If — or when — the Roberts Court in the next couple of years strikes down the last remaining Watergate-era campaign finance laws, the question will shift to: Who is to blame? It will be easy for liberals to say it was the conservatives, especially those on the U.S. Supreme Court, the Republicans or even the Koch brothers. But the reality is that the seeds of campaign finance reform’s demise lie in the very case that started it all – Buckley v. Valeo, which tested the constitutionality of political contribution and expenditure limits.
The core of the 1976 Buckley analysis was simple — the Federal Election Campaign Act’s “contribution and expenditure limitations both implicate fundamental First Amendment interests.” At no point in Buckley did the court ever say “money is speech.” The language was more ambiguous, suggesting that money raised First Amendment concerns; that the use of money was neither pure conduct nor pure speech; and that money was linked to free expression, especially when it came to political expenditures. The court eschewed promoting equality as a compelling interest justifying restrictions on money, settling on preventing corruption and its appearance as reasons for limiting contributions, but not so for expenditures.
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