Free and clean
BY RAPPING THE KNUCKLES of some over-exuberant political reformers in Vermont, the U.S. Supreme Court has sent a welcome signal that it will continue to scrutinize well-intentioned efforts to limit the role of money in politics with at least one eye on the 1st Amendment.
With Chief Justice John G. Roberts Jr. joining the lead opinion by Clinton appointee Justice Stephen G. Breyer, the court this week told Ben & Jerry’s home state that it went too far when it imposed strict limits on what candidates for public office could spend and on what citizens could donate to political campaigns. The ruling suggests that a landmark 1976 campaign-finance decision is still good law.
In that decision, Buckley vs. Valeo, the high court upheld a post-Watergate law’s restrictions on what individuals could contribute to candidates for federal office, but it struck down on 1st Amendment grounds the law’s limits on how much a candidate could spend. Drawing a distinction that remains controversial 30 years later, the court explained that although spending limits and contribution limits raise 1st Amendment concerns, a Congress worried about corruption could put reasonable limits on how much an individual donates to a candidate, because the viewpoint conveyed by a $1,000 donation is the same “general expression of support” that would be conveyed by a larger gift.
By contrast, the Buckley ruling said, a candidate spending his own money is entitled to greater 1st Amendment protection because he is espousing his own views. The same point holds of truly independent expenditures by a candidate’s supporters.
It’s easy to mock this distinction. After all, both campaign contributions and campaign expenditures represent the use of money to produce political results. But Buckley’s two-tier approach makes sense. It was a pragmatic attempt to balance a need for elections uncontaminated by large special-interest contributions with the guarantees of the 1st Amendment, which above all protects political speech.
In striking down Vermont’s expenditure limits, the Roberts court clearly is being faithful to Buckley vs. Valeo. But what about its decision to invalidate Vermont’s limits on contributions? Breyer argued in his opinion that there is no inconsistency because the court in Buckley said that even contribution limits must be “closely drawn” and must not be so low that they prevent candidates from “amassing the resources necessary for effective advocacy.”
Whether Breyer is right about Vermont’s limits, Congress and the states can still impose reasonable limits on contributions. But limitations on spending -- unless candidates voluntarily accept them, in exchange for public financing -- remain off-limits. Buckley’s distinction between expenditures and contributions is still the law of the land. That’s good news for both clean elections and free speech.