Buckley v. Valeo

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Buckley v. Valeo
Reference: 424 U.S. 1
Issue: Campaign finance
Term: 1975
Important Dates
Argued: November 10, 1975 Decided: January 30, 1976
Outcome
United States Court of Appeals for the District of Columbia Circuit affirmed in part and reversed in part United States District Court for the District of Columbia affirmed
Majority
Chief Justice Warren E. Burger • Harry Blackmun • William J. Brennan • Thurgood Marshall • Lewis Powell • William Rehnquist • Potter Stewart • Byron White
Concurring
Burger (in part) • Blackmun (in part) • Marshall (in part) • Rehnquist (in part) • White (in part)
Dissenting
Burger (in part) • Blackmun (in part) • Marshall (in part) • Rehnquist (in part) • White (in part)

Buckley v. Valeo is a case that was argued during the October 1975 term of the U.S. Supreme Court. It involved whether amendments to the Federal Election Campaign Act (FECA), including campaign contribution disclosure and reporting requirements, violated First Amendment speech protections. Argument in the case was held on November 10, 1975. The case came on a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit, and was joined with an appeal between the same parties from the United States District Court for the District of Columbia. On January 30, 1976, the court affirmed in part and reversed in part the judgment of the D.C. Circuit, while affirming the judgment of the district court. Justice William O. Douglas did not participate at oral argument in this case. He retired from the bench two days after arguments concluded, on November 12, 1975. His successor, Justice John Paul Stevens, took no part in the consideration or decision of the cases.

HIGHLIGHTS

The case: In 1971, the Federal Election Campaign Act (FECA) was passed into law. In 1974, Congress amended the law. The amendments put new campaign contribution and expenditure limits into effect, established new disclosure and reporting requirements, and modified the appointment process of commissioners to the Federal Election Commission. Certain provisions of the Internal Revenue Code (Code) were amended in 1974 as well, creating a public financing system for presidential elections under Section H of the Code.

The issue: Did the spending limits mandated by the 1974 amendments to FECA, and related amendments to the Internal Revenue Code, violate freedoms of speech and association protected under the First Amendment as well as rights of due process under the Fifth Amendment?

The outcome: The court affirmed in part and reversed in part the judgment of the D.C. Circuit, while affirming the judgment of the district court. The court underscored a distinction between contributions and expenditures; while upholding FECA's federal campaign contribution limits, the court overturned limits on expenditures. The court felt that limits on campaign contributions "served the government's interest in safeguarding the integrity of elections," but, citing First Amendment concerns, felt that the effect of "expenditure limitations is to restrict the quantity of campaign speech by individuals, groups and candidates." The decision acknowledged that restrictions on campaign limits and expenditures both have potential First Amendment implications, but that the FECA's limitations on expenditures constituted "significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions."

In 1975, Senator James L. Buckley, former presidential candidate Senator Eugene McCarthy, and others filed lawsuits in the United States District Court for the District of Columbia against the Federal Election Commission (FEC) and then Secretary of the Senate Francis Valeo in his capacity as a member of the FEC, challenging the constitutionality of amendments to the Federal Election Campaign Act of 1971 (FECA) and related amendments to the Internal Revenue Code. The FECA amendments "not only required full reporting of campaign contributions and expenditures, but also limited spending on media advertisements." The amendments created the Federal Election Commission (Commission), the agency charged with overseeing federal campaign finance regulation, and also imposed "strict limits on both contributions and expenditures." The amendments to the Internal Revenue Code created a public financing system for presidential campaigns and provided for voluntary contributions to federal funding of presidential campaigns. On certified questions from the district court related to the FECA amendments, the United States Court of Appeals for the District of Columbia Circuit upheld "almost all of the substantive provisions of the FECA with respect to contributions, expenditures and disclosure." The court also sustained the constitutionality of the creation and composition of the Commission. The district court itself upheld amendments to the Internal Revenue Code in a separate action. Oral argument before the U.S. Supreme Court was held on November 10, 1975, and the court issued a per curiam opinion on January 30, 1976. The court affirmed in part and reversed in part the judgment of the D.C. Circuit, while affirming the judgment of the district court.

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Case

Background

In 1975, Senator James L. Buckley, former presidential candidate Senator Eugene McCarthy, and others filed lawsuits in the United States District Court for the District of Columbia against the Federal Election Commission (FEC) and then Secretary of the Senate Francis Valeo in his capacity as a member of the FEC, challenging the constitutionality of amendments to the Federal Election Campaign Act of 1971 (FECA) and related amendments to the Internal Revenue Code. The FECA amendments "not only required full reporting of campaign contributions and expenditures, but also limited spending on media advertisements." The amendments modified the appointment process of commissioners to the Federal Election Commission, the agency charged with overseeing federal campaign finance regulation, and also imposed "strict limits on both contributions and expenditures." The amendments to the Internal Revenue Code created a public financing system for presidential campaigns and provided for voluntary contributions to federal funding of presidential campaigns.

Buckley et al. filed a lawsuit in the United States District Court for the District of Columbia. The suit sought both a declaratory judgment that the major provisions of the Federal Elections Campaign Act (FECA) were unconstitutional. The petitioners also sought injunctive relief against enforcement of those provisions. The petitioners requested a three-judge panel on the district court as to all matters. They also requested certification of constitutional questions and that these questions be sent directly to the United States Court of Appeals for the District of Columbia Circuit. The district court denied the motion for a three-judge panel and, instead, transmitted the case to the D.C. Circuit. The circuit court, in an en banc order, remanded the case back to the district court to "(1) identify the constitutional issues in the complaint; (2) take whatever evidence was found necessary in addition to the submissions suitably dealt with by way of judicial notice; (3) make findings of fact with reference to those issues; and (4) certify the constitutional questions arising from the foregoing steps to the Court of Appeals." The district court conducted findings of fact and transmitted that record back to the circuit court for their review.

On review,

“	...a majority of the Court of Appeals rejected, for the most part, appellants' constitutional attacks. The court found 'a clear and compelling interest,' ... in preserving the integrity of the electoral process. On that basis, the court upheld, with one exception, the substantive provisions of the Act with respect to contributions, expenditures, and disclosure. It also sustained the constitutionality of the newly established Federal Election Commission. The court concluded that, notwithstanding the manner of selection of its members and the breadth of its powers, which included nonlegislative functions, the Commission is a constitutionally authorized agency created to perform primarily legislative functions. The provisions for public funding of the three stages of the Presidential selection process were upheld as a valid exercise of congressional power under the General Welfare Clause of the Constitution, Art. I, § 8.	”
—Buckley v. Valeo (1976)

Petitioners appealed to the Supreme Court of the United States. As the Supreme Court noted, the petitioners argued that the circuit court failed to consider FECA under exacting First Amendment principles -- specifically that limiting use of money for political purposes constituted an unconstitutional restriction on free speech. The petitioners further alleged that FECA's reporting and disclosure provisions unconstitutionally impinged on their First Amendment right to freedom of association, that the public funding provisions for presidential elections violated Subtitle H of the Internal Revenue Code, the General Welfare Clause of the Preamble to the U.S. Constitution, as well as the First and Fifth Amendments, and that the Federal Election Commission was an unconstitutional construct governing federal elections.

Petitioners' challenge

The petitioners challenged the spending limits mandated by the 1974 amendments to FECA, and related amendments to the Internal Revenue Code, as violative of the freedoms of speech and association protected under the First Amendment as well as rights of due process under the Fifth Amendment.

Arguments

Question presented

Question presented: Did the spending limits mandated by the 1974 amendments to FECA, and related amendments to the Internal Revenue Code, violate freedoms of speech and association protected under the First Amendment as well as rights of due process under the Fifth Amendment?

Audio

• Audio of oral argument:
  

For Part I, click here.

For Part II, click here.

Transcript

• Transcript of oral argument:

Highlights from oral argument

At the outset of oral argument, Ralph Winter announced the allocation of argument for both sides, "I will discuss the statutory limits on campaign expenditures by political parties, committees and candidates, limits on contribution to political candidates and limits on independent expenditures. My colleague Mr. Gora will discuss the challenge to the Act's disclosure provisions and this afternoon, Mr. Clagett will argue the unconstitutionality of federal subsidies to political candidates and parties and of the Federal Election Commission. For the Appellees, Mr. Friedman will discuss general principles and the disclosure provisions. Mr. Cox will discuss the limits on expenditures and contributions. In the afternoon, Mr. Cutler will discuss subtitle H and Mr. Spritzer, the constitutional alibi of the Federal Election Commission."

Petitioner's argument

Ralph Winter, Joel Gora, and Brice Cladgett argued the case for petitioners.

1. Congressional authority

Justice William Rehnquist questioned Winter as to whether the disclosure requirements imposed by Congress exceeded the legislature's authority under the First Amendment.

Winter	“ The figures I am discussing right now, demonstrate in their totality, only that large contributors and contributors with improper motives fear disclosure to the voters. ”
Rehnquist	“ Well, Mr. Winter is it your contention that these people would not have contributed, had they had to do so under a disclosure requirement? ”
Winter	“ I think that is very likely true in a large number of cases. I would think -- ”
Rehnquist	“ What is your basis for it? It does not seem to me it is proved by showing that because they could contribute without any disclosure before April 7th, they choose to do that rather than to contribute after April 7th? ”
Winter	“ Well, I think that the best way -- I of course cannot give an equivocal answer that they would not have contributed, but April 7th is a very, very early day and contributions, large contributions after an election are too late for disclosure and particularly in election like 1972 where there was little doubt about the outcome, it seems to me, strongly suggest a powerful desire to avoid disclosure. Now, whether they would given or not, I do not know. I suspect the milk people probably would not have. I suspect in the case of the ambassadorships, they probably would not have, but disclosure does have one virtue that no other remedy has and that is it leaves it to the voter. Even if they did continue to give, the voter would be able to decide in each case whether he -- whether that voter thought that a particular candidate was going to be overly beholden to, if you want to call them special interest, was receiving to many large contributions from a particular source, whether people will continue to give after effective disclosure depends on what the voters think and that is the way it should be in a democratic system. ”
Rehnquist	“ Now, Congress has apparently decided otherwise in this case? They have said that they do not want people to appear to beholden, even though the voters knowing that they appear to be beholden would nonetheless elect them. It that an impermissible judgment for Congress to make? ”
Winter	“ Yes, I think it is impermissible for Congress to attempt to bring about these remedies by lowering the level of political communication when disclosure is available and when other remedies are also available. Remedy such as prohibitions on large late contributions which is certainly a viable remedy, it responds to everything that was cited in support of the FECA and it is not in the statute. I think that, while Congress in deciding to have disclosure, has considerable discretion in determining what kind of disclosure and when, but I do not think that they can really try, that they can remedy this by stopping essentially political speech. ”

2. The line on disclosure

Several justices questioned Joel Gora as to where the line should be drawn for a mandatory disclosure amount in order to satisfy the Congress' interest in preventing corruption.

Rehnquist	“ Before you leave that point, if we say $100.00 is too low a threshold, we would surely have to articulate some basis for our reasoning as to why $100.00 is too low, but some other figure would be acceptable? ”
Gora	“ Well, I think the basis is to look for the purpose of disclosure. The primary purpose that has been advanced for it is the preventing of corruption and improper influence on Governmental officials. I think this Court could in a constitutional way require that the disclosure provisions be geared to the level at which improper influence can be brought to bear by virtue of a contribution. ”
Brennan	“ But how do we know that? ”
Gora	“ Well, I think Justice Brennan, I do not think it is this Court obligation to pinpoint that I think it is -- ”
Brennan	“ Are you suggesting we should pick out $1,000.00 or 500 -- ”
Gora	“ No. I think that this Court should require the Congress to look at these problems and to draw some lines. I have looked at a good chunk of the alleged -- ”
Brennan	“ I must say if that's so then the answer Mr. Justice Stewart's questions is that there isn't anything left and we have to strike it down facially -- ”
Gora	“ There, I think there is a difference between the minority party point, but there lines in the other Section of this Act, regrettably lines which discriminating against minority party and the threshold problem which is a little harder to make distinctions on, but I would suggest that the problem is that Congress seemed to me, to my study of the legislative history to be essentially indifferent to these problems. And I think what we would request of this Court is that Congress be required to think about these things, to think about whether you really want to require the public identification of the $125,000.00 contributor to the small party or even to the Presidential Party. ”
Rehnquist	“ Should we include that in our opinion that the Congress ought to think more carefully about this? ”
Gora	“ Well, one would certainly hope so, but I think that as I said there are basis in the statute Justice Rehnquist for validating the application to smaller and minor parties. The threshold problem presents a different one -- ”
Burger	“ I take your argument Mr. Gora, to be that there is no valid rational public interest in flushing out in publicizing the names of $100.00 contributors or $101.00 contributors, none that can be justified constitutionally, but that there is indeed a real public interest in knowing about $10,000.00 or a $100,000.00 or $500,000.00, is that true? ”
Gora	“ Yes, that is our essential submission that in -- ”
Burger	“ You cannot pick the point where the line should be drawn? ”
Gora	“ Well, again the point I think has to be attempted to be drawn in reference to the purpose of having disclosure. If the purpose is not just promiscuous to find out whether your neighbor gives 125 bucks to the local congressional candidate, there is a presumption that is one's politics are one's own business. That is why when the purpose is in terms of the prevention of corruption then this Court and the Congress must ask whether the disclosure levels are drawn to meet that purpose, that is what we are saying. ”
Burger	“ We must mean in there that the public interest in knowing about the large one is that $10,000.00 or $100,000.00 or $500,000.00 might conceivably buy something improperly, but that $100.00 or $125.00 could not conceivably buy anything -- ”
Gora	“ Precisely our point. ”
Burger	“ -- these days? ”
Gora	“ Yes, Mr. Chief Justice, that is our point -- ”
Burger	“ It does not buy much radio time; it does not buy much newspaper space and certainly not much influence? ”
Gora	“ That is the argument. ”

Respondent's argument

Deputy solicitor general Daniel Friedman, former U.S. solicitor general Archibald Cox, Lloyd Cutler, and Ralph Spritzer argued the case for respondents.

1. First Amendment concerns

Chief Justice Burger and Justice Stewart questioned Archibald Cox on the First Amendment implications of the disclosure and expenditure limits.

Burger	“ Mr. Cox could the limits that is the disclosure limits, the $100.00 limit, the $1,000.00 limit, the expenditure limit couldn't they be so low or if they were cast so low, do you agree that they might then impinge on First Amendment rights? ”
Cox	“ I would. I would agree to two things that if they are set so low as really not to allow any use of the mass media that would present a very different case in the one here. I would agree too that if they were set very, very low they might then discriminate against challengers to incumbents, but on both points I submit Mr. Chief Justice that the record is very clear that that it is not the consequence of the statute. In terms of the expenditure ceilings it is quite clear and the figures are all in our brief, that the ceilings are very close to those which have governed in political campaigns in the past. For example in 1972 and 1974 lumping the whole 2000 candidates for the house together, 97% spent less than the ceiling. There is now suggestion that there was inadequate speech in those 97% of the campaigns. Even in the case of presidential elections, the figure is very close to the average amount spent by the two candidates in 1968. It is a little bit above the amount -- a little bit below the amount spent by Senator McGovern in 1972. It is way below the amount spent by his opponent, but it is higher than we spend in any previous campaign so that we say that it is closely related to what took place in the past. That one has to conclude that Congress had a solid basis for judging that this would not seriously curtail the volume of political speech. ”
Stewart	“ I want to be sure that I understand your answer to the Chief Justice's question. You said that you would agree or you would believe that if the limits were set lower that there could be a point where they were I permissively low as a constitutional matter, is that your answer? ”
Cox	“ Yes. ”
Stewart	“ Now, the limits on what contribution and expenditures be low -- ”
Cox	“ I was speaking of overall limits on expenditures. ”
Stewart	“ Now, the limits on what contribution and expenditures be low -- ”
Cox	“ I was speaking of overall limits on expenditures. ”
Stewart	“ How about disclosure? ”
Cox	“ Disclosure, I did not in my answer have that in mind. I do not think the limit on disclosure, that there is any reason to suppose that will affect the volume of speech at all, not just like -- ”
Stewart	“ In other words which would be just as constitutional, would it not, in your submission to require disclosure of a $1.00 contributor as it would be a million dollar contributor, so far as the constitution goes? ”
Cox	“ Well, the constitutional argument is stronger in a case of requiring the disclosure -- ”
Stewart	“ Why? ”
Cox	“ Because there is more danger of the million dollar contribution being corrupted and there is more reason for the public to wish to know who is giving a million dollars to a political campaign. ”
Stewart	“ That is there is a greater invasion with respect to the -- ”
Cox	“ A greater what? ”
Stewart	“ Invasion of privacy with respect to the large contributor -- ”
Cox	“ No, I think the change in balance, if any, is on the justification, not on the invasion. So far as this record shows, there is very little -- there is no showing of any deterrent effect that disclosure. These laws have been on the books for a very long time. Of course if one could contribute, especially if it is a group of corporate executives that are contributing they rather contribute before the disclosure law becomes effective than after as one of the Justices find it out, that does not show they would not contribute there. ”

Outcome

Decision

In a per curiam opinion, the court affirmed in part and reversed in part the judgment of the D.C. Circuit, while affirming the judgment of the district court. Justices Brennan, Powell, and Stewart joined the court's per curiam opinion in full. Chief Justice Burger, Justice Blackmun, Justice Marshall, Justice Rehnquist, and Justice White each wrote opinions concurring in part and dissenting in part from the per curiam opinion. Justice Douglas did not participate at oral argument in this case. He retired from the bench two days after arguments concluded, on November 12, 1975. His successor, Justice Stevens, took no part in the consideration or decision of the cases.

Opinion

The Supreme Court's decision underscored a distinction between contributions and expenditures by upholding FECA's federal campaign contribution limits, while overturning limits on expenditures. The court felt that limits on campaign contributions "served the government's interest in safeguarding the integrity of elections," but, citing First Amendment concerns, felt that the effect of "expenditure limitations is to restrict the quantity of campaign speech by individuals, groups and candidates." The decision acknowledged that restrictions on campaign limits and expenditures both have potential First Amendment implications, but that the FECA's limitations on expenditures constituted "significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions."

The decision also upheld some disclosure requirements as well as provisions in the FECA concerning public funding of campaigns. The decision overturned the FECA's method for appointing FEC members as an unconstitutional delegation of power, since Congress appointed members rather than the Executive. For a brief period of time, beginning on March 22, 1976, the FEC was consequently unable to exercise its executive authority. The "agency resumed full activity in May, when, under the 1976 amendments to the FECA, the Commission was reconstituted and the President appointed six Commission members, who were confirmed by the Senate."

Other opinions

Five justices authored opinions concurring in part and dissenting in part from the court's per curiam opinion. The excerpts below are listed in order of judicial seniority, beginning with the chief justice as the most senior.

Chief Justice Burger

Chief Justice Burger announced that he would "dissent from those parts of the Court's holding sustaining the statutory provisions (a) for disclosure of small contributions, (b) for limitations on contributions, and (c) for public financing of Presidential campaigns. In my view, the Act's disclosure scheme is impermissibly broad and violative of the First Amendment as it relates to reporting contributions in excess of $10 and $100. The contribution limitations infringe on First Amendment liberties and suffer from the same infirmities that the Court correctly sees in the expenditure ceilings. The system for public financing of Presidential campaigns is, in my judgment, an impermissible intrusion by the Government into the traditionally private political process."

Justice White

Justice White announced that "The disclosure requirements and the limitations on contributions and expenditures are challenged as invalid abridgments of the right of free speech protected by the First Amendment. I would reject these challenges. I agree with the Court's conclusion and much of its opinion with respect to sustaining the disclosure provisions. I am also in agreement with the Court's judgment upholding the limitations on contributions. I dissent, however, from the Court's view that the expenditure limitations ... violate the First Amendment. "

Justice Marshall

Justice Marshall announced that he would join the entirety of the court's opinion except for the section that limited "the amount a candidate may spend from his personal funds, or family funds under his control, in connection with his campaigns during any calendar year ... '[T]he First Amendment,' the Court explains, 'simply cannot tolerate 608 (a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy.' I disagree ... I think it clear that that goal justifies 608 (a)'s limits when they are considered in conjunction with the remainder of the Act."

Justice Blackmun

Justice Blackmun dissented from the portions of the court's opinion distinguishing between contribution and expenditure limits because, in his words, "I am not persuaded that the Court makes, or indeed is able to make, a principled constitutional distinction between the contribution limitations, on the one hand, and the expenditure limitations, on the other, that are involved here."

Justice Rehnquist

Justice Rehnquist stipulated that "I am of the opinion that not all of the strictures which the First Amendment imposes upon Congress are carried over against the States by the Fourteenth Amendment, but rather that it is only the 'general principle' of free speech ... that the latter incorporates ... Given this view, cases which deal with state restrictions on First Amendment freedoms are not fungible with those which deal with restrictions imposed by the Federal Government, and cases which deal with the government as employer or proprietor are not fungible with those which deal with the government as a lawmaker enacting criminal statutes applying to the population generally. The statute before us was enacted by Congress, not with the aim of managing the Government's property nor of regulating the conditions of Government employment, but rather with a view to the regulation of the citizenry as a whole. The case for me, then, presents the First Amendment interests of the appellants at their strongest, and the legislative authority of Congress in the position where it is most vulnerable to First Amendment attacks. While this approach undoubtedly differs from some of the underlying assumptions in the opinion of the Court, opinions are written not to explore abstract propositions of law but to decide concrete cases. I therefore join in all of the Court's opinion except Part III-B-1, which sustains, against appellants' First and Fifth Amendment challenges, the disparities found in the congressional plan for financing general Presidential elections between the two major parties, on the one hand, and minor parties and candidacies on the other."

Legacy

Express advocacy and issue advocacy

See also: Express advocacy and Issue advocacy

As part of the Buckley ruling, the court overturned FECA disclosure requirements for independent expenditures made “for the purpose of...influencing” federal elections. Addressing the ambiguity that the phrase “for the purpose of...influencing” posed relative to the First Amendment, the court's decision established two types of political advertising: express advocacy and issue advocacy. Express advocacy advertisements explicitly recommend election or defeat of a candidate. Under the decision, express advocacy remained subject to disclosure regulations. Issue advocacy advertisements, on the other hand, educate voters on broader issues; they are not campaign-oriented. In establishing the distinction, the court ensured that regulations would apply to "spending that is unambiguously related to the campaign of a particular federal candidate." Issue advocacy would face no limitations under the First Amendment.

The decision established a test by which to judge whether political advertisements were express advocacy or issue advocacy by use of the “magic words,” which are "clear expressions of support or opposition" for some electoral outcome. Examples of clear expression or opposition include the terms “vote for,” “election,” "support,” "vote against,” “defeat” and "reject.” Advertisements avoiding those magic words are not considered express advocacy; rather, they are considered issue advocacy.

Legacy

On May 11, 1976, amendments were made to the FECA that repealed expenditure limits in accordance with the court's decision. The amendments, however, also placed limits on political action committee (PAC) fundraising by corporations and unions by "specifying who could be solicited and how solicitations would be conducted. In addition, a single contribution limit was adopted for all PACs established by the same union or corporation."

Several major cases involving contribution limits and corporate expenditures followed. In 2010, the Supreme Court decided in Citizens United v. Federal Election Commission that corporate funding of independent political broadcasts in candidate elections cannot be limited, because doing so would be in noncompliance with the First Amendment.

In 2014, the Supreme Court decided in McCutcheon v. Federal Election Commission to overturn biennial campaign contribution limits. The decision affirmed the federal government's right under Buckley to place certain limits on contributions "to protect against corruption or the appearance of corruption." Chief Justice Roberts noted, however, that "[s]pending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption." Though the decision in McCutcheon struck down biennial aggregate limits as unconstitutional, the amount an individual can contribute per federal candidate did not change. Individuals may, as of 2016, contribute to as many federal candidates as they want, but may only contribute up to $2,700 in each case.

See also

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  Supreme Court cases, October term 2016-2017

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  Supreme Court of the United States

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  History of the Supreme Court