First Among Equals (13 page)

The Burger Court thus had to wrestle with a basic question: Did money contributions deserve less First Amendment protection than the man atop a soapbox? The court of appeals had upheld the entire statute by drawing a fundamental distinction between money and speech. Money giving could be regulated, just as other “conduct” containing elements of “speech” or “expression” could be. The appellate court had taken refuge in a 1968 Warren Court case,
United States v. O'Brien.
There, an antiwar protestor burned his draft card in public to express his vehement disagreement with U.S. policy in Vietnam. This act, he said, constituted “symbolic speech” (like flag burning). His conduct, in other words, conveyed a message. Burning his draft card gave additional force to the idea. The upshot, the draft-card burner argued, was that he could not be criminally prosecuted for destroying the draft card that the law required him to carry. The First Amendment protected him just as it did others who engaged in symbolic speech.

The Supreme Court, in one of Chief Justice Warren's last decisions before handing over the reins to his successor, Warren Burger, rejected O'Brien's approach. Although recognizing that the act of burning the card conveyed a political message, the Court held that the government had a legitimate interest in protecting the integrity of Selective Service registration cards, and that this official interest was unrelated to any governmental desire to limit free speech.

This approach—justifying governmental efforts to regulate conduct that contained an expressive (or “speech”) element—quickly found its way into First Amendment law. The court of appeals in
Buckley
followed it. The campaign contribution to a candidate constituted “conduct,” not pure speech, and Congress could appropriately regulate the “conduct” by placing limits on the amounts an individual could contribute.

The Supreme Court was unmoved. It was faulty logic, the Burger Court suggested, to transport a legal principle from one setting to another where it did not belong. Quickly distinguishing
O'Brien,
the Court unanimously embraced money as constitutionally protected speech. Again, paying the print shop to print a pamphlet or paying the advertising department at the
New York Times
did not deactivate the First Amendment, just as the Warren Court had concluded.

This was a pivotal point. The Court could have said, “Money is different, this is not pure speech.” But the Court's past cases prevented that conclusion. The Warren Court veterans—Justices Brennan, Marshall, and White— had served on the Court in
New York Times v. Sullivan, so
they could not easily dismiss the First Amendment significance of the act of contributing to the candidate of one's choice. Money wasn't speech,
per se,
but it was close, when the purpose in giving money was to make possible the conveying of a political message.

But the Court did draw on the appeals court's thinking. The Burger Court concluded that a contribution, while protected by the First Amendment, could be limited because it was only an
indirect
form of expression. That is, the money was given by the donor to the political campaign to facilitate speech by someone else, not the contributor himself. Plus, the contribution simply manifested support for a candidate but didn't explain the grounds for that support. This, the Court reasoned, gave Congress greater running room to regulate the amount of the contribution. For the Court, there was a somewhat diluted First Amendment interest.

Freedom of association, however, proved different. The Court embraced the proposition that a political contribution reflected a form of political association protected by the First Amendment. Thus, the justices held that contribution limits represented a serious abridgement of associational liberty. The government should not be able to place limits on the amount of dues one pays—or charitable contributions one makes—to an association or organization. Arguably, the more one gives to the organization, the more one asserts a sense of kinship and community: “I feel strongly about this, so I'm giving $10,000, not just $1,000.” The cause may be political, not just charitable or civic or religious in nature. Politics is at the core of the First Amendment's concern, more so than artistic or other forms of expressive or associational activity that also rightly lay claim to First Amendment protection.

The Court was thus left, on the liberty side of the equation, with weighty claims to constitutional protection. If the generous donor now feels that instead of giving $10,000 in annual charitable gifts to the local library foundation he should do something about the direction of the country and give the money to an insurgent candidate who promises to double the library's budget, who is to say no? Making choices about which causes one will support, and to what extent, is at the heart of individual liberty.

This was not an easy set of questions. Only if the government could come up with a strong reason for curbing individual liberty might it try to do so.

The Burger Court found one. The government, it said, had an interest in guarding against not only actual corruption but its appearance. Thus, large donations given to library foundations were good, but those given to political candidates looked bad. They appeared to “buy” the candidate or at least give the donor undue sway over the candidate on issues. This appearance of influence or control, in turn, was corrosive of public confidence in government. And that was enough to justify the law. This interest was so powerful that it outweighed the not insignificant First Amendment interest in making generous contributions.

This was a classic example of judicial balancing. Instead of finding a specific answer to the problem in the text, structure, or history of the Constitution, the Court was openly making a policy judgment. The Court was sitting as if it were a court of equity, listening to different sides and seeking to fashion a judgment that fairly accommodated the legitimate competing interests.

Under this approach, the law's expenditure limits were struck down. The limits meant that the total amount of political activity—political speech—had been capped by government. This, the Court stated, was a direct and significant diminution of First Amendment freedoms.

The Court found that with political expenditures, the dangers of corruption and the appearance of corruption were greatly diminished. Large contributions might suggest that a candidate was under the influence of a donor. Not so with expenditures. If contributions were limited but expenditures were not, then candidates could gather smaller contributions from more donors and build a war chest that would underwrite more speech. That was, as the Court saw matters, a First Amendment benefit.

The Court had split the reform initiative in two. Contributions could be limited, expenditures could not. Likewise, wealthy presidential candidates—and recently we have had two, Ross Perot and Steve Forbes—could spend to their hearts’ content. To limit Perot's spending on his own “Ross for Boss” campaign, or Steve Forbes's effort to reassemble the core Reagan constituency, would not pass muster under the First Amendment. The restriction on freedom was too direct, too substantial, to pass muster in light of the attenuated government interest in avoiding the appearance of corruption.

The Supreme Court's surgery was complete. The result was by no means what Congress had envisioned in passing the far-reaching reforms. To the contrary, the Court sent back to Capitol Hill a law remarkably different from the one that had emerged from the post-Watergate debates. In dissent, Chief Justice Burger bewailed what the Court had done. Guided by a libertarian perspective that contributions, like expenditures, constituted protected First Amendment activity, the chief complained that the Court had come up with its own version of “reform.” He warned, prophetically, that the election process was likely to be skewed by this muddled result.

The rest is unfolding political history. The Burger Court's watershed decision in
Buckley v. Valeo
ushered in a world of enormous energy and effort devoted to raising money both “hard” (contributions directly to campaigns subject to the $1,000 limit) and “soft” (unlimited contributions to a political party). Candidates complain about the ceaseless search for funds in what became permanent campaigns for dollars. No one is satisfied with the system, yet no enduring consensus has emerged for campaign finance “reform.” (The much-ballyhooed McCain-Feingold legislation, signed into law in March 2002 by President Bush, is under comprehensive attack by a wide range of individuals and groups, from the ACLU to the Christian Coalition, and it very much remains to be seen what the eventual outcome in the Supreme Court will be in reviewing that 91-page complex set of bewildering campaign finance regulations.)

Years after
Buckley,
the Rehnquist Court had an opportunity to reconsider its analysis and chose to stay the course. At issue in
Nixon v. Shrink Missouri
PAC (2000) was a state statute modeled after the federal law the Court had rewritten in Buckley. Political campaigns in Missouri had given rise to some shady episodes. In particular, a candidate for state treasurer had received large contributions from a Missouri bank, and then upon his election chose the contributing bank as the state's. Missourians were upset, and a statewide referendum imposing contribution caps swept to a landslide victory.

A somewhat marginal candidate for statewide office, Zev David Fredman, assailed Missouri's contribution limits. In his view, the Court's First Amendment law had changed in the years since
Buckley
was handed down. The Court's personnel had undergone an almost complete change since 1976, with only William Rehnquist, now the chief justice, still sitting as the new century dawned. In the interim, in case after case, the Court had held in a variety of settings that government could not restrict speech in order to prevent some
speculative
harm to the public interest. Under this developing body of law, the harm had to be actual, a concrete social evil of real moment, to sustain a curb on speech.

Libertarians sided with Candidate Fredman. Missouri, they thought, was overreacting. There was no demonstrated, systemic evil that the state legislature was trying to prevent. The legislature had simply yielded to the publicity that attended a single or, at most, a handful of episodes where there was no proof of a
quid pro quo.
Fredman and his allies also argued, in a replay of
Buckley,
that challengers needed seed money. If a candidate was not the choice of the existing party apparatus, then it would be very hard for the non-Establishment candidate to muster the necessary resources to get on the ballot or to unseat the favored candidate. These arguments had failed in
Buckley.
Would the deficiencies of the post-
Buckley
system of campaign finance better their chances now? Might
Buckley
be overruled?

The Rehnquist Court, speaking through Justice David Souter, held fast to
Buckley.
No matter how strong the criticisms of the current system, the Court had spoken in 1976, and it would not change its mind. Justice Souter, speaking for a six-member majority, quoted from
Buckley's
strong language condemning large donations to candidates: “[W]e spoke in
Buckley
of the perception of corruption ‘inherent in a regime of large individual financial contributions' to candidates for public office as a source of concern ‘almost equal’ to
quid pro quo
improbity.” Nothing had changed. “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”
Buckley
was still the law of the land.

But how secure was the
Buckley
regime? Suggestions came from President Clinton's two appointees, Justices Ruth Ginsburg and Stephen Breyer, that embraced a very different kind of rationale for regulating campaign finance. Their principle was
equality,
one of the big ideas that move the Rehnquist Court. Leveling the playing field was an important characteristic of campaign finance reform, they maintained, and the political branches should be given ample room to decide how to handle the difficult issues it presents. They embraced the idea that a donor's contribution to a political campaign triggers the First Amendment: “ [A] decision to contribute money to a campaign is a matter of First Amendment concern—not because money is speech (it is not) but because it enables speech.” On the other hand, contribution limits reflect an effort to “protect the integrity of the electoral process— the means through which a free society democratically translates political speech into concrete governmental action.” Invoking the equality principle, they added: “Moreover, by limiting the size of the largest contributions, such restrictions aim to democratize the influence that money itself may bring upon the electoral process.”

Ginsburg and Breyer would take a step in the law that the
Buckley
Court rejected. The
Burger
Court in Buckley dismissed the idea that consensus about equality could justify limits on contributions. This is a broad, recurring question in the law. By definition, equality frequently tugs at freedom. To ensure equality, freedom is curtailed. The civil rights laws of the 1960s, for example, prevented retail establishments, even small ones, from refusing to do business with individuals on account of race or national origin. Equality concerns trumped liberty interests.

But equality in politics is a different matter. The point of running for office is to win it. And winning office often involves hard, thankless tasks. Even if one party has a “lock” on a particular district, there will still be occasions—as when the seat is open—when the competition to win the dominant party's nomination becomes intense. In that setting, winning the money race may be necessary to win the seat. The demand for equality collides with the demand for an open marketplace for political competition.

The seed of an egalitarian approach to campaign finance has now been planted. If the idea grows, it would threaten the other half of
Buckley's
holding, namely its invalidation of limits on expenditures, including those made by wealthy candidates from their own resources. The two Clinton appointees, Justices Ginsburg and Breyer, openly suggested a new, equality-driven approach: “[I]t might prove possible to reinterpret aspects of
Buckley
in light of the
post-Buckley
experience … making less absolute the contribution/expenditure line, particularly in respect to independently wealthy candidates whose expenditures might be considered contributions to their own campaigns.”