Ex Officio: Select Conference Notes from the Burger Court Justices’ views on Campaign Finance Laws

McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees.  This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976).  The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.

Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.

Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny.  That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act.  Here again, the Court was badly divided.

In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.

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The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975: 

Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”

“The disclosure provisions are the heart of the whole thing for me.  I think these provisions are constitutional and highly desirable.

Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”

Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”

“The expenditure limitations are wholly unconstitutional.”

“I see no First Amendment problems in political committees.”

Justice Byron White: “Giving money is an act, and acts are regulable.  Congress has said that the dangers of money to fuel corruption require regulation.  Neither content of speech nor censorship are involved here.”

“The [[$1,000 individual limits on contributions to candidates and a $25,000 overall limit] is troublesome, but I think I  can sustain it.  Maybe we ought to duck vagueness for now.”

“The expenditure limitations are constitutional because otherwise, despite the contribution limitations, you can get and spend all the money you want.”

Justice William Rehnquist: “I don’t agree with Bill Brennan’s view of the First Amendment.  For me, the core of the First Amendment is its proscription against Congress, and this act does not further First Amendment values.  We may be a representative democracy, but this law abridges, rather than furthers, First Amendment values.  Contributions to a candidate for him to spend I can uphold – this is action, not speech.”

“The expenditure limits violate the First Amendment.”

Justice Lewis Powell: “This statute [the Federal Election Campaign Act of 1971] is a revolutionary change in the system under which we have lived for over two hundred years.  The entire act, in purpose and effect, perpetuates the grossest infringement of First Amendment rights.  This act, in effect, will advantage incumbents and disadvantage challengers.  Instead of a system that is neutral on its face, where all scramble for all [the] money they can get, this law rigs the structure for incumbents.  Moreover, exemptions for media, corporations, and labor unions only guarantee a greater concentration of power to keep the ‘ins’ in office, or at least determine who shall be the representatives.  .  . . Section 608(e) [re [$1,000 individual limits on spending “relative to a clearly identified candidate”] is the most drastic abridgement of political speech since the Alien and Seditions Acts.”

Justice Harry Blackmun: “On contributions, as with other issues, the First Amendment is the core of our problem.  We must balance interests.  The effect is to equalize the interested with the disinterested person.  Nevertheless, there is serious First Amendment infringement that is simply indefensible in the expenditure provisions.  Even in the disclosure provisions, I can’t go for much, except for a case by case approach. . . . I agree that §608(e) is unconstitutional. . . . Expenditure limitations are unconstitutional. . . . I am incline to affirm on disclosure, but want to keep open the questions of the $10 and $100 limits.”

Justice Thurgood Marshall: “I think that §608(e) is constitutional. Section 608(a) is unconstitutional in limiting the candidate, but O.K. as to family limits. The expenditure limitations are constitutional.”

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The following are selected excerpts from the Justices’ conference notes in FEC v. National Conservative Political Action Committee, which was argued on November 28, 1984: 

Justice Harry Blackmun: “Buckley is a disaster.”

Justice William Rehnquist: “Spending money to say your piece in a presidential election must be at the core of First Amendment protections.”

Justice Lewis Powell: “If this [law] isn’t unconstitutional, individual and small groups would be powerless to participate meaningfully in political campaigns.”

Justice John Paul Stevens: “Without Buckley, I would have trouble with a distinction between contributions and expenditures.”

Ronald Collins is the Harold S. Shefelman scholar at the University of Washington School of Law.  He is the co-author (with David Skover) of a forthcoming e-book on the McCutcheon case. The book (published by SCOTUS: Books-in-Brief, an imprint of Top Five Books) will be available within days after the case comes down.  

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