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Campaign Finance Debate

Paul Mahoney

Paul G. Mahoney

In November 1975, Ralph K. Winter, Jr. (who would later be appointed to the 2nd Circuit and for whom I was privileged to clerk) argued before the Supreme Court for the appellant, Senator James Buckley, in Buckley v. Valeo. Winter began his First Amendment challenge to the Federal Election Campaign Act’s expenditure and contribution limits in what might seem an odd place. He brought to the Court’s attention an obscure provision exempting from the expenditure limits the cost of preparing materials sent “under the frank.” The effect of the provision, he noted, was to give incumbent members of Congress the right to spend funds without limit to communicate with constituents on matters of public concern while limiting the ability of a challenger to communicate with the same voters on the same issues.

By arguing that the statute facially discriminated against certain speakers, Winter connected the question of the FECA’s constitutionality to that of its uneven treatment of incumbents and challengers. He also identified ways in which the statute would advantage candidates nominated by a party over those running as independents and advantage established advocacy organizations over those created to advocate for a particular issue.

One strand of the intellectual (as opposed to the political) debate over the desirability of campaign finance reform has largely followed the script set by that day’s argument. Opponents of campaign finance regulation argue that because such regulation is enacted by incumbents, it is inevitable that the drafters will take their own interests into account and put greater limits on their challengers’ speech than on their own. Proponents argue that an unregulated system creates still greater ills by discriminating in favor of the corrupt or opportunistic candidate willing to privilege the interests of donors over those of the public.

The conversation with Bob Bauer ’76 and Trevor Potter ’82 in this issue fits into that strand of the debate. Bauer and Potter, as readers of the UVA Lawyer know, are two of the most experienced and respected political law practitioners in the nation. Many of their observations about the Citizens United case concern the details of modern campaign finance and its regulation. They discuss the likely impact of various forms of regulation on the marketplace in political ideas. In that sense, the discussion is very much in the spirit of the Buckley argument.

A separate strand of the debate puts aside the practical effect of campaign finance regulation and contends that an answer to its constitutionality can be found in bedrock First Amendment principles. Professor Lillian BeVier’s essay is a thoughtful example. As she notes, judges and scholars have long identified the prevention of government interference with political speech as the core of the First Amendment. Proponents of regulating campaign finance argue that spending is not speech. Professor BeVier and others would respond that any effective form of speech is preceded by an expenditure, if only the purchase of paper and pen, and a clever draftsman can therefore turn any ban on speech into a ban on spending money to engage in that speech. The rejoinder, according to Professor Deborah Hellman, who will join our faculty next year, is that spending money is a vital component of many constitutional rights but we do not allow that argument to void regulation generally. Proponents also draw a sharp line between individual and corporate speech. Opponents note that much, if not most, political speech today comes from organizations rather than individuals. Courts have usually looked askance at paternalistic arguments that voters need to be shielded against particular types of speech. The point has particular relevance for us as it stems directly from Jefferson’s argument that “errors of opinion may be tolerated where reason is left free to combat it.”

I hope you enjoy reading about the campaign finance debate and the role our alumni and faculty have played in it.