Buckley is dead, long live Buckley: the new campaign finance incoherence of McConnell v. Federal Election Commission.

• Author: Hasen, Richard L.
• Position: Symposium: The Law of Democracy

The Supreme Court's recent decision in McConnell v. Federal Election Commission (1) marks the culmination of an effort begun in 2000 to shift the Court's campaign finance jurisprudence in an important, though potentially dangerous, direction. Under pre-2000 jurisprudence, the Court (with one notable exception) (2) upheld campaign finance laws only when the government demonstrated, with a reasonable amount of evidence, that the laws were closely drawn to prevent corruption or the appearance of corruption. The new jurisprudence, while purporting to apply the same anticorruption standard, does so with a new and extensive deference to legislative judgments on both the need for campaign finance regulation and the proper means to achieve it.

There are signs that this shift is not merely the slipping of existing standards. Rather, it appears that the Court's jurisprudence is moving in the direction proposed by Justice Breyer, toward upholding campaign finance laws that promote a kind of political equality. Justice Breyer termed the rationale a "general participatory self-government objective," (3) and explained its aim "to democratize the influence that money can bring to bear upon the electoral process, thereby building public confidence in that process, broadening the base of a candidate's meaningful financial support, and encouraging greater public participation." (4)

This apparent shift might be welcome news for those who believe that the Court was previously too restrictive of efforts to limit the role of money in politics in order to promote greater political equality. (5) But the means by which the Court has undertaken this shift have proven problematic. The Court has continued to entertain the fiction that it is adhering to the anticorruption rationale of Buckley v. Valeo, (6) perhaps because one or two members of the five-Justice majority making the shift in McConnell may be unwilling (at least now) to expressly embrace Justice Breyer's participatory self-government rationale. (7) In order to uphold bolder campaign finance laws purportedly under the Buckley standard, the Court has: (1) reduced the evidentiary burden that the government must meet to show that a law is necessary to combat corruption or its appearance; (2) relaxed the level of scrutiny applicable to reviewing campaign finance regulation; and (3) especially in the McConnell case, engaged in unusually sloppy and incomplete reasoning to justify its holdings. The result is jurisprudential incoherence and a lead opinion in the most important campaign finance case in a generation that appears to pay only cursory attention to the First Amendment interests that must be balanced in evaluating any campaign finance regime.

Justice Breyer, in setting forth his participatory self-government rationale, has noted the Court's important role both in balancing competing constitutional interests and in "evaluating the risk that reform legislation will defeat the very objective of participatory self-government itself; for example, where laws would set limits so low that by elevating the reputation-related or media-related advantages of incumbency to the point where they would insulate incumbents from effective challenge." (8) The Court, however, has failed to meaningfully balance or closely examine new campaign finance laws for self-dealing. Indeed, in McConnell, the Court in the joint majority opinion (9) appears to abdicate its role in this regard, hiding behind platitudes about evidentiary burdens and levels of scrutiny in upholding various aspects of the Bipartisan Campaign Reform Act of 2002 (BCRA). (10)

Three examples demonstrate McConnell's failure. First, the joint majority opinion cannot persuasively explain under the Buckley anticorruption standard why it is permissible for Congress to regulate the fundraising and spending of local political parties and candidates absent any evidence that local political parties or candidates can serve as conduits for corruption of federal officials. The majority's attempt to distinguish the activities of political talk show hosts and newspaper editors as non-regulable only further muddles the analysis. Second, the joint majority opinion fails to engage in a serious analysis of the potential overbreadth issues raised by regulating election-time advertisements that may not in fact be intended to influence and may not even affect federal elections. Thus, the majority never expressly considers whether the statute, under Justice Breyer's standard, "strike[s] a reasonable balance between [its] electoral speech-restricting and speech-enhancing consequences." (11) Third, the joint majority opinion never even mentions, much less explains, how the rationale that would support regulating corporate-funded election-related spending could apply to union-funded election-related spending. (12)

The participatory self-government rationale may provide a persuasive reason for the Court to have upheld these provisions. But the analysis is difficult and subtle. Shoehorning it into a Buckley anticorruption analysis has done everyone a disservice, giving short shrift to competing First Amendment values and threatening to undermine the very participatory self-government goals favored by at least some members of the McConnell majority.

This Article proceeds as follows. Part I briefly surveys the pre-McConnell campaign finance jurisprudence, contrasting Buckley and the pre-2000 cases on the one hand, with the Court's three post-2000, pre-McConnell cases on the other. The recent trend, even before McConnell, is inconsistent with the Buckley rationale, at least as Buckley has been traditionally understood. The Court has replaced a general skepticism of campaign finance regulation with unprecedented deference to legislative determinations on both the need for regulation and the means best suited to achieve regulatory goals.

Part II uses three examples from the McConnell joint majority opinion to demonstrate how the case fits into the new deferential post-2000 campaign finance jurisprudence.

Part III points to signs apparent in the post-2000 jurisprudence, and intensified in McConnell, that the Court is moving toward endorsing the participatory self-government rationale for campaign finance regulation.

Part IV argues that that if indeed the Court is moving toward endorsement of the participatory self-government rationale, it should do so more carefully. Thus far, the Court has given only lip service to the requirement that it balance competing interests and police campaign finance measures for legislative self-dealing. Had the Court engaged in such balancing and policing in McConnell, it might have articulated a more coherent and subtle explanation for upholding--or perhaps even struck down some of---the major provisions of BCRA. At the very least, had the Court engaged in more careful analysis it would not have been faulted for giving First Amendment concerns short shrift. Part IV concludes by examining the danger that the Court eventually will eviscerate the distinction between contributions and expenditures without taking into account a key requirement of the participatory self-government rationale: the need for vibrant election-related participation by a large group of non-governmental actors. In particular, Part IV concludes that the Court should be wary of approving any additional expenditure limits that are not coupled with a leveling-up mechanism, such as a broad public financing program.

Depending upon the next appointments to the Supreme Court, the campaign finance jurisprudential shift, currently hanging by a one-vote majority, could be short-lived or long-lived. At least for the near term, and perhaps for much longer, it will be important to bring some coherence to the Court's analysis in this area. This Article is a modest effort in this regard.

1. BEFORE MCCONNELL: THE SLOW DEATH OF BUCKLEY

   1. From Buckley into the 1980s: Court Skepticism of Campaign Finance Regulation

      If, as it appears, McConnell was a compromise decision drafted to take into account the competing and sometimes contradictory views of the members of its majority, it is in good company. Buckley itself was drafted by committee, and some of its internal inconsistencies may best be explained by tensions in reasoning among the authors of its various parts. (13)

      The majority and dissenting opinions in McConnell devote many pages to debating the joint majority opinion's fidelity--or lack thereof--to Buckley; (14) legal commentators have also begun tackling this issue. (15) Therefore, this Part gives only a brief description intended to show the shift from past to present (16) and to orient readers unfamiliar with the campaign finance landscape to the important precedents discussed throughout the rest of this Article. Readers already familiar with the major campaign finance decisions may wish to skip to Part II.

      The Supreme Court's 1976 Buckley case considered the constitutionality of much of the 1974 Amendments to the Federal Election Campaign Act (FECA). (17) The FECA Amendments were complex; they provided for, among other things: (1) limits on the amounts that individuals or organizations could contribute to candidates ("contribution limits"); (18) (2) limits on the amounts that individuals or organizations could spend, independently of candidates, to support or oppose candidates for federal office ("expenditure limits"); (19) (3) public financing for major presidential candidates; (20) and (4) the creation of the Federal Election Commission. (21) The Court upheld FECA's contribution limits, struck down the expenditure limits, upheld the public financing system, and struck down the means for the appointment of members of the FEC. (22)

      Most notable for our purposes is the Court's decision to uphold the campaign contribution limits but to strike down the expenditure limits. Although recognizing that any law regulating campaign financing was subject to the...