The SCOTUSblog symposium on the McCutcheon case continued with postings on various aspects of the speech and government interests involved in the contribution/expenditure distinction. Justin Levitt argues that overall, in granting more protection to expenditures, the distinction correctly ranks the speech values. The independent expenditure is pure self-expression, the spender’s “unique” view; the contribution helps the candidate’s speech, and as he may speak as he pleases, the message he communicates and the “unique” view of the contributor may well diverge. Tamara Piety affirms the Court’s view that “the expressive interests of contributions are minimal” and that restrictions on them may be necessary to protect against loss of public confidence in government, to enhance the competitiveness of elections, and to focus governmental energies on voters and not contributors.

What this analysis misses in following Buckley is the difference between an interest in speaking about politics, and an interest in effective political speech. The contribution and expenditure distinction is rooted in the first of these interests, and it is for this reason that the expenditure is the constitutionally privileged form of speech. In the Buckley view, the spender speaking just for herself may well treasure volume; the more said, the better, in order to drive the points home. By contrast, because the contributor supposedly speaks through another, “by proxy,” a strictly limited amount given still completes the expressive act of association and fully vindicates this more limited First Amendment interest. The contributor, however, in funding candidate speech is motivated by a deeper interest than Buckley accounts for—an interest in effective political speech.

The candidate converts the contributions received into the appeal or argument she believes best calculated to achieve victory. This does not mean that the “message” the contributor is funding will be cynically sacrificed to other goals or messages the supporter does not care for. The donor supporting a candidate committed to tax reform just depends on the candidate to develop a complex of messages, to build them into a persuasive case to the voters that will win out the end, resulting in victory for—a candidate who supports tax reform.

By ignoring this difference—by elevating the value of “direct” personal speech over the value of effective “proxy” political speech—the Court drains speech of much of its political content. The contributor does not fund speech to the candidate for the same reasons, to the end of self-expression, in the way that she funds her own. But the Court is mistaken to see this as a lesser speech interest; it is a categorically different one, defined by its political objective and context.

The Court in Buckley touched on this point, but failed to recognize its importance, in stressing the reduced corrupting potential of independent expenditures. The Court assumed that these “independent” messages carried less risk of corruption because they are politically risky. The individual speaking only for herself can’t know that her formulation of the message is helpful to the candidate. She may get her point across in the wrong way, or at the wrong time, believing all the while she was arguing the candidate’s case—she is mishandling the politics. The speech is hers, a fully accomplished exercise in self expression, but as advocacy, as an exercise in persuasion, it may fall disastrously short; it is not politically effective speech. The Court’s offer to the speaker is this: speak as you wish, as much as you want, but run the risk that you will have satisfied the urge to speak your mind but at the cost of political effectiveness, creating trouble for the very candidate whose electoral success was your objective in the first place.

Neither speech, nor an expressive associational interest, captures the interest the Buckley Court missed here, which is an interest in political action. That interest is a “hybrid” of speech and action, much as Ronald Krotoszynski has described the nature of the right to petition in its heyday. Ronald Krotoszynski, Reclaiming the Petition Clause at 82 (2012). The contributor is joining with others to fund effective political action; the candidate puts the resources to strategic use in campaigning to win office. It is not correct to say that the contributor’s interest here can be protected through other means, by say, volunteering in the campaign, or engaging in no cost speech on the Internet, and that a limit on giving is only “symbolic” and not more.

It is fair to say that the direct donation of money to the candidate may heighten the concern over bribery-type influence. But, then again, independent expenditures raise for many observers much the same risk. In the age of single-candidate super PACs, the number of such critics is sure to rise. In at least one context, the Court has already recognized that independent expenditures may be indistinguishable from contributions in their capacity for corruption, or appearance of corruption, of one governmental institution— the judiciary. Caperton v. A.T Massey Coal Co., Inc., 556 U.S. 868 (2009). On this ground alone, failing to account for the relative corrupting potential of contributions and expenditures, the distinction drawn by Buckley between the two is seriously flawed. It suffers still more from a failure to properly evaluate the contribution interest.

An adjusted, more expansive reading of that interest would not mean dispensing with legislative safeguards against corruption or its appearance. It would, however, clear away confusions that have clouded the case law without adding much to anticorruption protections. As matters now stand, the interest has been reduced to a modest impediment to aggressive legislation, and it has led the Court into inconsistent and often tortuous adjudications of limits on Congressional power. Buckley established that Congress could limit contributions with wide latitude, up to the point that its activities threatened “severe impact” or “dramatic adverse effect” on the capacity of political actors to assemble the funds needed for effective advocacy. Buckley v. Valeo, 424 U.S. 1, 21 (1976). Writing for the Court in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), Justice Souter stressed the marginally adverse First Amendment impact of contributions regulation: “We this said [in Buckley], in effect, that limiting contributions left communications significantly unimpaired.” Id. at 387. But Justice Souter went notably farther:

We asked [in Buckley], in other words, whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless. Such being the test, the issue in later cases cannot be truncated to a narrow question about the power of the dollar, but must go to the power to mount a campaign with all the dollars likely to be forthcoming.

Id. at 397 (emphasis added). This, then, was what the Buckley free speech analysis allowed: sustaining limits unless they were so “radical” they made the contributions “useless” because the candidate’s voice would be driven “below the level of notice.” Under this analysis, the Court would have no difficulty upholding limits “closely drawn” to the “sufficiently important government interest of preventing corruption or its appearance. See Buckley at 25.

The Court has had to confront what seemed “radical” in a scheme of contribution limits enacted by the State of Vermont and reviewed in Randall v. Sorrell, 548 U.S. 230 (2006). Justice Breyer acknowledged that the Court had given its “general approval of statures that limit campaign contributions,” Randall at 246, but Vermont had gone too far. He then constructed for the Court an intricate test for detecting the “danger” signs that the limitation of contributions might have become too radical. The test was just one of volume—the sufficiency rather than the character of the speech. The question was whether the limitation so severely restricted the resources available for speech that challengers, small donors, parties, or volunteers would be denied minimally reasonable means of participation in the electoral process. Souter’s threshold for concluding that the limits were “radical” had been met; the Court struck the limits down. The Justices did not leave for future cases a reliable guide to their resolution, and they left in place an impoverished understanding of the First Amendment interest of contributions.

McCutcheon is an example of how this narrow vision of the contributor’s interest is expected to carry the day in favor of stringent limits, impeding closer consideration of the balance appropriately struck between government’s anticorruption interest and the First Amendment significance of contributions. See, e.g. Brief for Americans for Campaign Reform as Amicus Curiae, McCutcheon at 2 (“Starting 37 years ago with Buckley v. Valeo [citation omitted], this Court has insisted on the distinction between contributions and expenditures, leaving the contribution limit amount to the judgment of the legislature within a broad range.”) The case for the retention of these aggregate limits rests in part on the view that if the aggregate limits are contribution (and not expenditure) limits, Congress enters the contest with the large advantage of being able to set such limits within a “broad range,” constrained only by the condition that it resist radically low levels. And this, in turn, relates to the comfort the Court takes from Buckley’s view, restated by Souter in Randall, that limits leave communications “significantly unimpaired” and that the contributor’s largely “symbolic” expressive interest can be pursued in alternative ways.

The Buckley Court in 1976 did the best it could. It decided a complex case in a hurry and under pressure, and the contribution/independent expenditure distinction it crafted is a remarkable achievement in those circumstances. On paper it seemed sensible enough, and it was useful in picturing, however incompletely, certain of the interests implicated in the government regulation of campaign finance. Over time, its incompleteness has caught up with it. The question now is only about the jurisprudence that will eventually take its place. It seems important that whatever comes next more richly and accurately draws out the importance difference between speech about politics and speech in politics—between speech as self-expression and speech as political action.

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