Event Reminder: CCP-Cato Institute Conference TODAY: The Past and Future of Buckley v. Valeo PLEASE NOTE: The LOCATION and TIME for the event has changed
Due to the weekend blizzard, the location of this event has been changed to the Renaissance DC Downtown Hotel, 999 9th St NW, Washington DC. The event will take place in the Congressional A ballroom section. The program now begins at 11:00 AM and concludes at 3:30 PM. A complimentary luncheon will still be provided. Guests are welcome to attend for all or a portion of the event. More information, including an updated agenda can be found here.
On January 30, 1976, the United States Supreme Court handed down Buckley v. Valeo, still its most important decision at the intersection of campaign finance and the First Amendment. The Court brought forth a per curiam opinion that invalidated significant parts of the 1974 amendments to the Federal Election Campaign Act. The Buckley Court denied Congress the power to limit campaign spending. But not completely. The same Court decided Congress could restrict contributions to candidates to prevent quid pro quo corruption or “the appearance of corruption.” Giving citizens an “equal voice” in elections, however, could not justify suppressing speech.
Buckley remains a vital precedent that restrains and empowers Congress. But should Buckley be considered a First Amendment failure? Or did it embrace inevitable compromises that were both worse and better than everyone desired? How does Buckley affect the law and American politics and campaigning today? Does the decision have a future? Please join us to discuss these essential questions of First Amendment law and politics.
In the News
The Hill: Buckley v. Valeo at 40
Paul H. Jossey
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.
The Progressive: Dark Money’s Front Man
In November 2013, a little-known conservative activist named Eric O’Keefe brazenly disobeyed a court order and leaked information to The Wall Street Journal editorial page about a secret “John Doe” investigation involving campaign finance violations by political operatives surrounding Wisconsin Governor Scott Walker. O’Keefe’s group, the conservative Wisconsin Club for Growth, was among the parties being investigated.
It was the beginning of an extraordinary scorched-earth campaign by O’Keefe to harass and undermine the John Doe investigators, who had targeted alleged illegal coordination between Walker and conservative groups including Club for Growth and Wisconsin Manufacturers and Commerce…
A fierce opponent of the McCain-Feingold law’s campaign finance restrictions, O’Keefe helped create the Center for Competitive Politics in 2005. The group filed briefs in Citizens United, the 2010 Supreme Court case that allows unlimited campaign donations by corporations and unions to the kind of independent advocacy groups O’Keefe has used to target incumbents for defeat. This greatly expanded the political might of these groups, many of which do not disclose their donors.
Daily Beast: Sarah Palin’s PAC Is Up to Its Old Money Tricks
According to Federal Election Commission reports, in the first six months of last year, Sarah PAC—Palin’s organization that purports to be dedicated “to help[ing] elect principled, conservative leaders” spent $16,062 on a private charter in Jackson, Wyoming, $3,855 on a “car and driver” in Long Island City, New York, and a total of $4,364 at La Playa Hotel in Naples, Florida.
So as much as Palin rages against the Washington political machine, the consultant class and all the “elites,” the spending by Sarah PAC shows that it remains the same lifestyle-fundin’, consultant-payin’ organization it has been since she launched it in 2009.
Daily Beast: Scott Walker’s Zombie Scam PAC
Adams’ scheme was similar: by paying for access to email lists, his super PAC sent 50 million emails out to known conservatives over four months, claiming to be raising cash to support Walker’s presidential bid. He raised $161,553 through this method last year.
Of this, the super PAC only spent $5,637 to directly support Walker’s campaign, all on lapel pins from a company called ‘GOP Swag’ in Florida.
On the other hand, close to $70,000 went to Opinion Strategies, an organization registered in West Virginia to… you guessed it, Robert Adams. The money went to ‘PAC management,’ ‘email list rental’ and ‘travel/meals.’
More Soft Money Hard Law: The Van Hollen Case: the Roberts Court Under Fire, Not From the Usual Suspects
For a few years now, the case against the 1970’s reforms has turned from spending restrictions eliminated or weakened by other developments—e.g. Supreme Court rulings—to disclosure. The Supreme Court seemed to hold out on disclosure, offering it up as the backstop as other rules fell. This appeals court suggests that the Court got it wrong, and that its disclosure jurisprudence will eventually collapse as the speech-transparency conflict becomes inescapable. Van Hollen is significant primarily as a sharp challenge to the Court majority on these issues, but from an unusual direction—judges critical of what remains of the Buckley framework for campaign finance regulation who believe that the Roberts majority is not critical enough..
FiveThirtyEight: The Republican Party May Be Failing
The caricature of the book seems to be this: “The Party Decides” posits a clash between “the establishment” and rank-and-file voters and claims that the establishment always prevails. But that’s not really what the book says. Instead, the book argues that the major American political parties are broad and diverse coalitions of politicians, activists and interest groups, many of whom would never think of themselves as belonging to the political establishment.
However, the book does presume that, in part because of their breadth and diversity, American political parties are strong institutions. Furthermore, it assumes that strong, highly functional parties are able to make presidential nominations that further the party’s best interest.
For a variety of reasons, the nomination of Donald Trump would probably not be in the best interest of the Republican Party. Such an outcome this year, which seems increasingly likely, would either imply that the book’s hypothesis was wrong all along — or that the current Republican Party is weak and dysfunctional and perhaps in the midst of a realignment.
Seattle Post-Intelligencer: Ben & Jerry’s founder backs Sanders with ‘Bernie’s Yearning’ ice cream
Cohen has come up with a new flavor of ice cream, called “Bernie’s Yearning,” tweeting: “A new Bernie Sanders ice cream was born.”
“Nothing is so unstoppable as a flavor whose time has finally come #Feel the Bern@Bernie’s Yearning,” Cohen wrote on Facebook.
The ice cream is not for mass distribution, but only for a select few. The Sanders campaign has set up a contest for some lucky supporter to win 40 pints.”
Bernie’s Yearning consists of a milk chocolate disk covering the top of a plain mint ice cream. It is, Cohen told MSNBC, designed to show that “the huge majority of economic gains that have gone to the top 1% since the Great Recession.”
New York Times: Radically Revise Campaign Laws to Give People, Not Billionaires, a Voice
Richard L. Hasen
It’s not a new story: Some Americans are looking to the super wealthy to get us out of a political jam. This time, it might be billionaire Michael Bloomberg supposedly saving the country from a Donald Trump-Bernie Sanders race that could leave many voters without an acceptable alternative. Back in 1967, it was the GM heir Stewart Mott providing (what was then considered to be) lots of money to allow Sen. Eugene McCarthy of Wisconsin to challenge President Lyndon B. Johnson for the Democratic nomination. Johnson, mired in the Vietnam War and wounded by McCarthy, eventually withdrew from the race.
The McCarthy-Mott story is one that opponents of campaign finance limits point to in arguing against campaign finance limits. They contend we need billionaires at the ready in case our democracy gets in trouble.
Candidates and Campaigns
New York Magazine: Zephyr Teachout Is Running for Congress
Zephyr Teachout, a progressive activist and law professor who did surprisingly well in the 2014 gubernatorial primary against Andrew Cuomo, just announced on Monday that she plans to run for the open seat in Hudson Valley’s District 19.
The incumbent representative, moderate Republican Chris Gibson, is retiring, and Democrats are exceptionally eager to take back the district, which tends to vote Democratic during presidential elections, although it is rural enough that it can swing red in midterms or close legislative races.
New York Times: As Donald Trump and Ted Cruz Soar, G.O.P. Leaders’ Exasperation Grows
Republican leaders are growing alarmed by the ferocious ways the party’s mainstream candidates for president are attacking one another, and they fear that time is running out for any of them to emerge as a credible alternative to Donald J. Trump or Senator Ted Cruz of Texas.
Leaders of the Republican establishment, made up of elected officials, lobbyists and donors, are also sending a message to the mainstream candidates, such as former Gov. Jeb Bush of Florida, that they should withdraw from the race if they do not show strength soon.
Fort Worth Star-Telegram: Billionaire donors helped Ted Cruz rise in GOP presidential bid
Julie Bykowicz, Associated Press
Since mid-December, the Keep the Promise super PACs have documented about $4 million in independent expenditures to help Cruz or attack other candidates – most often Florida Sen. Marco Rubio, federal election records show.
The super PACs have been identifying and connecting with Cruz voters through digital ads and door-knocking, and recently began a multimillion-dollar TV ad campaign. A Keep the Promise van tailed the Cruz campaign bus as it made its way through Iowa last week. Super PAC workers handed out thousands of “Choose Cruz” yard signs.
For the megadonors, it’s no surprise that Cruz seems to be well-positioned heading into the primaries. In mid-July, Keep the Promise posted on its website a slide-show presentation called “Can He Win?” The document predicted it would be “very difficult for Establishment to destroy the conservative challenger.”
Ozarks First: Nixon’s Final Address Hints at Potentially Tough Session
“He would like the legislature to push farther in ethics reform than it appears they’re likely to do. Campaign finance [reform] probably will not be part of any package they ultimately produce,” said Squire. “I think that there’s common ground that they want to pursue on increasing funding for transportation, and we’ll see whether they can get any of that through the House.”
Squire thinks Nixon reminded the legislature they can still accomplish more by working together in his final year.
Law 360: Ill. PAC Says Campaign Finance Laws Trample 1st Amendment
Diana Novak Jones
An Illinois political action committee decried the state’s campaign finance laws in opening statements of a bench trial addressing their constitutionality Monday, saying state legislators exempted political parties and candidates from most limits on donations as part of a scheme to stay in power.