Buckley v. Valeo Revisited
Free Speech & Election Law Practice Group Newsletter - Volume 3, Issue 3, Winter 2000
February 1, 2000Joel Gora
Remarks of Professor Joel M. Gora at the Federalist Society's September 1999 Conference
Editor's Note: The following is a thought provoking discussion by Professor Joel Gora about the First Amendment and campaign finance focusing on the recent Supreme Court case of Shrink Missouri Government PAC v. Nixon. No. 98-963. Professor Gora's remarks were delivered prior to the Supreme Court's January 25, 2000 decision in Shrink. The Court did not agree with his views and held that Missouri's $1 ,000 contribution limit for statewide candidates did not violate the First Amendment because it was justified by the state's desire to curb corruption or the appearance thereof. The majority opinion also rejected the argument that contribution limits could be unconstitutional if they were not adjusted for inflation and reaffirmed Buckley's illogical distinction between contributions and expenditures. The decision did at least leave open the possibility that contribution limits could be invalidated if someone was able to establish that a limit prevented them from "amassing the resources sufficient for effective advocacy."
It is a pleasure to be on the same program today with Senator Eugene McCarthy, a true political hero, whom I was proud to help represent in Buckley v. Valeo. As reported just this week in The Wall Street Journal, Senator McCarthy's landmark and principled 1968 Presidential campaign raised more money, adjusted for inflation, than George W. Bush's campaign this year, and did so relying on a small handful of extremely wealthy individuals who shared the ideals and values of Senator McCarthy and his supporters. Only in the perverted post-Watergate world of campaign finance "reform" would the word "corruption" or "the appearance of corruption" possibly be used to describe that noble endeavor.
It is likewise an honor to be on the same program with Senator Mitch McConnell, another political hero of mine for his unyielding defense of the First Amendment in the face of extraordinarily relentless and strident criticism. And he has been a stalwart friend ofthe First Amendment not just on the issues that bring us here today, but on other free speech issues where he has placed principle above partisanship.
What Senator McCarthy then and Senator McConnell now have each helped me to understand is that campaign finance controls involve a systematic violation of the core principles of the First Amendment. I actually started learning that lesson more than 25 years ago as a young ACLU attorney, assigned to work on the very first case brought under the brand spanking new Federal Election Campaign Act of 1972. Ever since then, the ACLU and I have been deeply involved in the debate over government regulation of campaign speech. Those very first cases were like a Kafkaesque teaching machine: the more we learned about the incredible sweep of the campaign finance laws, the more we realized the peril they posed to accepted First Amendment values. Our first case, involving the National Committee for Impeachment, was a classic case of the government going after protected issue advocacy. The government, using the FECA for the first time, tried to shut down an ad hoc anti-Nixon group for sponsoring a two-page advertisement in The New York Times urging the President's impeachment and praising--and even identifying--the half dozen members of Congress who had introduced an impeachment resolution. The ad contained not a word of partisan election advocacy, but the govemment reasoned that since 1972 was an election year, and Nixon and the Members of Congress were going to be federal candidates, then the ad might be "for the purpose of influencing the outcome" of those elections, thus triggering various provisions of the new Federal law. Well, the courts rejected the government's claim, and, in the first case of protected issue advocacy, held that government could not use the new campaign finance laws to control critical issue advocacy on important public issues, despite the fact that the subject of that discussion was a candidate for federal office. That was my first wake-up call to the ferocious First Amendment problems that campaign finance regulations can create.
But the worst was yet to come. The Watergate-driven 1974 campaign finance laws made the impeachment ad controls seem like child's play. The new reforms imposed unprecedented new restrictions on candidates, political committees, independent groups and individuals as well as issue advocacy organizations. All of these rules were enforced by a new commission beholden to the political establishment. That was the scheme that gave rise to the landmark litigation in Buckley v. Valeo. The New York Civil Liberties Union was one of the plaintiffs that successfully challenged a provision of the new law that regulated issue ads critical of incumbent politicians. Deja Vu. And it was my privilege on behalf of the ACLU to help represent all the challengers in Buckley, together with my friends Ralph Winter (now Chief Judge of the Second Circuit), John Bolton, and others.
In those years we leamed that legislative limits on political funding, imposed by incumbent politicians, are fundamentally at odds with everything that we understood about the First Amendment. Such restraints are unconstitutional, unworkable and unwise. I think that all that has happened in the 25 years since then has shown the wisdom of this pessimistic view. The reformers, however, insist that restraints and limits are the only way to safeguard democracy. In their briefs in the pending Shrink PAC case they urge the Court to reaffirm the wisdom and validity of limits on campaign funding, while in their legislative proposals they would cast the net of controls over political activities that have never before been subject to government regulation.
Once again the Court is at another constitutional crossroads. The Shrink Missouri Government PAC case which the Court will soon decide will test which view of campaign finance regulation will prevaiL Shrink PAC is a case about the constitutional validity of a $1075 limit for contributions by a person or a PAC to a political candidate. Interestingly, under the challenged regulatory scheme parties can give 10 times that amount to a candidate, and parties can receive unlimited amounts of soft money from corporations and individuals. So, in Missouri the parties take good care of themselves, and the political newcomers challenging the political establishment, like the plaintiffs in the Missouri case, are left out in the political cold, without any effective ability to raise adequate funds to take on the political establishment.
The Eighth Circuit held that Missouri's contribution limits failed to survive the strict scrutiny required by Buckley because Missouri had failed to meet its burden of proving that the limits were necessary to avoid corruption or the appearance of corruption. The state proffered no serious evidence of any real harm or corruption that arose when Missouri, like many other States, had no limits whatsoever on the source or amount of campaign contributions. '''The State therefore must prove that Missouri has a real problem with corruption or a perception thereof as a direct result of large campaign contributions." Since the State had failed to do so, the law was declared unconstitutional. The Eighth Circuit enjoined enforcement of the contribution ceilings. As a result, most of the 1998 elections in Missouri were conducted without contribution limits. So far as anyone knows, the earth didn't move, the Mississippi River didn't flow backwards and corruption or the appearance thereof did not flood the land.
The particular question now before the Court is whether Missouri's contribution limits can be upheld under Buckley. In a moment, I will say why I believe the answer to that question is no. More fundamentally, however, the Missouri case offers the Court an opportunity to reexamine its approach to contribution limits in the light of a quarter century of experience not available to the Court in 1976. Buckley proceeded on the assumption that contribution limits could provide a meaningful check on the allegedly corrupting influence of money in the electoral system and level the playing field among candidates. Twenty-three years later, there is more money in politics than ever before, and, according to many reformers, more corruption. The First Amendment bargain that Buckley struck in upholding contribution limits simply has not paid off. It is time to consider a different approach, one that is both more consistent with First Amendment values and has a greater chance of achieving its stated goals.
On the narrow question, I think Missouri's particular $1,000 contribution limits run afoul of three well-settled First Amendment principles, two of which were derived from Buckley itself.
The first principle is that political contributions, as well as political expenditures, are core constitutional activities affecting freedom of expression and freedom of association. Second, contribution limits, as well as expenditure limits, are therefore subject to "the closest scrutiny." Third, whenever the government attempts to regulate speech, it "must demonstrate that the harms are real ... and that the regulation will in fact alleviate these harms in a direct and material way." Missouri has utterly failed to make that showing in this case. Instead, the state's defense of its limits begins and ends with the talismanic reference to corruption and the appearance of corruption. If that is all that Buckley requires, the opinion could have been much shorter than it was, including its section on contribution limits. The Supreme Court, however, has never permitted First Amendment rights to be overridden so casually. On the barren record in the Missouri case, the State wins only if contribution limits are not subject to any First Amendment scrutiny at all, but are virtually per se valid. Although some of Missouri's amici take essentially that flawed position, and would allow government as much leeway to regulate words as widgets, that is clearly not the holding of Buckley. Corruption or the reasonable appearance thereof must be shown and none was. That being so, there is no justification for imposing severe burdens on the funding of speech in political campaigns.
And a $1,000 contribution limit, in 1999, can impose such burdens on the ability of candidates to get their messages out. That is why the Court's acceptance of a similar limit in 1976 is not controlling. It does not take sophisticated economic analysis to know that $1,000 today is not worth what it was in 1976. Translated into Buckley currency, Missouri's contribution limit for statewide elections is approximately $350. This difference has significant real world consequences. Under Missouri's limits, it now takes three contributors to provide the political resources to a candidate that a single contributor could provide in 1976. In addition, those resources do not go as far as they did 23 years ago. In Buckley, the Court noted that a full-page advertisement in a major metropolitan daily cost slightly less than $7,000. The same advertisement today would cost almost $32,000. In 1976, a candidate needed seven contributors to fund a full page ad. Today, the candidate needs four times that number. Moreover, this difference accurately reflects the increased time, energy and resources that now consume political candidates in the task of raising money. Just ask New Jersey Governor Christie Whitman. Or ask former Presidential candidate, Lamar Alexander.
Just as $1,000 buys less speech than it did in 1976, it also buys less influence, let alone corruption or the reasonable appearance of corruption. It is difficult to conceive that the Buckley Court would have characterized a $350 contribution for statewide office as "large" or "corrupting." For this reason alone, the federal $1,000 contribution limit also merits reexamination even under the existing constitutional framework established by Buckley. Simply adjusting FECA for inflation since 1976 would approximately triple the individual and PAC contribution limits. What the unchanged $1,000 limit does do is undermine the ability of candidates to raise the funds that they--not the government--think they need for effective advocacy of their candidacy. I submit that those who insist on imposing severely low contribution limits are really stalking bigger game, namely, a backdoor way of effectively and illicitly achieving expenditure limits. But severely low contribution limits only work to penalize those very candidates who are not well-heeled or well-connected, i.e., the challengers in the Missouri case. The candidates that suffer the most from a regime of severely low contribution limits are those who don't have a big Rolex or a bigger Rolodex.
In short, the Supreme Court should strike down Missouri's contribution limits under Buckley because those limits: (a) are so low that they burden the ability of challengers, newcomers, insurgents and similarly situated candidates, to get their message to the voters; (b) were imposed without any evidence that such burdens were needed to alleviate a specific, documented harm; and (c) were not carefully limited to the sort of "large" contributions that might arguably pose a problem of actual or apparent corruption.
The Missouri case raises a larger question, namely, whether contribution limits can ever achieve the goals claimed for them? Experience under Buckley's limits would suggest no. Political spending has not decreased because of contribution limits, it has merely been diverted into other channels - primarily PACs, soft money, and issue advocacy--most of which are beyond regulatory control under the Court's First Amendment precedents--and properly so. As a result, the rationale that Buckley relied on to uphold contribution limits in 1976 is no longer persuasive twenty-three years later. Instead, we have been left with a regulatory scheme that has not leveled the playing field between challengers and incumbents, has not halted the spiraling cost of political campaigns, has not restrained the political spending of wealthy contributors, and has not reduced the access of wealthy contributors to candidates and elected officials--even assuming those goals are all valid. What the current system has accomplished, perversely, is to force all candidates to spend more time fundraising than ever before, and to diminish the ability of insurgent candidates to bring their messages to the electorate. Such a misguided scheme might be merely regrettable if we were not dealing with First Amendment rights. Because we are, such an imprecise fit between means and ends is clearly unconstitutional. Moreover, because what are often mischaracterized as "loopholes" in the campaign finance law are more properly understood as constitutionally compelled safe harbors for core political speech, the ability of contribution limits to accomplish their asserted goal is only likely to diminish with the passage of time. A crazy-quilt regime that lets some speak and restrains others, while accomplishing none of its stated purposes, is at odds with the precision of regulation thatt he First Amendment requires.
The flawed efforts to regulate campaign funding have run up against two ironclad laws of nature: the law of unintended consequences and the rule of regulatory traps. The former holds that efforts to solve one problem will inevitably spawn others like the ones you were trying to solve. The latter states that government will seek to cure a problem caused by regulation by introducing still more comprehensive regulation. So, for example, the widespread use of soft money is the unintended consequence caused by severe limitations on raising hard money and that in turn has prompted insistent calls for even more regulation to solve the problem caused by too much regulation in the first place.
Look at where we are today. Do we have a level playing field with expanded political opportunity and lots of new political voices? Au contraire. Incumbents are doing better than ever. Approximately 40 challengers won election to Congress in 1974 when the FECA amendments were first adopted. Since then, the incumbency rate has skyrocketed to 95% and beyond. The fundraising ability of incumbents continues to far outpace the fundraising ability of challengers. And the same is true of course of personally wealthy candidates who remain free to spend as much of their own money as they choose. By contrast, candidates who have neither personal wealth nor the advantage of incumbency have a much more difficult time raising the funds needed to promote their candidacy and have a chance of beating incumbents. Low contribution limits just exacerbate the problem. While it may have been easy for George W. Bush to raise lots of money in little time; it sure wasn't for Lamar Alexander.
Of course, there are many well-known instances where wealthy candidates lose, where Big Spenders are Big Losers. Last year, in California, two multimillionaires slugged it out and lost to a less wealthy candidate with a priceless slogan: "Experience Money Can't Buy." But the winner, Governor Gray Davis, was himself a longtime state-wide incumbent politician and California's onerous campaign contribution limits had been stayed by a court that later declared them unconstitutional.
We're about to have another test of that slogan in New Jersey where a really rich guy, named Jon Corzine, who used to be the chairman of Goldman, Sachs, is seeking the Democratic nomination for U.S. Senate, promising to spend "whatever it takes" to win the election in order to implement his liberal ideas. Not surprisingly, the one liberal idea he's a little cool to is campaign finance reform. That must make former Governor Jim Florio really feel good as he seeks to mount a campaign against all that personal wealth. And we know what the prospect has now done to Governor Christie Whitman. In that scenario, what possible purpose is served by telling Florio and Whitman that they must raise funds under the severe $1,000 contribution limits in federal law and by preventing them from receiving contributions--fully and promptly disclosed to the public--from those who support their cause? And what possible harm would it be to raise or eliminate such limits and let Florio or Whitman raise funds for their campaigns--fully and promptly disclosed to the public--in whatever amounts their supporters can muster? And that is even more true for less well known candidates, particularly those facing entrenched and heavily-financed incumbents. Why prevent that underdog candidate from receiving contributions-fully and promptly disclosed to the public--from those who support his cause? What kind of a level playing field is that?
And if you don't believe me, listen to an experienced practical politician. The reformers' briefs in the Missouri case insist that the Court should defer to the wisdom of experienced politicians in judging campaign finance rules. Well one experienced politician, former Governor Lamar Alexander, recently complained in an article in The Wall Street Journal that the $1,000 limit on contributions to his campaign essentially made it impossible for him to raise the kind of funds necessary to be a viable Presidential candidate.
Contribution limits spawned a seemingly infinite variety of new campaign finance techniques, which exacerbate the problems that the law is intended to address while circumventing the controls that the law places on contributions to political candidates. Indeed, according to reformers, corruption is worse than ever. First, there was the widely noted and frequently bemoaned "rise of PACs" to fill the fund-raising gap. Although PAC contributions to candidates are controlled by law, the fact that PACs can contribute five times what individuals can (under federal law, not Missouri law), and are able more easily to tap large pools of contributors, has encouraged candidate reliance on them. Independent partisan activity by PACs, which cannot be subject to legislative limits, also became more prominent after Buckley. The same is true for organized labor, which spent an estimated $35 million in 1996 in an effort to return the House of Representatives to Democratic control. Although PAC funding has leveled off in the last decade, many perceive PACs, wrongly I think, as the embodiment of evil "special interests."
Second, there has been the widely criticized "soft money" phenomenon that was so successfully used in the last presidential election. Soft money, of course, is the way that corporations and wealthy individuals who don't own newspapers or television stations, or control fancy foundations, use their resources to help communicate messages they support. When the corporate owners of The Washington Post or The New York Times use their resources to promulgate their messages, that's called the embodiment and glory of the First Amendment; when the corporate owners of The Widget Company use or contribute their resources to promulgate or subsidize their messages, that's campaign finance corruption.
By definition, soft money cannot be used to support an identifiable candidate, either through direct contributions or coordinated expenditures. Because it operates outside the law's contribution limits, soft money can and has been raised by both parties in unlimited amounts and from otherwise prohibited sources (such as corporations). The constitutional legitimacy of such fundraising and spending by political parties is firmly anchored in Buckley's core teaching that speech is wholly beyond the permissible scope of statutory control if it does not expressly advocate the election of political candidates, and in Colorado Republican there was a consensus that speech by political parties in support of their candidates cannot be presumed to be speech attributable to those candidates.
Third, there is the increased prominence of issue advocacy. Individuals who are barred from giving substantial support to the candidates of their choice by the FECA's contribution limits remain constitutionally entitled to provide unlimited support to advocacy groups in the hope of creating a climate of opinion favorable to their preferred candidates. In our Buckley brief, we predicted exactly that consequence if candidate contribution limits were upheld. "Limits on individual contributions will, moreover, induce potential contributors to donate funds instead to 'issue' groups. That, in tum, may create additional pressure for Congress and the courts to see that 'issue' organizations also are regulated in the way that political campaigns are--a clearly unconstitutional approach." And so it goes. Indeed.
Issue advocacy groups became a focal point for debate during the 1996 elections because of claims that much of their political speech was linked directly to criticism of incumbent candidates in terms that were tantamount to--but legally not within--the meaning of "express advocacy." This, in turn, has fueled persistent calls for new statutory controls. Proposals to limit issue advocacy, however, are constitutionally infirm for reasons the Court made clear in Buckley: "So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views." In practical terms, therefore, issue advocacy is unconstrained by statutory limits despite its sometimes partisan impact; on the other hand, funding that helps a candidate respond directly to such issue speech is subject to the strictest of controls. What is the sense in that?
Finally, contribution limits have had at least one other unintended consequence: magnifying the influence of the media and their wealthy owners. Favorable news media coverage and editorial support can make or break a candidate. It has been observed that more voters carry a newspaper's election day recommendations into the polling booth with them than carry an issue group's scorecard or a candidate's flyer or a party's slate card. Yet, the individual and corporate owners of major media outlets are wholly immune from any campaign finance controls on the use of their resources to affect electoral outcomes, while candidates who wish to reply to a media attack are limited in their ability to seek fmancial contributions from their supporters. The ACLU, of course, has repeatedly defended the unfettered right of the press to attack political candidates, but there is no warrant for affording less protection to those who invoke the First Amendment to help underwrite a candidate's response to the media. The rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations. After all, on its face, the First Amendment protects both freedom of speech and freedom of the press equally; how can our campaign finance laws justifiably treat them differently.
The press engages in issue advocacy every day and in express advocacy on election day. Why should they be privileged over other speakers? Why should the Rupert Murdochs, the Katherine Grahams, the corporate owners of The New York Times get to use their resources to advocate their politics, without restraint, while other individuals and groups are subject to restraints for doing and saying exactly the same thing. I think all speakers--individual or groups, press or others--should have the same vigorous rights to use their resources to speak about politics and government. I thought that's what the First Amendment said also.
Finally, it is the height of irony, if not hypocrisy, that so many of the institutional press clamor for campaign finance restraints that would deny to others the rights of advocacy that the press exercises every single day. How outrageous. Interestingly, the more controls that are placed on other speakers--candidates, PACs, parties, issue groups--the more influence the press will have in shaping our public debate. If you doubt that the press plays a vital role in shaping that debate, just think about how different the debate on campaign finance would be if The New York Times and The Washington Post had the same editorial and news coverage position on campaign finance as The Wall Street Journal or The Chicago Tribune: No limits and full disclosure. Then the media darling on campaign finance issues would be named McConnell, not McCain.
How then can we deal with a campaign finance world which seems to turn the First Amendment on its head and which has once again become "more loophole than law." And, where free speech is concerned, "more loophole than law" is a constitutional flaw. For it means that some get to speak, but others who are similarly situated do not. Justice Anthony Kennedy called such a regime "the rawest form of censorship."
In terms of the Missouri case, how can we continue to treat political contributions as a constitutional stepchild subject to regulations that would not be tolerated in any other First Amendment sphere involving political speech? And, how can we continue to justify a legislative scheme that is so clearly at odds with the normal First Amendment proscription against content-based regulation? The answer to the first question is we cannot. The answer to the second question is we should not.
The first thing the Court can do, as we urge in our brief, is to revisit the distinction between contributions and expenditures that it made in Buckley. We had argued in Buckley that "contributions and expenditures are two sides of the same First Amendment coin." Contributions fuel the ideas that expenditures communicate. People make contributions to candidates and causes whose ideas they believe in and those candidates and causes use the funds to circulate those ideas. As such, contributions embody the gas that makes the engine of democracy run. Cut off the gas and the engine dies. Of course, the Court struck down limits on expenditures, but upheld limits on contributions to candidates and political committees. That was a flawed distinction, doctrinally and, as time proved, practically. It is time to abandon it and to recognize that contributions produce expenditures that enable freedom of speech and also embody freedom of association.
Because of the disparate treatment of contributions and expenditures, we have a system of freedom of expression in the campaign finance area whose inconsistencies and incongruities undermine the goals of reduced "corruption" and expanded political participation that have been claimed as its principal justifications. In First Amendment terms, we have created a political speech code under which the choice between freedom or restraint turns on the identity of the speaker, the content of the speech and, if pending proposals like Shays/Meehan or McCain/Feingold, are enacted into law, the timing and the medium of the speech as well. Funding given directly to candidates, coordinated with candidates, or expressly advocating the election or defeat of candidates, is subject to the elaborate and restrictive limits of the FECA and comparable state statutory schemes. The funding of all other political speech that may affect the climate of opinion in which electoral outcomes are determined is left wholly unrestrained in accordance with First Amendment imperatives (as well as democratic principles). Thus, the "Harry and Louise" ads in 1994, which may have helped elect the first Republican Congress in two generations, are beyond statutory control, and properly so, as were the 1995 DNC Medicare ads, which helped insure the re-election of President Clinton (although those DNC ads might be illegal under some pending proposals). The result has been a political line-drawing exercise that can best be described as arbitrary and irrational.
This regime of "raw censorship," which deviates so dramatically from normal First Amendment principles, plainly fails to embody the "precision of regulation" that those principles demand. Instead, in a sweepingly overinclusive way, the system enforces a prophylactic rule against "large" contributions, regardless of their potential for corruption, and despite the existence of more targeted laws requiring disclosure and prohibiting bribery or conflicts of interest. Furthermore, the current system allows the restraint of core political speech on the basis of vague concepts like "corruption" or, worse, "the appearance of corruption."
These consequences point up the essence of the intractable campaign finance dilemma and the inherent instability of campaign fmance controls. The more one regulates: the more one risks offending the First Amendment, as illustrated by the flawed FECA provisions struck down in Buckley. The less one regulates, the less effective the remaining regulations will be and the harder it therefore becomes to justify half-hearted measures characteristic of the post-Buckley regime. Buckley's well-intentioned effort to strike the balance by splitting the difference between contributions and expenditures, and between explicitly electoral speech and all other messages that may potentially affect political outcomes by influencing the climate of opinion, simply has not achieved the equilibrium desired or withstood the test of time.
As in Buckley, so too in the Missouri case, the Court is once again at a constitutional crossroad. There are rational solutions to the campaign finance dilemma, but they do not lie in the direction of more limits on speech and the financing that makes speech audible, more loopholes and more public cynicism. The Framers, not surprisingly, did not leave us without solutions to deal with the campaign finance dilemma. They gave us, of course, what Senator McCarthy has called the best campaign finance reform law ever enacted, the First Amendment. We should look for our solutions in the direction that the First Amendment, properly regarded, has always led--the path, as Justice Brandeis put it, of "more speech, not enforced silence."
A program of meaningful campaign finance reform that is consistent with the First Amendment would include three essential elements. First, we can and should require instantaneous disclosure of large contributions to political candidates and campaigns, which will facilitate timely reporting and analysis by govemment agencies, news media and private campaign watchdog groups. The value of disclosure is too often underestimated as an informational tool enabling the public to exercise its electoral power intelligently, and also as an antidote to corruption or undue influence. Narrowly drawn disclosure, in the words of Justices O'Connor and Breyer, can be an "essential cornerstone of effective campaign finance reform." That is even more true today than it was a generation ago because technological advances now permit ahnost instantaneous filing and public dissemination.
Second, we can and should implement a serious system of public financing. As the Court commented in Buckley, public financing can be a way "not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people" and thus to further, not abridge, First Amendment values. The ACLU shares that view, and has long supported adequate and equitable public financing of qualified candidates as the most effective way to bring about real campaign finance reform. By eliminating the need for candidates to depend entirely on private contributions, public financing represents a far more direct response to whatever problems may exist with corruption or the appearance of corruption. And, by providing critical resources to candidates who lack personal wealth, public financing is far more likely than contribution limits to expand the electoral marketplace by introducing new faces and new ideas.
Contribution limits thus represent the worst of both worlds: they are simultaneously less effective and more restrictive than the public financing alternative. At least until public financing has been tried and failed, the single minded reliance on contribution limits cannot be reconciled with core First Amendment principles. The Court should have recognized that in Buckley and should correct the failure to do so now, in the Missouri case.
Third, we can and should regard political accountability as the appropriate constitutional check on "excessive" fundraising and spending. Let candidates decide whether to make an issue out of an opponent's high budget campaign. Similarly, let the voters decide whether particular candidates are relying too heavily on large contributions. In short, let us show the courage of the Framers and put our faith in the People, not the govemment, to distinguish between public interest and special interest and choose their elected officials accordingly.
*Joel M. Gora is a Professor of Law at Brooklyn Law School.