Poll Americans on the leading Supreme Court cases of the past 100 years and Buckley v. Valeo, which turns 40 this month, won’t likely place alongside Brown v. Board of Education, Roe v. Wade, or even Citizens United v. FEC. But it should. Buckley, which considered the constitutionality of the Federal Election Campaign Act of 1974, has immeasurably impacted how we choose our leaders and discuss public affairs. Most importantly it created the “Buckley distinction,” which protected political expenditures and contributions differently. This court-created split reverberates beyond campaign electioneering to issues like how the IRS polices politics, how the Department of Justice criminalizes political activity, and how the parties influence campaigns. Four decades on, the distinction’s uneasy compromise supplies Buckley’s relevance—for better and worse.
On the positive side Buckley’s wending opinion cemented its place in First Amendment lore with a single line: “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Buckley thus rejected “political equality”—equity being decided by those in power—as a legitimate reason to subjugate individual speech rights. Instead government could only curtail speech in order to combat “corruption” or its “appearance.”
By forbidding government from rationing speech through equality, Buckley unshackled the political marketplace that has since flourished with competing and diverse voices. Contrarily the Court’s stance provided perpetual heartburn for a generation of would-be speech policers. Politicians who abhor criticism cite equality as a rationale to abate individual First Amendment rights. Academics—particularly the Harvard law faculty—have supplied intellectual support for their fight.
But depending on which Court faction controls, what “corruption” means has sometimes metastasized to include indicia of the equality rationale. It’s gone from quid pro quo—money for official action—to including everything from “access” to politicians, “undue influence” on policy, and unfair “war chests,” and then back again.
Full Article: Buckley v. Valeo at 40 | TheHill.