. Valeo,
in the uproar over President Clinton's last-minute pardon of financier fugitive Marc Rich, for example, one criminal defense lawyer simply harrumphed “good luck” when asked if a criminal prosecution for bribery might eventually result. The criminal laws were, in the main, seen as woefully inadequate tools to accomplish the broader policy goal of public integrity.

Yet modern politics required enormous amounts of money. The 1960 presidential campaign had marked the advent of mass communications in presidential elections. To reach the voters, candidates needed television, and that required much more money than ever before. Public concern about abuses in the 1972 campaign drove the reform effort. Examples were legion and detailed in the court of appeals decision in
Buckley.
Dairy lobbyists got a meeting on price supports after pledging contributions totaling $2 million. Fund-raisers secured contributions by promising ambassadorships.

Congress's answer was bold and comprehensive. The government now would regulate all aspects of federal campaigns. There would be public financing of presidential campaigns while private funds would continue to underwrite congressional campaigns. But per-candidate contributions by a single individual could not exceed $1,000 per election cycle (including primaries), and total contributions to all candidates for federal office would be capped at $25,000. Limits also would be placed on expenditures. A presidential campaign could spend no more than $10 million on a candidate vying for his party's nomination. Each party also could not exceed $20 million in spending on behalf of its presidential candidate. Anticipating the Ross Perot-Steve Forbes phenomenon, Congress also devised a way to prevent a wealthy presidential candidate from spending unlimited sums of his own money on his campaign.

Everyone recognized the basic free-speech point— namely that political speech often costs money. In the heyday of the Warren Court, during the civil rights era, the landmark 1964 case of
New York Times v. Sullivan
involved an advertisement in the
Times
paid for by civil rights leaders. The ad was critical of a local police department in Montgomery, Alabama, and appealed for contributions. In
Sullivan,
the Warren Court understood that the presence of money in an activity scarcely meant the absence of constitutional rights. To see the matter in the context of political campaigns would mean that the First Amendment protected only those who spend very little, candidates who knock on doors and ring doorbells.

Faced with this comprehensive piece of legislation, the Burger Court recognized that political campaigning was at the core of speech protected by the First Amendment. It was unwilling to say that Congress could do anything it wanted in the interest of restoring the public's confidence, which had been badly shaken in the wake of the post-Watergate revelations. The Court, was emphatic: There were constitutional limits to the reformers’ regulatory reach.

Nonetheless, the Court did not simply overrule the court of appeals (which, again, had sustained the law in its entirety). Instead, it split the law down the middle, upholding the contribution limits ($1,000 per candidate per election cycle) and public financing of campaigns, but striking down the expenditure limits. Half the law was good, half was bad (with disclosure requirements, long upheld under existing case law, being readily sustained). But what doctrine could make this Solomonic result sensible and reasonable? Why go only halfway rather than strike down the limitations on expenditures as well, as Chief Justice Burger would have done? After all, couldn't an “expenditure” be viewed as simply the flip side of a “contribution”? You can't spend what you don't have, loans aside. Shouldn't contributions and expenditures rise or fall together? If one activity (contributions) could be regulated, why not the other (expenditures)? Or, vice versa, if expenditures were sacrosanct because of the First Amendment's protection of free speech, what was it about a political contribution that allowed the government to curtail it? Moses couldn't speak well, the Bible reports, so Aaron became the person to handle public speaking. Similarly, why couldn't the wealthy but publicity shy, inarticulate donor say to the candidate of his choice, “Here, speak frequently and fervently, because I believe strongly in what you are saying. But you do the talking, not me.”