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1998 Utah L. Rev. 311 (1998)
Against Campaign Finance Reform

handle is hein.journals/utahlr1998 and id is 321 raw text is: Against Campaign Finance Reforn Kathleen M. Sullivan- I. INTRODUCTION Buckley v. Valeo,' the two-decades-old decision that gave limited First Amendment protection to the outlay of political money, has become the great white whale of constitutional law: the more elusive its demise becomes, the greater the intellectual exertion expended in its pursuit To recap the highlights of Buckley very briefly: Two decades ago in the wake of the Watergate scandal, Congress sought to impose a comprehensive scheme of limitations on the amounts of money that could be given and spent in political campaigns. The Supreme Court found in Buckley that Congress had gotten things half right, and upheld the contribution but not the expenditure limits against First Amendment challenge.2 The Court reasoned that contributions implicated only limited speech interests since they merely facilitated the speech of others, and that the government interest in preventing corruption or the appearance of corruption justified limits aimed at preventing any single donor from gaining disproportionate influence relative to others Similar interests justified mandatory public disclosure of political contributions above minimal amounts.4 On the other hand, Buckley reasoned that expenditures of money by the candidate or by others outside of the candidate's formal campaign amount more directly to speech and are less likely to exert a quid pro quo.6 Thus, expenditure limits could not be justified by the anticorruption rationale, nor by the alternative rationale that they equalized relative speaking power, for the Court regarded any attempt to foster balance in the content of political speech as an anathema to the First Amendment.7 Expenditures could be limited, however, held the Court, as a condition of receipt of public funding for one's campaign.' The result of this split decision is that government may restrict the supply of political money flowing to a candidate but not the demand. The aftermath is by now familiar: Political candidates need a lot of money to compete in American elections, given that our large districts and weak parties obligate them to communicate directly *1998, Kathleen M. Sullivan. All rights reserved. Stanley Morrison Professor of Law, Stanford Law School. This paper was originally delivered as the Leary Lecture at the University of Utah College of Law on November 20, 1997. '424 U.S. 1 (1976) (per curiam). 2See id. at 12-59. 3See id. at 25-27 (discussing danger that unlimited contributions to candidates would be made in expectation of quid pro quo). 'See id. at 60-84. 5See id. at 51-54. 'See id at 45-48. 'See i at 49 (holding that such justifications are wholly foreign to the First Amendment). 'See id. at 57 n.65. 311

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