Some reform advocates, frustrated by the Supreme Court’s protection of speech in campaigns are calling for “overturning” Buckley v. Valeo. This attack can take a subtle form, insisting that Buckley requires “updating” to reflect modern campaign practices unknown in the 1970s when the opinion was written. Unfortunately for them, the notion that the Court was naïve about politics does not withstand historical research.
At stake in this debate is the constitutionality of recent campaign-finance reforms. In Buckley
, regulations of campaign speech were limited to messages containing express advocacy of the election or defeat of a clearly identified candidate for federal office. Reformers want more. The Bipartisan Campaign Reform Act (“BCRA”) contains prohibitions on “electioneering” with the period before an election that reach speech protected in Buckley
. Critics argue that Buckley
justices could not have anticipated the use of issue advocacy that might invoke a candidate or campaign issues yet not contain express advocacy. A contemporary court, claims reformers, could move away from the protective “express advocacy” standard to allow regulation or even prohibition of issue advertising.
These arguments include assertions of fact about what the Court knew, or could be expected to have known, about the interplay of campaigns and regulation. Such statements are made hypothetically, but that should not be the case. Both Justices Thurgood Marshall and Lewis Powell participated in Buckley and their papers can be reviewed by researchers. There is no guarantee that these collections of drafts, memos, notes, and other miscellany contain all the material from the time. Yet, the documents in these collections may be the only source that can shed light on the justices’ thinking free from any taint of bias or post hoc rationalization. One should never use such material to make a legal argument — the Court’s opinion is the law in Buckley. But when lawyers make statements of fact about what the Court “understood” or “knew,” those assertions should withstand verification.
The Court invested considerable time to this case before argument. Justice Powell’s papers contain a lengthy preliminary bench memorandum outlining the key issues of the case, dated two months before oral argument. As it discussed “express advocacy,” that memo observed:
The only statutory construction that would avoid this ambiguity would limit the reach of the section to expenditures for material that expressly advocates the election or defeat of a candidate. Since this criterion could be avoided with relative ease, it is doubtful that the provision would effectively close the loophole foreseen by Congress.
Powell’s annotation in the margin states “Difficult[y] in drawing line bet[ween] supporting a candidate & discussing an issue is serious, but limitation on pure speech is more serious.” In the notes Powell made before oral argument , he continued to reflect on how “candidate” and “issues” messages blend:
There are perennial issues in this country, not peculiar to a particular campaign; e.g., continued federal deficits, women’s rights amendment, government’s role in public and social welfare, expanded medicare, national defense, isolationism, foreign aid, etc. . . . Does a candidate who wishes to express his views on a perennial issue during a campaign do so at his peril?
Knowing that justices and their clerks talk among themselves, the reasonable conclusion is that other justices were also weighing these questions.
Parts of Buckley were assigned to various justices for drafting. Justice Potter Stewart drafted the portion of Buckley addressing the independent expenditure limit and express advocacy. (Buckley was not, as rumor has long maintained, authored by Justice Brennan.) Justice Stewart’s first draft resembles the final text of this part of Buckley in most important respects. It contains the same express-advocacy standard as the final opinion, but in his draft the definition stood alone, without footnotes. In the final opinion, two footnotes were added. Footnote 51 in Buckley provides examples of “clearly identified” candidates and footnote 52 provides examples of “express advocacy.” Footnote 52 has been derided by some reformers as the “magic words” footnote since it lists the kinds of messages that would be express advocacy — “elect,” “defeat,” “vote for,” and the like.
Evidently, during review justices considered whether the opinion provided adequate guidance, and the notes were incorporated to better explain the rule. The available documents do not show which justice in particular requested these additions, but they provide a hint. Justice Brennan noted in a conference memorandum: “Potter’s proposed construction does not wholly cure the vice of vagueness in my view; there remain a myriad of examples of its uncertain application even as so construed.” It may be that the explanatory footnotes were incorporated to address his comments.
The government had argued that the independent expenditure limit “relative to” a candidate was required as a loophole-closing provision. Justice Stewart’s draft and the final opinion responded that, once narrowed to apply to express advocacy, the law would not be effective. It would be easy for persons and groups to avoid express terms of advocacy, and be “free to spend as much as they want to promote the candidate and his views.” In short, Justice Stewart and his colleagues understood from the start that anyone could construct what we now call “issue ads” and avoid the independent-expenditure limits in the law. None of the available documents demonstrate any ambiguity or prevarication on this point.
The final version (but not Justice Stewart’s draft) of Buckley states, “independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.” Read in context, this caveat was applied only to the discussion about whether speakers could coordinate with candidates, and turn independent expenditures into in-kind contributions that avoided the federal limits. The changes made to the first draft in this section indicate that Justices were struggling to understand at what point “coordination” transforms free speech into a regulated contribution. This question remains a fiercely debated issue today, and to the extent the opinion could be read to invite additional proof from future litigants, it is only on this issue. The available documents indicate that the express-advocacy construction was a separate necessarily antecedent holding, however justices might have viewed coordination.
The Buckley Court, faced with numerous complex issues, nevertheless thought through express advocacy and the potential for “issue ads.” The justices knew that the express-advocacy standard would permit individuals and groups to discuss issues relevant to campaigns without regulation, but remained committed to providing a clear and narrow standard to address constitutional concerns. It was not, as critics seem to suggest, a hasty, naive, or ignorant Court that set forth this standard, but one aware of reality, concerned about liberty, and protective of speech in campaigns.
— Allison R. Hayward is an attorney practicing in California and in Washington, D.C.