Eugene Volokh turns well-justified attention to Justice Stevens’ dissent in the Vermont spending limits case.  For there, Stevens insists that the Founders would have worried not at all about spending limits.  "I am firmly persuaded," Stevens writes, "that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities," and the Justice is confident that these eminent men would not have doubted Congress’ authority to control the problem with spending limits.  Stevens' Dissent at 8. Volokh wonders how Stevens could engage in such "free-form conjecture," unsupported by any reference to the historical record.  Of course, as the rest of Stevens’ dissent would indicate, he was reaching the end of an argument notably devoid of empirical support, historical accuracy or logic.  In calling on the authority of the Founders, on nothing more solid than his subjective certainty that they would have agreed with him, Justice Stevens was tacking a fitting conclusion onto the shakiest of performances.

     Stevens begins with the candid statement that "Buckley’s holding on expenditure limits is wrong."  Id. at 1.  This is his conclusion, and it is, from the perspective of a lucid and straightforward exposition of his position, the high-water mark of his opinion.  His case for this conclusion, assembled from "several factors, taken together," never rises to the level of an argument.  These are the factors, one by one, and how each, ill-chosen in the first place, cannot be "taken together" to support his defense of spending limits.

      The history of spending limits.  Stevens is willing to set Buckley aside, because for "the preceding 65 years, congressional races had been subject to statutory limits on both expenditures and contributions."  Id. at 2  Of course, as the Justice must know, the commands of the Federal Corrupt Practices Act count for nothing here, since they were routinely disregarded:  they were left on the books for want of the will to remove them, but not with the intention of enforcing them.  The Justice’s citation to the Federal Election Campaign Act enactments is similarly ineffective, since the 1971 limits were repealed by 1974, and the 1974 limits were in substantial part invalidated by Buckley.  What the "65 years" show is that limits were enacted when meaningless—or struck down when intended to be meaningful. 

      The Court’s different treatment of contribution and expenditure limits.  Stevens argues that the Court has not closely examined the case against spending limits, having really devoted its energies to contribution limits and their "functional equivalents."  Id. at 2.  He then proceeds to argue that stare decisis is less prohibitive in the case of spending limits:  he suggests that the Court owes more deference to the legislature in the consideration of contribution limits.  This is an extraordinarily odd claim, since the Court has consistently held, from Buckley onward, that expenditure limits, more directly implicating speech concerns, are subject to a more searching constitutional test—in other words, the Court owes less deference to the Congress in the evaluation of spending limits.

     "Money is not speech."   Here Justice Stevens, now grappling directly with Buckley’s judgment on the constitutional stakes in spending limits, repeats his challenge, previously articulated in Shrink Missouri (concurring), that money is not speech.  Stevens relies heavily on the views of Justice White.  He credits White’s views with special significance because, or it seems, Justice White held them passionately, for a long time, and also because he "not incidentally had personal experience as an active participant in a Presidential campaign."  Id. at 7.  Of course, the persistence of an opinion is no warrant for its correctness. 

      And the relevance of White’s experience is far from clear, especially because it was gained in a Presidential campaign, on behalf of John F. Kennedy, whose family’s wealth, unconstrained by spending limits, was critical at least to this primary success—and whose eventual success in the general election was the decisive event in White’s progression to the Supreme Court.  Stevens notes White’s experience in the context of the claim that fundraising diverts officials’ attention from the performance of their official duties, but here, too, as a campaign worker responsible for the Kennedy campaign in the State of Colorado, it is not obvious that White would have had a creditable view on the subject more generally, or that he relied on this experience, or made any special claims about it, in fashioning his position on campaign finance.

      The practical effects of spending limits.  Stevens challenges Buckley’s contention that the freedom to speak at will, but subject to spending limits, is much like the freedom to drive a car "as far and as often as one desires on a single tank of gasoline."  424 U.S. at 19, n.18.  Stevens bravely denies this to be the case:  "there is no limit on the number of speeches or interviews a candidate may give on a limited budget."  Stevens' Dissent at 5.  This is true, of course:  but there is a limitation on the audience for those speeches or interviews, which is highly sensitive to the availability of resources.  Yet the Justice is convinced that it is all a matter of management, of "due care":  so long as the candidate’s "budget is above a certain threshold, a candidate can…ensure that her message reaches all voters."  Id.  Stevens is sure of this, because, without the expenditure of vast sums of money, Kennedy and Lincoln debated their opponents Nixon and Douglas.  (And Stevens assumes that both debates influenced, maybe decisively, the outcome of Presidential campaigns—a misstep in his understanding of the Lincoln/Douglas debates.)

      The good judgment of legislators.  According to Justice Stevens, we can assume that spending limits will not interfere with effective speech, because Members of Congress, who are also "seasoned campaigners," have passed limits with some obvious understanding of the impact.  And "these campaigners" have also appreciated how fundraising can benefit the wealthy and divert officials from attention to their official responsibilities.  This judgment should "command the greatest possible deference from judges."  And this, in turn, is because—Stevens is back to this point, again—limits do not affect the "quality or the content" of speech, only—and "at best," indirectly—the "quantity…of repetitive speech in the marketplace of ideas."  Id. at 8.  Justice Stevens seems undisturbed the possibility that just because they are also campaigners, with a strong stake in the outcome, elected officials who happen also to be incumbents might have other thoughts and designs in the construction of limits.

      It is only at the end of this hodgepodge of claims and arguments that Stevens appeals to the convictions of the Framers.  It is, seemingly, one last stand for his position, held out in the hope that it would succeed where the more formally argued position had failed:  something along the lines of, "Well, in any event, that’s what the Framers would have thought!"  

      In the background, of course, the Justice is moved by still another conviction, no less subjective:  that modern campaign speech is not worth the constitutional defense provided for it over the years.  Candidates traffic in "ceaseless sound-bites of trivial information" id. at 5; we are suffering, as the Founders did not, through "the era of televised sound-bites" id. at 8; and we should not worry too much about the quantity of speech, especially of the "repetitive" nature, when only quality should count, id.  

      When he was done, Justice Stevens had probably provided, but not as he intended, the powerful opinion he was striving for—to be cited, for years to come, as a prime example of carelessness, close in nature to fecklessness, in treating the First Amendment issues raised by campaign finance regulation.

Bob Bauer