Most non-lawyers only vaguely, at best, know about the U.S. Supreme Court’s decision in Buckley vs. Valeo.  However, Buckley was the 1970s equivalent of Citizens United.  And it is a major factor in the modern campaign finance system and the candidates that are running for President.

In the early 1970s, Congress passed two laws related to campaign finance — the Federal Election Campaign Act of 1971 and a set of amendments in 1974.  Some of the provisions of these two statutes are familiar to people who follow politics because the Supreme Court upheld them.  These laws established the limits on contributions to campaigns — both by individuals and by political action committees and required campaigns to report donations.  The law also established the system of public funding of presidential campaigns which is still nominally on the books.  (Simply put, the law on public financing and the resources for public financing have not kept up with the ability of candidates to raise funds through various means including the internet.  Candidates can easily raise a level of funding that vastly exceeds the expenditure limits that are associated with accepting public finance.  And once one candidate opts to forego public financing, the rest of the candidates have to exceed those limits too.)

What most people do not remember is that these laws placed limits on expenditure in federal elections and restricted the ability of candidates to self-fund.  While the Supreme Court did not directly state that spending is speech, it did note that spending by a political campaigns is connected to its ability to speak and communicate the candidate’s message.  As a result, the Supreme Court found that mandatory limits on campaign expenditures (as opposed to the voluntary limits that went with accepting public funding) and any limits on independent expenditures were unconstitutional.  While this part of the ruling ultimately led to PACs and Super-PACs having the ability to run their own ads supporting and attacking candidates, that power mostly impacts things at the end of the process. Continue Reading...