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-
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.


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