Buckley v. Valeo

On this week’s episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) talk about campaign finance in Buckley v. Valeo. The decision established that, when it comes to elections, money is speech based on the First Amendment.

A podcast where we dissect and analyze the Supreme Court decicions that have born down on Americans, like unfilitered ultraviolet light on a pale, nude body

00:01 [Archival]: We'll hear arguments today in Buckley against Valeo and others.


00:12 Leon: Hey, everyone. This is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Buckley v. Valeo, a case that is the basis of modern campaign finance law. It's also the ruling that cemented the notion that money is speech, effectively giving those with more money a louder voice in politics.

00:33 [Archival]: Another decision yesterday from the Supreme Court essentially saying, "Free speech means you can spend almost whatever you want on campaigns."

00:39 [Archival]: I think that's a terrible decision, spending money is not speech.

00:45 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.


00:54 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court decisions that have borne down on Americans like unfiltered ultra-violet light on a pale nude body. [laughter] I am Peter, Twitter's The_Law_Boy, I'm here with Michael.

01:13 Michael: Hey, everybody.

01:16 Peter: And Rhiannon.

01:16 Rhiannon: Hey, everybody.

01:16 Peter: And today we are talking about Buckley v. Valeo. It's Valeo, right?

01:20 Rhiannon: Valeo.

01:22 Michael: I learned it Valeo in law school.

01:25 Rhiannon: No, it's Valeo, I'm just crazy.

01:25 Michael: You got it.

01:26 Peter: That's the kind of podcast we're on, "Do I know for sure?" No. "Did I look it up?" Also no.

01:31 Michael: You gotta forgive Rhiannon, her brain is currently on fire.

01:33 Rhiannon: That's right. We're operating above 100 degrees right now.

01:36 Peter: Not very long ago, we told you guys that if one of us got coronavirus and died, we would keep doing the podcast, and that was our promise to you. No one has died yet, but Rhiannon does appear, based on what we understand about COVID-19, to have it, and as the possible death and replacement of Rhiannon gets closer, we're gonna take a more somber tone, but we will keep going with the podcast. I can't back off that now, it's a promise I made on a podcast. That's legally binding.

02:09 Rhiannon: Not yet, bitches. The white devil has not gotten me yet, and I'm here to stay.

02:14 Peter: Yeah, the asterisk is that Rhiannon can never die.

02:16 Rhiannon: Correct, that's right.


02:21 Peter: In our second episode, we covered Citizens United and there, we focused on the Court granting certain speech rights to corporations. This case, Buckley v. Valeo, is the most important precursor to Citizens United and is famous for crystallizing the idea that the expenditure of money is speech, more specifically that political spending, is it self-protectable speech under the First Amendment? This principle runs into a very obvious issue, which is that it essentially means that the amount of speech you have depends on the amount of money you have, and that presents a very fundamental problem with how the Court views freedom of speech. It often looks at speech issues in a vacuum rather than addressing what it means for the average citizen to have freedom of speech, whether one citizen's freedom to speak by spending money might impact another person's speech and why one person might have access to more speech than another.

03:19 Peter: So this is a case about campaign finance, and the Court here held several things. Namely it held that restrictions on contributions to political campaigns are fine and constitutional because they are designed to prevent corruption, but that independent expenditures, meaning spending by individual citizens who are not donating directly to a campaign, could not be capped and neither could spending by candidates themselves.

03:45 Michael: Right. So in terms of the things we're talking about in this episode, because of corruption concerns, it's fine for Congress to place limits on what I can give to a candidate. So $1000 was the cap then, I think, and now it's $2800 or something like that. At the same time, it's saying that what in campaign finance is called independent expenditures are unlimited, and there are countless examples of that. The Swift Boat Veterans for Truth, everyone older than Zoomers might remember was this group that just did nothing but slam John Kerry in 2004 and call him a coward and a liar and said he stealing valor and all this shit.

04:33 Peter: And they were running their own independent ads separate from the Bush campaign.

04:37 Michael: Right. They were not a part of the Bush campaign, they weren't paid by the Bush campaign, but they were effectively, for all intents and purposes, an arm of the campaign. All they did was just trash a fucking veteran who had gotten a Purple Heart and call him a fucking liar. That's one example. Another would be the Koch brothers, who have built an entire country-wide network of political operatives, where they buy ads, they knock on doors, they flyer neighborhoods, they're like their own political party unto themselves, and oftentimes that's in service of electing Republicans, most often, and sometimes they side with the left on some weird libertarian issues. But that's independent, they're not funding the Republican National Committee and they're not funding Mitt Romney for Senate or whatever, they have their own political apparatus that they fund. The Court's also saying that individuals can't be capped on spending their own money on campaigns, and so that's Mike Bloomberg buying himself a spot on the Democratic primary stage.

05:48 Peter: Yeah, this is an opinion that established what is now a long line of First Amendment jurisprudence concerning election spending that is, in a lot of ways, completely incoherent. It's a mixture of empty platitudes about the importance of speech and a bunch of practical rules that severely limit the ability of the average person to speak, but provide the wealthy and powerful with enormous leeway and flexibility. So Rhi, give us some background here.

06:15 Rhiannon: Sure. Actually, before I give you all the background and the history, I just wanted to say that this case, Buckley, is really, really complicated. It's super complicated. It's by some measures, I guess, like the longest opinion in the Supreme Court history.

06:34 Peter: Yeah, it's a real problem for a podcast whose hosts read the opinions. [chuckle]

06:38 Rhiannon: That's right. But I just want to put out there, this subject area, campaign finance and the First Amendment and freedom of speech stuff, it's just difficult for me to understand, and I think I hate the subject area so much because it feels really abstract to me and unfamiliar, and because it's unfamiliar, I don't like engaging with it. But I just want to say that I know that what we're about to talk about is how this case makes it so that the wealthy are essentially given more speech and more political participation than the rest of us, and that's a major reason why the law writ large doesn't work to serve my people, my community, all of us.

07:18 Rhiannon: So in particular, because this case and Citizens United feel always to me like a discussion that's really outside of my grasp... You know, I didn't take First Amendment either. But things like money is speech, and corporations have speech rights, that always feels like something like only rich people talk about, so maybe particularly because of that, I think I'll probably have questions during this discussion, but I do want to say that I'm happy to be having a conversation that hopefully makes this terrible formal bullshit accessible for more people, because I think that's the point. The law and the political process are not for elites only. We should all know.

07:56 Michael: Right, and I just want to say money is speech is a concept that just is precisely the way law school breaks lawyer brains or something. That like any idiot or any intelligent person on the street would tell you sounds stupid, counter-intuitive and can't possibly be squared with basic understandings of speech, but that's like your pose in class, unless you have a great professor, you're gonna be made to feel a fool. Right?

08:27 Rhiannon: Right. It feels ridiculous. It feels absurd to the point of being incomprehensible, really. So, yeah. Okay, so background. Let's set the scene. Take a journey with me. The year is 1974. Top songs on the charts are bangers like Jungle Boogie by Kool & the Gang...

08:47 Michael: Hell, yeah.

08:48 Rhiannon: Come and get your Love by Redbone and Barbara Streisand's The Way We Were, which I listened to on YouTube today. I don't think it's that good. [laughter]

08:58 Michael: Jungle Boogie, however, is fucking great.

09:00 Rhiannon: Yeah, no, Jungle Boogie, absolute gem, totally. The cost of a new home in 1974 is $38,000. A gallon of milk is gonna cost you a buck 50. The President of the United States was a man named Gerald Ford. And if you're having trouble picturing Gerald Ford, just summon the image of a thumb with the teeth of a horse. That's Gerald Ford.

09:26 Michael: Excellent.

09:27 Rhiannon: So in the wake of the disaster that was the Nixon administration and the Watergate scandal, after which, as you guys know, dozens of individuals and corporations pled guilty to illegally contributing to Nixon's re-election campaign, there was a wave of public demand for campaign finance reform. So the Federal Election Campaign Act, is it known as FECA? Do people say FECA?

09:53 Michael: I think so.

09:53 Rhiannon: The Federal Election Campaign Act or FECA was originally passed and signed into law actually by President Nixon in 1971, but Congress strengthened the provisions of the Act and added some amendments when everyone was like, "Actually, wait, this guy was a total rat fucker. And now we have to change the entire political landscape of the United States." So the resulting FECA of 1974, it basically had five main features. First, it placed limits on campaign contributions, and it also placed limits on campaign spending. It created a system for public financing of presidential campaigns. It set out provisions for disclosure of political contributions, and it also created an enforcement mechanism for the new law. It created the FEC, the Federal Elections... Commission?

10:45 Michael: Commission.

10:48 Rhiannon: Commission, yeah. Alright. [laughter] Like I said, I do not know this shit. Quick note, the main thrust of the opinion in Buckley and what we're talking about today deals with the limits on contributions and spending, and so I just want to clarify again like what those terms refer to. Campaign contributions refers, of course, to individuals or corporations giving money to a political campaign, whereas campaign spending refers to spending, like a campaign hiring staffers, but there's also independent expenditures, which are when non-campaign staff, like a PAC or an individual spend money in support of a politician or a campaign. For instance, like if they bought a newspaper ad for a politician.

11:35 Michael: Right. Right, right. Part of the reason why this is... Like this shit can seem so dense and opaque is that there's just a lot of jargon around it, what's a contribution versus an in-kind contribution? It's very technical. What's the contribution in an independent expenditure, blah, blah, blah.

11:55 Peter: Yeah. All this is is about where people can put their money.

11:57 Rhiannon: Yep.

11:58 Michael: Right.

12:00 Peter: And if you're occasionally lost listening to this sort of jargon, don't worry about it, it's overly complicated in my mind.

12:04 Rhiannon: Yeah, and that's what I was kinda saying up top, formalizing this language and making it super technical is part of what makes people unable to engage with this process the way that rich people do.

12:16 Michael: Right. I was a campaign finance lawyer for a little startup PAC for just under a year, and while we were prepping this episode, I was having trouble figuring out what would be a good example of an individual expenditure that wouldn't be like an in-kind contribution or whatever, blah, blah, blah. It's tough. And it's purposely opaque.

12:37 Rhiannon: Yeah. So the 1974 amendments to FECA were challenged immediately, and in fact, the very next day after the law goes into effect, the plaintiffs file this lawsuit. Now, who are the plaintiffs? Well, it's kind of a bit of a random group of people you would not think would sort of be unified around the same cause.

12:58 Peter: A potpourri.

13:01 Rhiannon: A potpourri. Thank you, yes. The plaintiffs include Senator James Buckley from New York. He is a member of the Conservative Party at the time...

13:09 Peter: Sounds racist.

13:11 Rhiannon: Party candidate. That's right.

13:12 Peter: Quick note here about James L. Buckley, that I think we have to mention. He is the brother of William F. Buckley, the conservative luminary, founder of National Review, National Review, obviously a very conservative magazine, founded in, I think it was 1955 or so, because he was mad about segregation ending from what I could tell, and he was like, I got to have a magazine, so that's this guy's brother.

13:42 Rhiannon: That's right. Also, Eugene McCarthy, not to be confused with Joseph McCarthy. Eugene McCarthy had run for President on an anti-Vietnam war platform.

13:51 Peter: Things didn't go great, though.

13:53 Rhiannon: That's right. Also joining the plaintiffs, the ACLU, the Socialist Workers Party, and the American Conservative Union, among others. You love a little rag tag group of boys in their bell bottoms in 1975 marching down to the Federal District Court in DC to file their lawsuit. So their argument here is that limits on campaign spending and contributions violate the First Amendment because, and I'm quoting heavily from their briefs, because limiting the use of money for political purposes amounts to restricting the communication itself, and because the limits allegedly discriminated against challengers in favor of incumbents who are running for office. The plaintiffs also argued that private campaign financing does not foster inequality of political expression, because large contributions are made on behalf of the whole spectrum of political persuasion, and that the limits would make American politics more unresponsive and inevitably lead to an increase in alienation and apathy. Michael, do you have something to say about this, maybe?

15:04 Michael: It doesn't sound right to me.

15:07 Peter: I gotta say it would be harder for me to find a case where the ACLU and Socialist Workers Party were both on one side and this wrong. But goddamn, were they.

15:20 Michael: Yeah. Some of the third-party plaintiffs offered one of my favorite arguments I've ever read, which is that, look, large donations to them actually wouldn't raise the possibility of corruption because they never win, and so they'll never be in position to provide favors to their donors. I'm the biggest fucking loser in the world, arguably.

15:41 Rhiannon: Socialists, can we please stop embarrassing ourselves like this?

15:42 Michael: Can you imagine that? May it please the court. My dick is tiny. Girls won't talk to me. At least let me take big dollar donations, which I'm sure are gonna be rolling in, Peter, because I got nothing else going for me.

16:01 Peter: Your Honor, I'm far too stupid to leverage this money into political power.

16:09 Rhiannon: That's right. So yeah, in short, what the plaintiffs are saying is that the reforms imposed by FECA would make it harder for challengers to beat incumbents who are running for office, and it would make it harder for third parties and independents to challenge the hegemony of the US two-party system. So they want outsiders and the little guy and the underdog to have a fair shot, and they thought that limitations on spending and contributions unfairly favor incumbents in the big political parties. So I have a question here, which is, why the fuck do they think this? I truly do not understand the argument. At the time, but it seems like a ton of people think this.

16:50 Peter: Yeah, I think, and this is completely amateur historian stuff, it always felt to me like this was just from a different time where the sort of influence of large money on politics wasn't understood to the extent it is today. And a lot of outsiders to the political system viewed fundraising as their sort of way in. So caps on their ability to raise and spend money were reviewed as inhibiting them and entrenching the existing two-party system. In reality, that two-party system ended up being able to successfully intertwine itself with American business and industry in such a way that it had a never-ending spring of money that frankly for any parity outside of those two parties to exist would need to be interrupted.

17:41 Rhiannon: Right. Alright, so let's take a second to get to an ad.

17:48 Peter: So I want to note here that as Rhiannon mentioned, this is a complicated opinion, it is a long opinion, it's so complicated that a lot of sources, if you research it, use charts to explain the holdings of this case. And so we're gonna kind of hone in on a few particularly egregious aspects of it. The opinion starts by essentially rejecting the idea that money and speech are different for First Amendment purposes. In short, the government had argued that regulating financial expenditures was not the same thing as regulating speech, it's just regulating someone's conduct, and it implicates speech. And the Court says, no, spending and political speech are so closely intertwined that they should be treated as if they are the same thing. That's the heart of the argument made by the so-called free speech crowd on this issue, that limiting spending on a communication amounts to restricting the communication itself.

18:47 Peter: So the fundamental problem with blurring this distinction between spending on speech and speech itself is that restrictions on political spending don't limit your ability to speak per se, they limit your ability to reach an audience. They're not controlling the content of the speech, they're just creating a logistical impediment. And to really understand this, you need to understand how the First Amendment has been interpreted. Freedom of speech is not, and has never meant that the government cannot put any restrictions whatsoever on speech. Instead, courts have interpreted it as dependent upon the nature and context of the speech involved, so all sorts of limitations are allowed.

19:30 Peter: There are limitations on the use of obscenity or speech inciting violence, limitations on speech in schools and prisons and in advertising, all of that has been upheld. So it's a little strange here that the Court sort of draws a line in the sand and says that unfettered campaign spending or unfettered spending by rich individuals is a line that it cannot cross, and it puts the right to free speech in a very weird place. The most succinct way I can put it is, are you and Jeff Bezos both protected by the First Amendment?

20:07 Rhiannon: I guess so, yeah.

20:08 Peter: Right, but what does that actually mean? If political expenditures are protected speech, do you really enjoy the same freedom of speech as Jeff Bezos? Of course, you don't. Your experience of that right is so distinct from his, that to describe it as the same right would make the word lose all of its meaning. Anatole France famously said about the law... Yeah, we're doing a couple of episodes straight of us showing off French pronunciation. That was my best effort. Famously said that: "The law forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal loaves of bread." This is the same idea, sort of inverted.

20:51 Peter: The law protects both your and Jeff Bezos' right to buy an election. Whatever underlies Jeff Bezos' right to spend the money on politics, it's a right that you and I don't have, in the sense that you cannot do it and you cannot possibly dream of doing it. So the Court is by equating money and speech cementing into place a right that is only actually experienced by an extremely small percentage of people who happen to already be powerful and already have undue influence on the political process.

21:23 Michael: Right, right. I know we already sort of said like people didn't understand it as well in the 1970s, but Anatole got this shit in the 1870s, right. Like very frustrating. And especially for third-party candidates, this is an unreal self-own. This is like a fucking historic level of shooting yourself in the dick, 'cause as it turns out, money tends to flow, surprisingly, to people already in power, like incumbents, or to people in position to actually exercise power, like the major parties. So in fact, even with contribution limits, it's incumbents and the major parties who benefit the most from big fundraising.

22:12 Michael: It's not hard to figure out that between big money donors, bundlers, who gather together a bunch of big money donors, and corporate spending on independent expenditure committees that it's basically... Or at least up until a few years ago, harder than ever for third parties to compete. The only thing that's really leveled the playing field was like Howard Dean and Obama and then Bernie sort of blazing the trail with online small donors. And with that, it's like a massive uphill battle, you have to have real charisma and a real audience.

22:47 Michael: So yeah, and there are other results. It's not just the elections themselves, like politicians now they spend several hours a day fundraising, which means that they spend more time attending to and talking to their donors than they do their constituents. House members, it's like immediately after their term starts they're into their re-election since it's only a two-year term, and so third-party interests are just like their god, who gives a shit, like if you're not giving me money and you're not voting in a primary, like I do not fucking care, at all.

23:19 Rhiannon: Yeah, and data collected over the course of the decade since Buckley, it bears all this out. The idea that big money spending doesn't have a profound effect on policy and politics, that's just not true, and of course, it's been completely disproven that large donors are spread evenly across the political spectrum. We know that the wealthy minority in the United States have politics and policy preferences that are profoundly different from the average person, and we know that lawmakers also will rush to do their bidding rather than being beholden to the general public.

23:55 Peter: Right. The Court speaks about this as if the speech rights of the wealthy to spend money on political messaging are the only rights being implicated here. But limitations on their right to spend freely are also protecting your freedom of speech by ensuring that your voice is not drowned out by the wealthy and powerful. So when you interpret the law without taking into account these pre-existing power structures and disparities, what happens is you end up effectively codifying those power structures into law and insulating them from attack.

24:30 Michael: Right. And this isn't just like a quirky, weird bit of logic that the conservatives or the Court engaged in here, it's like endemic. The conservative project, as it currently exists, is about protecting existing power structures, and if anything, making sure power flows up from the powerless to the powerful even more, and that's reflected in conservative jurisprudence as much as it is in their policy and their politics. And this sort of dull reasoning that's completely divorced from reality, it's characteristic of a lot of the worst decisions in Supreme Court history, from striking down minimum wage and child labor laws in the 1920s, premised on the idea that a kid is in equal bargaining position as like his employer or her employer, as it is today, like you see these sorts of blinkered decisions and these stupid arguments as well, and it's like...

25:28 Michael: It's the same idea that animates like All Lives Matter. Nobody who says Black Lives Matter disputes that. The whole point is that our society does not actually treat all lives equally, but that's basically what this is. It's like the free speech version of All Lives Matter.

25:44 Peter: Right, right. Yeah, I think the bottom line on this point for me is a real and meaningful reading of the First Amendment needs to account for the fact that part of the purpose of the freedom of speech, according to both the Founders and our courts, is to promote the diversity of ideas. And in that sense, it's not just that allowing uncapped political spending is simply unnecessary to protect free speech, it's that it's actively detrimental. It results in rich people's voices being amplified, while everyone else is denied an equal platform.

26:18 Rhiannon: Yeah, exactly, and that's really what legal formalism gets you, rules that are divorced and completely separated from the purpose that they're serving. And we've said it before, conservatives often weaponize that separateness to claim that the consequences of a legal rule just aren't relevant, and that what really matters is the maintenance of an internally consistent framework. But the consequences of the legal framework that they use, which they claim is neutral, just happen to align beautifully with the conservative political project.

26:55 Michael: And just as an example of what we talk about all the time about how this is bullshit, First Amendment jurisprudence is sort of this tapestry of ad hoc tests in different sorts of situations, and one is, what they call time, place and manner restrictions. And the idea with that is like, look, you can't walk into a quiet residential neighborhood at 3:00 AM and get on a bull horn and start yelling. You can restrict that even though you're restricting speech because the time, the place, and the manner are what's at issue here, not what you're saying. It doesn't matter whether it's liberal or conservative or socialist, the point is that you're disrupting the peace in a way and blah, blah, blah. And so, that gets a very low standard of scrutiny.

27:36 Michael: And you can easily apply that framework here. You can say it doesn't matter what your political point of view is. The manner and the time of speech, the time, during an election cycle, and the manner of speech, spending on political advertising, are what's implicated. And it gets a low level of scrutiny. It's something that the Court is not as concerned with. It's a fine framework to handle this with.

27:58 Peter: Yeah, absolutely. The Court doesn't have to analyze it as this binary thing where you either allow for these heavy restrictions on speech or you allow it to be completely untouched. You're allowed to step in and use common sense rules. And they just don't. And I think what really gives the lie to the Court's reasoning here is how differently it treats different types of political spending in the decision. So, the Court says that you can cap campaign contributions because those can lead to corruption, but you can't cap independent expenditures of money that are designed to help a candidate, but that don't actually go directly to a campaign.

28:38 Peter: So, if you try to donate to Joe Biden, you can only donate X amount and they say, "Yeah, that's fine." But if you decide to independently run some ads for Joe Biden, you can spend as much as you want. This is their creation of the loophole that was eventually blown wide open in Citizens United, and we talked about it a bit there, but it's important to understand how fundamentally ridiculous it is, 'cause the Court is saying that a rich person could buy undue influence with politicians if they were able to donate unlimited amounts to a candidate directly, but if they just run their own campaign ads for that candidate, that's not going to lead to them buying undue influence. There's just no real sugar-coating this.

29:20 Rhiannon: Yeah, it just doesn't makes sense.

29:23 Peter: It's just incoherent. It's a rule that ignores what corruption actually looks like.

29:26 Michael: Yeah.

29:27 Peter: You just can't say that campaign contribution limits are necessary for preventing corruption, but then insist that there can be no caps on independent spending, which provides a simple path to the same exact outcome. So, a lot of this might raise the question of why unlimited independent expenditures favor rich people. Independent expenditures are someone spending separately from a campaign. So, maybe I support Joe Biden and I put out an ad, through a PAC probably, that just says, "Joe Biden, cool guy. Donald Trump, not cool, thank you." That's my ad and I spend $50 million on it.

30:07 Michael: And it is better than about half the ads Democrats tend to run.

30:13 Peter: Right. There's an implied question here, which is why does this benefit rich people? And the answer is pretty simple. Rich people have access to the resources that they need to put together an effective political messaging system. Whereas your average person, yes, you could technically band together with thousands and thousands of people, try to piece together a few corporate entities that you could use to create a PAC and get out a singular message, yeah, you could do that. But you obviously actually can't. And I think that's the bottom line there. You need an enormous amount of collaboration with other people, and the amendments to FECA, in 1974, recognized that, and that's why they capped independent expenditures, because it is something that rich people can take advantage of much more readily than you or I.

31:06 Michael: Right. And there are independent expenditure committees that, honestly, you may have donated to. They're like liberal activist groups like Priorities USA that fundraises pretty well among Democratic activists, but also EMILY's List and Planned Parenthood. They have independent expenditure campaigns and you may have kicked them a few dollars. It's not like the left doesn't take advantage of them, but somebody who gets help from Planned Parenthood, just because you've kicked in $5 to their independent expenditure campaign, isn't gonna be calling you up to take your temperature on an upcoming vote. Fucking Kirsten Gillibrand isn't gonna do that. Whereas, if you are a millionaire or a billionaire bank rolling one of these things, then yeah, you just might be getting those phone calls.

31:56 Peter: Right. I mean, to put this in perspective, I think the final tally on Michael Bloomberg's campaign spending, I'm not sure that I recall exactly what it was, but it was in excess of $500 million. That would be one of the most successful Democratic-oriented PACs in history, were it to be a single PAC rather than Michael Bloomberg campaign. The ability of people like him to snap their fingers and make enormous volumes of money appear to impact the political process is just unparalleled. There is no amount of collaboration across the working class that can realistically match it.

32:36 Peter: So it's important to understand that this arbitrary and superficial distinction between contributions given directly to a campaign and independent spending in support of a campaign is the foundation upon which modern campaign finance law is built. We're nearing half a century later, and the fundamental absurdity of this distinction is still what underpins the majority of campaign finance law. It doesn't take a genius to realize that the function of this ruling is that the most accessible method for the average person to help a campaign, by giving the campaign some money, is restricted, while the Court gives the green light to unfettered spending in areas that are, in practice, exclusively available to the rich.

33:23 Michael: Right. So, one thing we haven't really talked about, and it's kind of so big that it swallows this stuff, but also ancillary with independent expenditures, the law had originally created like spending caps for campaigns. So, the idea would be like, it doesn't matter how many people are willing to donate to you, and whether or not you could raise $50 million. You can only spend $10 million on a presidential primary. You could only spend $20 million on a presidential election, and there were other limits for the Senate based on population in the state and things like that. And again, with independent expenditures being unlimited, it almost doesn't matter whether or not those campaign limits would exist, but it is kind of amazing to imagine a world where independent expenditures are capped and campaign spending is capped, and it's so different from ours, but where the campaigns effectively always have spending parity.

34:20 Michael: They can only fundraise to a point and then it doesn't matter anymore. Then all they can care about is talking to voters and winning voter approval. Candidates in office fundraise until they have enough for their next primary and general election, and then they can focus on legislating and paying attention at their fucking committee meetings and all that. It's so phenomenally different from the world we live in. It's hard to wrap your head around.

34:46 Peter: Right. It really is imagining a world where a politician has no particular use for a rich person. It would completely flip on its head how politics operates right now. It's also because that is so far in the rear view mirror, that rule, it's not particularly relevant to today. At the same time, had it gone the other way, you can envision just a completely different political atmosphere.

35:11 Michael: Yeah, exactly.

35:12 Peter: So an important part of this decision is that it ruled that any caps on a candidate's ability to spend on their own campaign, to invest in their own campaign, were unconstitutional, paving the way for the modern presidential candidate, which is just some rich asshole. All you need to do to be a candidate in this country is to have a lot of money, and bang, your infrastructure is there, which is why our fucking president is just some guy who was rich, right? He could build on that wealth, and just kind of turn it into a political campaign. On the other side, you have these absolute losers, Bloomberg, Howard Schultz, Steyer.

35:52 Michael: Schultz. I forgot about Schultz.

35:52 Peter: These fucking losers who are just like, "Well, I'm sitting on a whole bunch of money." You can turn that into a relatively viable presidential campaign in no time because of this fucking decision.

36:05 Michael: Right, and it's not nothing, like Bloomberg sort of crapped out, and there's a sort of a savvy DC insider take that Elizabeth Warren crushed him in a debate, and it turns out he's not a very good candidate when he's on stage with a bunch of professionals, but he actually, in the states where he and Warren were both on the ballot, he beat her in a lot of them and did very well. And that's just 'cause he could spend a lot of money on like good, sophisticated advertising. And a lot of people didn't know that he wasn't a Democrat, and a lot of people thought that Obama had endorsed him, because of the way he cut these ads. I was in fucking Mexico on vacation and I was seeing Bloomberg ads. It was ridiculous.

36:46 Peter: Yeah. I think that a lot of those candidates, like Schultz, Bloomberg get dismissed because they lost, right, because their campaigns eventually lost steam. But you have to put in perspective what they were starting with, which was very little in every case. No infrastructure, no coherent clear message. They took that and turned it into center stage Democratic primary campaigns. They didn't have to do what Bernie did and build years worth of infrastructure. They skipped over the step that Liz Warren sort of failed to complete, which is getting that initial investment and turning it into infrastructure. They skipped over that entirely. I mean, that's why these losers with absolutely nothing interesting to say about the current state of American politics are nonetheless driving its debate.

37:38 Rhiannon: Yeah. So, my takeaway from Buckley, right, cutting through all the bullshit, what it comes down to, for me, is that it caps what I, Rhiannon, as an individual, could give to a campaign. But on the other hand, it doesn't cap what, say, Michael Bloomberg can give to his own campaign or what a stupid bitch like Sheldon Adelson can spend on whatever politician he wants.

38:04 Peter: Right. And the differential treatment across classes under the First Amendment isn't limited to this case. The Court's interpretation of the First Amendment varies wildly and inexplicably depending on context. We have noted in the past that the Court has severely limited speech rights in schools, basically saying that the government has an interest in maintaining order in schools that outweighs the value of student speech, to the point where First Amendment protections for speech barely apply in public schools, frankly.

38:33 Peter: Contrast that approach with this one, where the government's interest in containing political corruption that would undermine our entire political system is treated as if it's sort of irrelevant, as if it's just sort of a sideshow and drastically less important than the right of someone to spend money on politics. That's the game played by the Court in these cases. Sometimes they'll treat First Amendment rights as though they're sacrosanct and untouchable, but when it's convenient, they'll disregard them as trivial.

39:02 Peter: And I want to give an example that includes both freedom of speech and another First Amendment right, the right to peacefully assemble. I imagine many of our listeners have participated in protests in recent weeks and months, and you may have noticed that despite speech and assembly both being protected rights under the First Amendment, protesters cannot speak or assemble very freely at all, right? Among other things police can tell you where you can protest, they can often require you to have a permit to protest, they can infiltrate protests with undercover cops, and of course, they can and do violently disperse protests when they deem it acceptable.

39:42 Peter: These practices are often upheld by courts as being necessary, similar to speech in schools, because the government has an interest in maintaining order and preventing violence or whatever they claim they're fucking doing, right? And then you contrast it with this, and it's sort of jolting how rigid and inflexible the Court suddenly becomes when the speech interests are not of protesters or your average person, but instead of rich donors. Your ability to influence politics is limited in every regard, your ability to donate, to organize, to protest, all subject to a variety of limitations upheld by the Supreme Court. But the rights of the rich and powerful are not up for negotiation, the freedoms that belong exclusively to rich people are where the Court suddenly refuses to compromise.

40:30 Peter: When you hear people on the left say that the law is designed to reinforce existing power structures, this is what they're talking about, this is what we are talking about. To the Court, the right of power to defend itself is untouchable, while the rights of masses of people to exert pressure against that same power are trivial and can be easily cast aside.

40:52 Michael: That's right.


41:00 Peter: Next week is Epic Systems v. Lewis, a case from a couple of years ago where the Court upheld class action waivers, meaning that employees could be made to forfeit their right to bring a class action against their employer.

41:16 Rhiannon: Sounds shitty.

41:21 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.


41:46 Leon: From the Westwood One Podcast Network.