Most non-lawyers only vaguely, at best, know about the U.S. Supreme Court’s decision in Buckley vs. Valeo. However, Buckley was the 1970s equivalent of Citizens United. And it is a major factor in the modern campaign finance system and the candidates that are running for President.
In the early 1970s, Congress passed two laws related to campaign finance — the Federal Election Campaign Act of 1971 and a set of amendments in 1974. Some of the provisions of these two statutes are familiar to people who follow politics because the Supreme Court upheld them. These laws established the limits on contributions to campaigns — both by individuals and by political action committees and required campaigns to report donations. The law also established the system of public funding of presidential campaigns which is still nominally on the books. (Simply put, the law on public financing and the resources for public financing have not kept up with the ability of candidates to raise funds through various means including the internet. Candidates can easily raise a level of funding that vastly exceeds the expenditure limits that are associated with accepting public finance. And once one candidate opts to forego public financing, the rest of the candidates have to exceed those limits too.)
What most people do not remember is that these laws placed limits on expenditure in federal elections and restricted the ability of candidates to self-fund. While the Supreme Court did not directly state that spending is speech, it did note that spending by a political campaigns is connected to its ability to speak and communicate the candidate’s message. As a result, the Supreme Court found that mandatory limits on campaign expenditures (as opposed to the voluntary limits that went with accepting public funding) and any limits on independent expenditures were unconstitutional. While this part of the ruling ultimately led to PACs and Super-PACs having the ability to run their own ads supporting and attacking candidates, that power mostly impacts things at the end of the process.
For the modern election system, the more significant part of the ruling was the decision striking down the limits on self-funding. This part of the ruling flows from the justification that the Supreme Court gave for upholding the limits on contributions from donors. By recognizing that the campaign process is at the core of the First Amendment, the Supreme Court effectively required significant reasons for restrictions on the campaign process. And for donations, the justification was to avoid the appearance of corruption from donors exchanging campaign contributions for favorable votes. When candidates spend their own money, there is no claim that the candidate/elected official is taking a stand on the issues to get the donation from the candidate. As the corruption justification did not apply to the limits on self-funding, the Supreme Court struck down the limits on self-funding.
The result of Buckley impacts all levels of federal elections. Particularly for long-shot races, parties love candidates who have the resources to self-fund because that allows the parties to focus on other races. But in the past several cycles, it has begun to creep into presidential politics. Separate from the merits of individual candidates, there is something wrong with the ability of a Donald Trump to buy a place on the stage simply because he is willing to spending $100 million of his own wealth to flood the airways. Business success (or the illusion of business success) does not, by itself, demonstrate the skills necessary to be an effective president or senator or representative. The past four years is a good demonstration that business practices — especially a certain set of business practices that apply to family-held businesses where the CEO answers to nobody — do not translate well to our divided system of government.
Of course, Buckley sets limits on what legal restrictions can be placed on self-funding campaigns. It is up to voters to do the rest — to demand that self-funding candidates demonstrate that they get the difference between business and government; to demand that self-funding candidates have actual plausible ideas of what they want to do in government; and to avoid turning to business candidates simply because we want something different. Personal wealth can buy campaign ads and a campaign infrastructure, but it’s up to us whether it can buy enough votes to win. In 2016, unfortunately, it did, and we are paying the price. The question is will future elections be different.
