At its {Buckley v. Valeo, 1974] center is a distinction between expenditures and contributions. The Court said that, under the First Amendment, Congress could not restrict campaign expenditures. Spending money was like speech itself, because “every means of communicating ideas in today’s mass society requires the expenditure of money.” That included printing handbills, renting halls, and buying ads on television. It is a result of Buckley that wealthy candidates like Mayor Michael Bloomberg can spend as much as they want of their own money on their campaigns; it would be unconstitutional to limit their expenditures.
But, according to Buckley, limits on contributions were constitutionally permissible. The Court said that a campaign contribution served only as “a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” In the Court’s view, limiting contributions did not significantly inhibit political expression by the person giving the money. This was why the Court concluded that it was permissible for the law to limit how much an individual could contribute to any particular campaign.
In the 1974 law, Congress had tried to set up a tightly controlled system for financing campaigns: the government would monitor and regulate both the inflows and the outflows of money. It is not clear that the proposal would have worked as intended, but at least it made holistic sense. Congress could essentially select a number for the over-all price of a congressional or Presidential campaign, and then force candidates to live within that number. Buckley ended that system before it even started, and imposed a different one, of the Justices’ own creation. The court declared that contributions could be limited but expenditures could not, and for two generations that distinction has been the central feature of the constitutional rules of campaign finance. The bottom line was that money is speech.
- Jeffrey Toobin, "Money Unlimited," an analysis of the Citizens United case, in the May 21st issue of The New Yorker
The "bottom line", of course, is Toobin's; he himself has just written, in the prior two paragraphs that the "bottom line" is not nearly the bright (and in the paragraphs preceding it, he points out that Buckley v. Valeo is a contradictory, complicated, and extremely long decision that's hard to understand). But "bottom line'... Toobin's happy to shorthand it for you.
And shorthand that, and much else, Toobin does, for pages and pages in The New Yorker. Poorly written, sloppily fact checked - somewhere, the ghosts of the old New Yorker staff are spinning in mausolea - Toobin's exercise is mainly one of Supreme Court soap opera, full of (unverified, as far as I can tell) postulating on who does what to whom and how the Important Work of the Law gets injured in the process. Toobin's take is catnip for liberals, and blasphemy to conservatives, but both reactions give Toobin too much credit. Toobin's lazy assertions, like the breezy (and popular) sum-up of Buckley, tend to show that his investigation of campaign financing, never mind its "reform" are secondary to scoring political points and cheap shots (his disdain for Roberts, Alito, Scalia and especially Clarence Thomas are glaring). Though Toobin attempts - and he'd have to, because otherwise the article is little more than gossipy fluff - to ground his storytelling in a historical and theoretically detailed historical perspective, his retelling is slapdash, lazy, and lacking in useful specifics. For instance, he breezily sums up Watergate and the campaign reforms out of it - which led to the Buckley case - without really laying out why Congress approached the reforms as it did, or which aspects of Watergate were the real drivers for reform). This matters, I swear. He's equally lazy, and curiously vague, when describing the even earlier aspects of the Gilded Age-era practices that first led to some attempt to regulate campaigns; and he acts as if problematic campaigns, never mind questionable campaign spending, suddenly became an issue after 1870 (try looking up "Ma, Ma, who's my Paw?" for just one earlier example).
All of which makes soggy, slippery ground for Toobin to try and ground the discussion of Citizens United, though mostly Toobin can't be bothered to lay out the specifics of McCain Feingold, why they were seen as problematic from before the law even passed, and why the Supreme Court started looking askance at the law soon after it became law. And Toobin can't really avoid the fact that First Amendment issues were a concern for the Court well before the specifics of Citizens United were brought to it (a case called FEC vs. Wisconsin Right To Life in 2007 made clear that the Court was concerned about speech restrictions), but he insists that it's a "crusading" Court, led by John Roberts, that's trying to eviscerate Campaign Finance Reform. I'm at least pretty sure that's not how they would puit it; but you'll never know from Toobin, since he makes virtually no attempt to get perspectives from anyone who seemingly disagrees with his assessments.
I'm not trying to defend the Citizens United decision, or suggest that money equals speech is a great standard; if anything I don't need to, since Toobin's article, really, does most of that work itself. Though Toobin is incredulous about the path that set the Court towards overturning McCain Feingold, he does, in fact, backhandedly lay out why the decision's logic makes internal sense: trying to separate a biased, provocative, deliberately propagandistic film from other forms of political "advertising" is in many ways a distinction without a difference, and whie the Court is more willing to regulate advertising than other forms of speech, political advertising, because it is a form of speech so central to our Constitutional approach (elections, where people can freely debate ideas and assumptions), gets more than usual protectionunder the First Amendment. That's why "money=speech" is complicated, and difficult. The money Proctor and Gamble spends to sell Tide is not afforded special consititutional protections. But Mayor Bloomberg's ability to spend his own money to advocate for his own election is. And probably should be.
In any event, exploring this fascinating, difficult, and challenging subject would make for a great, thoughtful article one could chew over and debate with friends. The most frustrating thing is that Toobin hasn't written it. Which is reason enough not to bother reading it.
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