Content-Type: text/html The Lochner Monster Redux: Buckley and the Path of Legal Realism in Today's Campaign Finance Jurisprudence The Lochner Monster Redux: Buckley and the Path of Legal Realism in Today's Campaign Finance Jurisprudence The Lochner Monster Redux: Buckley and the Path of Legal Realism in Today's Campaign Finance Jurisprudence by Emily Erickson, abd S.I. Newhouse School of public communication Syracuse University 4846 Briarwood Lane Manlius, NY 13104 315.637.5825 [log in to unmask] Introduction Decades of legislation and jurisprudence have failed to render a definitive solution to the sad system of campaign financing in the United States. Giving money to the political party or candidate of one's choice, many continue to argue, is pure political expression and thus warrants the highest First Amendment protection possible - in terms of both speech and associational rights. But this heady view of campaign finance is weighed down by a cumbersome web of laws that appear to pervert the electoral process by continuing to enable those with money to dominate the ostensibly free marketplace of ideas. Indeed, campaign finance reform has become one of the key issues in the 2000 presidential campaign. This, however, is little comfort to those who know the pattern of creating, stalling, and killing reform that Congress has perfected over the years. Barring a much stronger mandate from the public, the legislative branch seems helpless to reform the system that requires its members to spend an increasingly disproportionate amount of time soliciting money to stay in office. The judicial branch has been loathe to intervene substantively as well, limited in its analysis of proposed state legislation and Federal Election Commission actions by the strictures of the Supreme Court's notorious 1976 decision, Buckley v. Valeo.[1] It was in Buckley that the U.S. Supreme Court articulated its defense of campaign expenditures as highly protected political speech. Since that time, the Court has continued to cling fast to that defense based on its traditional First Amendment analysis, even as the campaign finance system has worsened in the face of increasing campaign costs, loopholes and outright violations of existing law. This past January, the Court handed down its newest ruling on the subject, upholding the Federal Election Campaign Act's $1000 federal contribution limit that it first upheld in Buckley.[2] However, in this new case, Nixon v. Shrink Missouri Government PAC, advocates of campaign finance reform were heartened, in part because the $1000 limit was still considered viable in the face of the challenge to its economic shrinkage - $1000 today, the Missouri PAC argued, has been whittled away by inflation to what would have been, in 1976, merely $400. Justice Souter, writing for the majority, refused to wrangle with the issue of buying power, however, and insisted that the $1000 limit was designed merely to ensure that the potential contribution wasn't "so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless." On its face, Nixon is a fairly minor decision. Indeed the majority opinion makes clear that the Court considers the ruling a narrow one. However, the presence of six names on two concurring and two dissenting opinions demonstrates that the justices continue to be uneasy with the present state of jurisprudence in this area, and shows them wrestling with their level of judicial activism, with the basic premise that money is speech, and with the line drawn in Buckley that resolutely separated contributions and expenditures, offering the latter the highest First Amendment protection possible. Is the Court edging closer to a willingness to reassess its Buckley decision and, more importantly, the formalist First Amendment approach it has taken in its scrutiny of campaign finance laws? Or will it change its direction in a more subtle manner, trying to solve the problems of campaign finance under the increasingly thin cloak of traditional First Amendment jurisprudence with notions of scrutiny and government interests that, in terms of campaign finance decisions at least, seem to offer little in the way of real insight to the problem? In the past two decades, while the Court has continued to shuffle through cases that elaborate, but don't always illuminate, campaign finance law,[3] a broader academic movement has begun to soften the edges of First Amendment formalism.[4] Seen together, these two developments bear something of a resemblance to those which secured the demise of America's laissez-faire economy and heralded in the New Deal. Notably, scholars intent upon restructuring First Amendment interpretation have echoed the legal realists - and the Court's recent decisions, Nixon in particular, may point to the end of the marketplace analysis that has hampered judicial campaign finance decisions thus far. This article will trace these developments, seeking to determine to what extent the legal realist approach has been adopted by the Court in its most recent campaign finance decisions, and whether there is a case to be made that the approach will ultimately win the day, as it did when the legal realists helped move the country from a deeply entrenched tradition of laissez-faire economics to a modern-day welfare state. Part I will briefly outline the historical context surrounding the legal realist movement, its critique of formalism and its progressive agenda; Part II will sketch the path of jurisprudence and scholarly debate regarding campaign finance reform, drawing parallels between the two movements; and Part III will provide an analysis of the recent cases, Nixon in particular, assessing the areas in which the Court continues to hold fast to formalist First Amendment doctrine and where it is cracking open the door to let in legal realist principles and methodologies. It may be possible, this paper argues, that a realist approach may ultimately be what takes campaign finance reform past formalist First Amendment constraints just as realism provided the intellectual basis for escaping the Lochner legacy and reconceptualizing the economic marketplace in the 1930s. The Lochner Monster: Legal Realism's Historical Context "The emphasis of our era is on change," wrote Jerome Frank in what was arguably legal realism's most accessible and radical work, Law and the Modern Mind. "The present trend in law is, accordingly, away from static security - the preservation of old established rights - and towards dynamic security - the protection of men engaged in new enterprises."[5] He was right. Frank and the other "co-founder" of legal realism,[6] Karl Lewellyn, have been described as fortunate actors whose stage - America during the Great Depression - facilitated notions "that just a short time before seemed impossible, if not illegitimate."[7] Crashing after a national binge of good times and easy money, the country was willing to consider change, even if it undermined one of her most cherished institutions: the competitive free-market economy. Although scholars cite realism's broad critique of orthodox legal reasoning as its most enduring legacy,[8] its critique of a neutral, self-executing marketplace was arguably more important to its own era. This progressive agenda was put forth in one of the era's most influential books, Thurmond Arnold's Folklore of Capitalism. Arnold, using the vocabulary of anthropology and sociology, discussed America's social, political and legal institutions in order to build a case for progressive change in the country's thinking about, and reliance upon, these organizations. As a progressive, he advocated reconsideration of the government's capacity for offering Americans security; as a cynical realist, he defined the rituals and socially constructed principles that would effectively clothe America's change of view. At that point, a key obstacle to this change had manifested itself in the form of nine recalcitrant Supreme Court justices, "the majority of which [were] fighting for the old world that had disappeared."[9] But their formalist resistance to state intervention in the economic market would die away in the face of a stronger imperative: the nation's desire to escape the Depression through progressive legislation. Methodologically, the legal realists engaged in their marketplace critique much the same way they approached orthodox legal reasoning. They began with the premise of "no neutral principles," the notion that the rules, judicial tests and precepts were all artificial constructs used to hide the reality that judges were not neutral; nor were the ostensibly objective principles on which they often based their public reasoning. Instead of continuing to base decisions on these decorative principles, divorced from the complexities of their impact upon society, judges were encouraged to draw upon analytical frameworks from other fields to gauge the practical consequences of law. The realists also worked to collapse the long revered boundaries between the state and the capitalist economic marketplace - which was ostensibly free from governmental intervention. The legal realists, however, argued that the economic marketplace was, in reality, a product of the state through laws that already regulated property, contracts, taxes, etc. Thus, because the state had helped create the marketplace, intentionally or not, it had a right and duty to continue acting in the latter sphere to correct injustices and inequities. Finally, the realists advocated an empirical rather than theoretical balancing of values when those values conflicted with one another. Indeed, the legal realists' overarching purpose, despite the skepticism that clothed it, was to forward a progressive agenda. The first of these, "no neutral principles," was at the heart of legal realism's questioning of objective legal reasoning. It was also one of the movement's intellectual weaknesses, for it was an argument that threatened to collapse into itself. At the courtroom level, it materialized as the critique of a given judge's thought processes as he or she made decisions purportedly based on legal rules and precepts. Karl Lewellyn, for example, argued "that the components of current legal doctrine exist as a result of historical circumstance (i.e., judicial personality, economic forces and pure accident) rather than logical necessity."[10] Law itself, he wrote, was like "an engine . . . having purposes, no values in itself."[11] Emerging from an era that had debunked religion, the realist movement sought to debunk what it saw as the religion of legal determinism. Arnold, for example, derided the feverish loyalty to the lawyer's "Word," the Constitution.[12] Felix Cohen, who called formalist reasoning "transcendental nonsense," wrote that it "is through the union of objective legal science and a critical theory of social values that our understanding of the human significance of law will be enriched."[13] Critics of the movement pointed to the inability of realists to reconcile their indeterminate law with their progressive agenda - the latter of which logically demanded some principles toward which to progress. Applied to the marketplace, the "no neutral principles" critique was a means to undermine the entrenched values of a laissez faire economy. "By challenging the mechanistic application of principle and rule, Realist analytic jurisprudence promoted the policy-evaluation of doctrine, a prelude to Realist proposals for social reform."[14] Realists who did courtroom work concentrated their efforts on contractual law, seeking to prove that players typically involved in contracts were seldom on even footing with one another. This facet of legal realism reached back to the watershed case of Lochner v. New York, in which the revered Supreme Court Justice Oliver Wendell Holmes argued that his colleagues were wrongfully fighting the tide of public opinion regarding the shortcomings of laisse-faire economics. Indeed, basing his rationale on the modest notion public opinion rather than a formal legal principle or test, Holmes transformed Lochner from a minor case about the working hours of New York bakers into a legal landmark. "This case is decided upon an economic theory which a large part of the country does not entertain," Holmes wrote, "If it were a question of whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive it to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of the majority to embody their opinions in law."[15] New York's bakers didn't get fairer working hours from the Lochner Court, but their woes made some in the legal and political community begin to reconsider the wisdom of an unregulated contractual market. More generally, the realists railed against all forms of jurisprudence based on a view of law as static and unchanging. Even the Constitution, they believed, was not immune to changing times.[16] Because realists believed law must change with society - in terms of public sentiment, economic realities, etc. - they had to suggest ways in which judges should recognize and meet those changes head-on. Thus, rather than using disingenuous legal principles to clothe non-neutral decision-making processes, judges were urged to utilize the outputs and approaches of other disciplines in their considerations. Lewellyn took a historical approach; Frank took a psychological one; others used economics, sociology, anthropology and combinations thereof taken from the social sciences. At the root of this interdisciplinary approach was a belief that the law alone did not have the tools to assess how society was changing and what effect statutes and precedents had on those changes. And thus if justice was indeed the desired end - a notion to which the legal community paid lip service, and the legal realists adhered - then practical, concrete justice itself was an impetus to seek the best course in an ever-changing landscape of social realities. "A just claim," wrote Edwin Garlan, "is a need brought to the attention of law and, if recognized as such, becomes a member or part of justice on good behavior and de facto."[17] According to this framework, the laissez-faire approach to economics warranted a dismissal. Any sociologist could see it had failed to provide the American public with justice during the Depression. Clearly, it had to be replaced. Since the early forties, legal realism has been pronounced dead - and described as pervading the entire American legal system. Some scholars, particularly the self-dubbed heirs of legal realism, critical legal scholars, have derided the assimilation of legal realism's constructive program into contemporary legal education and jurisprudence.[18] However, even its most widely accepted premises, i.e., incorporating policy analysis into jurisprudential decisionmaking, still seem somewhat radical when applied to the nation's sacred First Amendment. Building the Beast: Buckley v. Valeo After drafters of the Federal Election Campaign Act[19] attempted to correct the undesirable facets of modern day campaigns, the Supreme Court undermined some of its provisions in Buckley v. Valeo, ruling that restrictions on campaign expenditures were unconstitutional.[20] It was in the wake of this decision that scholars began churning out articles dissecting the complex free-speech issues involved in campaign finance reform.[21] The Buckley case was, like Lochner, a widely criticized one.[22] Once again, the Court had stampeded legislation made by the public's elected representatives and designed to correct inequalities in the marketplace - this time, the marketplace of ideas. In doing so, the Court demonstrated that it was several steps behind the rest of the United States in perceiving only a narrow quid pro quo corruption issue within the articulated need for campaign finance reform, as opposed to the more subtle, systemic decay.[23] Rejecting the rationales of 1) equalizing the ability of citizens to affect election outcomes and 2) controlling campaign costs, the Court ruled that corruption or the appearance of corruption were the only justifications for restricting campaign contributions. It distinguished between monetary contributions made directly to a candidate's campaign and expenditures made independently of a candidate's campaign, revoking restrictions on the latter altogether. Restrictions on such expenditures, the Court argued, "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Noting that "virtually every means of communicating ideas in today's mass society requires the expenditures of money," the Court made a conceptual leap that continues to be hotly debated, namely, that - in the case of independent expenditures - money is speech.[24] Clearly, reasoning like this was a far cry from the formalist rules and precepts that governed the Lochner decision. It reached beyond the courtroom to societal realities, like the amount of money required to communicate effectively in modern society. Nevertheless, by insisting that quid pro quo corruption - i.e., bribery - was the only means around First Amendment constraints on campaign finance, and that restrictions on expenditures would be examined with strict scrutiny, it followed the Lochner path and continued to maintain that a laissez-faire approach to marketplace of political ideas was appropriate. Many legal scholars disagreed. The most provoking statement made by the Court surfaced in virtually every article thereafter: "[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."[25] In saying this, the Court explicitly rejected the notion of equality considered by many to be at the root of the current campaign finance malady. "Corruption, so understood," protested David Strauss, "is a problem only to the extent that other things are problems: primarily inequality and the interest group character of politics."[26] Mark Tushnet argued that the Supreme Court was using free speech doctrine for the same ends as the Lochner Court did: to protect the economic interests of America's wealthy and powerful.[27] And Gerald Ashdown accused Buckley and its progeny of leaving campaign finance "even more troubled than it was prior to attempts at legislative reform," leaving nonwealthy candidates with a more difficult task of raising money than before, and simply leaving the wealthy candidates and PACs alone altogether.[28] Here again, scholars were protesting the inherent unfairness of a marketplace that translated economic advantage into power. This time, however, the power lay in the realm of political speech rather than contracts. And, reaching back to the realists' critique of the public/private distinction, many were challenging the government to take responsibility for the inequities present in the private sector instead of the traditional First Amendment challenge to refrain from abridging rights itself. The marketplace of ideas rested on the assumption that "the current distribution of social power and resources must be roughly what fairness and justice would dictate,"[29] and that the best ideas would naturally rise to the top. Instead, it seemed that incumbency and money were the primary determinants of electoral success.[30] As such, it was arguable that once again that there were structural problems created by the state (public sphere) - i.e., an electoral system that privileged the speech of the powerful (private sphere) - which required correction by that same state. It was time for intervention in the marketplace of ideas; the legislature had been willing but the Court was not. At the core of the Court's refusal to consider equality a viable issue of debate was its formalist approach to the First Amendment, which has been granted a preferred position in modern jurisprudence. It was, according to the Court, designed "to secure the widest possible dissemination of information from diverse and antagonistic sources," and "to assure unfettered interchange of ideas for the bringing about political and social changes desired by the people,"[31] and yet, the Court failed to explore whether or not the marketplace - in terms of the electoral process - was indeed serving these ends. The legal realists had faced a similar problem. While the majority of America was ready to loosen its hold on the sacred economy, the Court was stuck in its Lochner thinking: "The language of compulsory subsidy - of taking from some the for the benefit of others - was central in the Lochner period," Cass Sunstein has noted. "Regulatory adjustment of market arrangements was seen as interference with an otherwise law-free and unobjectionable status quo. It was a state-mandated transfer of funds from one group for another, and this kind of mandate was constitutionally illegitimate."[32] And it wasn't until 1937 that "the legal culture came to think that existing distributions were a product of law, were not sacrosanct, and could legitimately be subject to governmental correction." In Franklin D. Roosevelt's pointed words, "We must lay hold of the fact that economic laws are not made by nature. They are made by human beings."[33] With a clear decision by the present day Court to continue placing the First Amendment in campaign finance reform's path, academics began making arguments for equality that sounded much like those of their counterparts 50 years earlier. In addition to collapsing the public-private distinction in order to justify a call for government intervention, many began the task of intellectually undermining the libertarian approach to the free speech principle, by questioning its status as a fundamental right.[34] Scholars scrutinized in particular the assumption that free speech should be privileged over equality. Starting from the premise that the First Amendment was not apolitical to begin with, critics went on to argue that it failed to engender liberty altogether. "[B]y elevating speech above virtually every other value," wrote Tona Trollinger, "the marketplace model prevents attainment of the requisites of individual health that are the essence of liberty . . . thereby diminishing the possibility of substantive equality and of real communication."[35] Jeffrey Blum argued that the First Amendment had been completely misread by the Buckley Court and was in fact designed to bring about a more egalitarian marketplace of ideas.[36] Equality, Sunstein wrote, embodied, in part, "a distinctive conception of political respect. Markets are operated on the basis of quite different understandings.... [They] embody their own conception of equality insofar as they entail a principle of "one dollar-one 'vote'"; but this is not the conception of equality appropriate to the political sphere."[37] What Sunstein advocated instead was "efforts to redress economic inequalities" or efforts "to ensure that they do not translate into political equalities."[38] Many have insisted that curbing speech through campaign finance restrictions is not the only option. Offering free airtime to candidates as a means of leveling the playing field is a common argument, but this too is a decision to put equality over free speech - only this time it is the broadcasters' freedom of expression that is being arguably undermined rather than campaign contributors.[39] Inherent in all these arguments is another balancing of values: putting the collective good above individual autonomy.[40] This too was an element in the realists' contractual arguments, which placed justice for the common man above wholesale autonomy for the powerful entities capable of coercion. Confronting the Monster: Strands of Recent Realism Almost a quarter of a century has passed since Buckley was decided, and the need to reform the financing of political campaigns seems even more dire. Strangely enough, the Nixon v. Shrink decision handed down in January specifically reviewed one facet of Buckley - the $1000 contribution cap for individuals - and upheld its constitutionality despite nearly 25 years of inflation. On its face, this ruling appears to prove that neither time nor the appointment of seven new justices has made a dent in the Buckley edifice. Campaign finance reform proponents are cheered that the portion of Buckley being upheld is the one that allows restrictions, but the fact is that Buckley in its entirety is still the law of the land. Beneath the surface of the ruling itself, however - and other rulings in the past decade - are clear signs of turmoil. The Court continues to render judgments on campaign finance issues with Buckley rationales and First Amendment tests fully intact. But its resolve may be crumbling. This section will examine these recent decisions in terms of legal realist principles in an attempt to determine whether there are any signs that the Court will follow the same path taken by the Lochner Court nearly a century ago. Judicial Activism One of the key similarities that scholars have pointed to in Lochner and Buckley is the fairly aggressive nature of respective Courts in their decision to block reform passed by a legislative body. Moreover, both decisions were essentially tips of the same iceberg in terms of a larger trend of judicial activism. Lochner was decided in 1905, its practical legacy was found in the body of 1930s Supreme Court decisions that repeatedly overturned New Deal legislation. Similarly, Buckley is considered the watershed case because it was the first case that reviewed the contribution and expenditure limitations of the still-new FECA. But it has been the subsequent decisions - all based on Buckley, of course - that have illustrated the current Court's recalcitrance regarding attempts by various states and the Federal Election Commission to reform the campaign finance system. Ultimately, about 25 years after Lochner, the Court balance shifted, and the new majority - helping the Court narrowly avoid implementation of Roosevelt's court-packing scheme - began upholding the New Deal legislation that sought to redress the imbalances in the economic marketplace. The Buckley Court has also had time to be transformed by the passage of time and appointment of new justices. Indeed, Justices Rehnquist and Stevens are the only members who were on the Court during both Buckley and Nixon - and Stevens actually took no part in the former. Thus, it would seem quite feasible for a different composition of justices to distance themselves from Buckley and retreat from a fairly high level of judicial activism in the realm of campaign finance reform. Has this happened? Again, based simply on the rulings, it has not. But a closer look reveals at least some sense of change. In the 1996 case, Colorado Republican Federal Campaign Committee v. FEC, Justices Stevens and Ginsburg dissented, arguing that political party expenditures on behalf of candidates were essentially not expenditures at all, but contributions. They also argued in favor of judicial restraint. "Congress surely has both wisdom and experience in these matters that is far superior to ours," Stevens wrote. "I would therefore accord special deference to its judgment on questions related to the extent and nature of limits on campaign spending." The same position was articulated in Nixon, this time by Justices Breyer and Ginsburg. Breyer wrote the concurring opinion signed by the two justices, and agreed that "the legislature understands the problem - the threat to electoral integrity, the need for democratization - better than do we."[41] In Nixon, Justice Kennedy, from a completely different vantage point, encouraged his colleagues to abandon the "artificial" structure the Court had set up with Buckley and let Congress or state legislatures start over, potentially restricting even expenditures as well. Thus, in the last two cases, four of the nine justices have seriously challenged their own level of activism with regard to campaign finance. All that is needed is one more, perhaps, for another "switch in time" such as the one in the 1930s that "saved" the 9-member composition of the Court. Regulating the Free Market Of course, the only thing that triggers the Supreme Court's activism in the first place is the danger of unconstitutionality based on the guarantees of the First Amendment. The First Amendment is, in turn, triggered when a state action restricts expression that should be free to circulate in the marketplace of ideas. Apart from a rather long list of exceptions, the marketplace of ideas should be self-regulating, free of government interference. The legal realists once argued that the economic marketplace was not free from state influence in the first place, that it was deceptive to ignore the broader systemic traits of the marketplace that were essentially created by law. In the recent campaign finance cases, the government's right to regulate the marketplace has already been established, although the Court's three staunchest conservatives, Justices Thomas and Scalia would prefer a virtually unrestricted marketplace. In general, however, this realm is one that poses a much smaller hurdle than did that of the economic marketplace for the legal realists. And indeed, the Court did consider this notion in terms of corporate participation in the 1990 decision, Austin v. Michigan Chamber of Commerce. In Austin, the Court upheld the ban on direct expenditures made by corporations for two reasons: 1) as legal entities, they receive certain privileges (tax, etc.) from the government in order to 2) amass large amounts of wealth.[42] This argument is consistent with the legal realist approach in that it acknowledges the role of government in creating the marketplace to begin with, and treats corporations as unique entities with accompanying entitlements and restrictions. Indeed, a realist critique might return to Scale's corporate personification and insist that corporations, which cannot even cast a ballot, likewise have no clear place in related electoral activities. The First-Amendment Value of Money And yet, thus far, it is assumed that even corporate "expression" warrants First Amendment protection. It has also been assumed that money is speech, and this assumption has proven to be fairly contentious in recent years. In Colorado Republican Committee, Justices Stevens and Ginsburg recalled Justice White's words in his Buckley concurrence/dissent. Money, White wrote, "is not always equivalent to or used for speech, even in the context of political campaigns."[43] In Nixon, Justices Breyer and Ginsburg went a step further, arguing that money is not speech; it merely enables speech. And Justice Stevens in his Nixon concurrence went the farthest of all and refuted the connection altogether. "I make one simple point," Stevens wrote. "Money is property; it is not speech." It is a simple point, certainly, but its implications are enormous: "These property rights," Stevens wrote, "are not entitled to the same protection as the right to say what one pleases." The question of whether and to what degree supporting a candidate with one's own capital constitutes expression is one of the two most problematic facets of the Court's handling of campaign finance. For it is here that its members have tangled themselves in the web of formalist tests and standards, beginning with the Buckley differentiation between contributions and expenditures. Restrictions on contributions, the Court decided in 1976, are certainly expressive but do not warrant the highest level of First Amendment protection because they pose the greatest threat, real or perceived, of engendering quid pro quo corruption, money traded for political favors. Contributions, however, could be considered speech to some degree, and if this is the case, what level of scrutiny do contribution restrictions warrant? Decades later, the Court still isn't quite sure. "Precision about the relative rigor of the standard to review contribution limits was not a pretense of the Buckley per curium opinion," Justice Souter admitted, writing the majority opinion for Nixon. "To be sure, in addressing the speech claim, we explicitly rejected both O'Brien intermediate scrutiny for communicative action ... and the similar standard applicable to merely time, place, and manner restrictions."[44] Instead of adopting either of these forms of intermediate scrutiny, indeed, the Buckley court, Souter wrote, "referred generally to 'the exacting scrutiny required by the First Amendment'"[45] and noted that "'the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office,'"[46] In other words, for all the "exacting" scrutiny the Buckley court spoke of, it left its successors with very little in the ways of exact instructions with which to review later contribution restrictions. Moreover, this is only one half of the equation. Expenditures, which were afforded higher protection by the Buckley Court, are being called into question now, surprisingly, by even Justice Kennedy, who noted in Nixon the possibility that Congress might restrict them at some point as well. Because they were granted such high speech protection, however, the Court at least knows what level of scrutiny (strict) should be applied to expenditure restrictions. After the 1986 and 1990 cases, FEC v. Massachusetts Citizens for Life and Austin v. Michigan Chamber of Commerce,[47] some believed the contribution-expenditure distinction had been killed because it seemed that the Court incorporated "the distorting effects of concentrated wealth on electoral debate," into its definition of corruption, and admitted in dicta that curbing expenditures lessened those distorting effects as well, effectively collapsing the distinction between expenditures and contributions.[48] But there was little sign that the Court remembered it had made this realist leap from its more real-world definition of corruption to the fact that this definition was an indictment of expenditures as well as contributions. In sum, then, some of the Court's members are currently unsure of whether or not campaign finance implicates the First Amendment in the first place. Those who feel it does are not sure what level of scrutiny to apply to contribution restrictions, but maintain resolutely that it is almost certainly a different level of scrutiny than what is required for expenditure restrictions. And ultimately, the distinction between these two forms of campaign finance is a shaky one at best, in part, now, because both seem to implicate a broader understanding of corruption acknowledged in their more recent cases. Corruption: Definitions & Evidence The notion of corruption is the second most problematic aspect of the Buckley legacy left to today's Court.[49] It has seemed since the Austin case, however, that the Court was indeed taking a more realist route by admitting the broader realities of "corruption" which, again, has been the only government interest recognized by the Court as a viable one to justify restrictions on contributions and expenditures. The concept is still, in Nixon, embedded within a formalist First Amendment analysis, but it at least came a step closer to the systemic problems in current campaign finance law in the Austin case. It was here that the Court upheld a Michigan statute that prohibited corporations from using general funds to support candidates in state elections via independent expenditures and deemed the non-profit chamber of commerce to be a corporation by virtue of its members' corporate nature. A number of scholars heralded the dawn of a new age.[50] In addition to its welcome skepticism regarding the inherent nature of the chamber, the Court appeared to provide a new definition of corruption, which demonstrated its willingness to reshape Buckley. Corruption now encompassed "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." And despite the majority opinion's defensive protests to the contrary,[51] this "new" corruption has come several steps closer to recognizing the viability of a more egalitarian marketplace of ideas advocated by scholars for years. Recognizing that a chamber of commerce could be used by its corporate members through which to funnel corporate wealth, the Austin majority ordered the Chamber to set up a segregated fund rather than use that wealth, "amassed in the economic marketplace" to obtain "an unfair advantage in the political marketplace."[52] This cannot be as "Orwellian" as Justice Scalia claimed in his dissenting opinion,[53] which recalled arguments from 60 years past: This decision, he argued, meant "the corporation as a corporation is prohibited from speaking.... The equivalent . . . would be to prohibit John D. Rockefeller from making political endorsements, but to permit him to form an association to which others (though not he himself) can contribute for the purpose of making political endorsements."[54] In deliberately anthropomorphizing the corporation, Scalia did as the Court had done in the early twentieth century, "dress[ing] huge corporations in the clothes of simple farmers and merchants and thus [making] attempts to regulate them appear as attacks on liberty and the home." This critique of the realist-era's Court, articulated by Thurmond Arnold, argued that, "[s]o long as men instinctively thought of these great organizations as individuals, the emotional analogies of home and freedom and all the other trappings of "rugged individualism" became their most potent protection.[55] On the other hand, the Court's decision to single out corporations was admittedly problematic. How far can justice go, after all, if the Nelson Rockefellers of America can do what corporations cannot? Of course, the current Court has spent less time considering notions like this than it has spent cracking down on the FEC and states which try to pass campaign finance legislation and enforce current laws. The concept of corruption, again, has been key and although it has not effected a progressive, legal realist outcome, it has certainly constituted a legal realist approach. The Court has, in campaign finance cases - as it has in other realms of law[56] - increasingly demanded proof from the government that corruption indeed exists. Offering the justification of curbing corruption in the electoral process is not enough. In Colorado, for example, the Court noted the absence of "evidence or legislative findings" that suggested "any special corruption problem in respect to political parties' independent expenditures."[57] This has been a common and heavily criticized trend, as evidence of corruption would justify not just government restrictions but criminal prosecution.[58] Ironically, the introduction of empirical evidence into law was a legal realist conception and, like other realist conventions, it has clearly made its way into Supreme Court jurisprudence generally. However here, it is being used to raise the standard for change - for campaign finance reform - to a ridiculously high level. In Nixon, however, the Court actually overturned the Eighth Circuit's ruling against the Missouri contribution cap, saying the appeals court's insistence on empirical evidence was too strict.[59] Indeed, the Court noted, the fact that Missouri's citizens had earlier passed an initiative with even stricter restrictions was evidence enough that the citizens perceived corruption. This assessment alone is an encouraging sign that the tides may change in the future;[60] however, once again, it needs to be noted that the new penchant for empirical evidence is still inextricably bound to the Buckley edifice, which was a ruling based on intuitive analysis alone. Escaping the Leviathan The path taken by the Court in recent campaign finance cases has undoubtedly reflected an increasing willingness to see the law change - either by its own hand or, preferably, by the hand of Congress and state legislatures. And yet, the most striking trait in these decisions has been the Court's struggle to reconcile the reality of a skewed marketplace of ideas in terms of the electoral process and its need to uphold its formal First Amendment jurisprudence and deference to an almost universally despised precedent. It does indeed face a quandary similar in nature to the Court of the 1930s. As was true in that era, there have been many scholars who have labored to provide a coherent means for the Court to escape Buckley. Moreover, various members of the Court have pulled in strands of legal realist methods and principles in their own attempt to escape. Brought to the judicial table have been internal challenges to the Court's level of activism in this area, to its power or obligation to intervene in the traditional free market, to the most fundamental question of whether the First Amendment should come into play at all in campaign finance, and, if so, how the level of scrutiny and government interest should be construed. It is a hodgepodge of formalist and realist analysis. It is, as Justice Kennedy writes in Nixon, "a misshapen system, one which distorts the meaning of speech." One question, then, is whether the Court is likely to continue to feeding this beast that is hated by those who would undo all campaign finance restrictions and those who would tighten the reins - and the loopholes. Another question is whether the Court will finally decide which path it desires, the formalist or realist, or whether it will likewise continue to with great trepidation, small questions of form, and narrowly drafted rulings. Unfortunately, it seems likely that the Court will choose to continue wringing its hands and wait for Congress to attempt FECA-sized campaign finance reform once again. From a realist standpoint, however, waiting may still be a viable decision, particularly if the Court is truly unable to even broach the question many scholars have asked repeatedly in the last 24 years. Which is the higher value? Speech (assuming it is) or equality? It is obvious that the Court will never explicitly choose the latter. In this way, legal realism - which, historically progressive, would privilege equality over speech - will never fully pervade this realm of law. One thing is very clear, however. The strongest arguments being articulated by the Supreme Court justices are coming from the dissents and concurrences, regardless of which side they fall on, whereas the majority and plurality opinions stay narrow, tentative, and defensive. If nothing else, this alone has sounded the death knell of Buckley. What is unfortunate is that the Court seems unable to slay this beast in a fresh and incisive way. They are simply letting it die a slow, melancholy death. [1] 424 U. S. 1 (1976). [2] At issue was the question of whether the Buckley serves as the "authority for state limits on contributions to state political candidates and whether the federal limits approved in Buckley, with or without adjustment for inflation, define the scope of permissible state limitations today." [3] Federal Election Commission v. Massachusetts Citizens for Life (MCFL), 107 U.S. 616 (1986); Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996). [4] See in particular: Richard Delgado, First Amendment Formalism is Giving Way to First Amendment Legal Realism, 29 Harv. C.R.-C.L. L. Rev. 169 (1994); J. M. Balkin, Frontiers of Legal Thought in the New First Amendment: Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, Duke L. Journal 375 (1990); Mark Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781 (1983); Tona Trollinger, Reconceptualizing the Free Speech Clause: From a Refuse of Dualism to the Reason of Holism, 3 Geo. Mason Ind. L. Rev. 137, (1994); David Yassky, Eras of the First Amendment, 91 Colum. L. Rev. 1847. [5] Jerome Frank, Law and the Modern Mind New York: Coward-McCann, Inc.. 1935, 10. [6] To make the legal realist movement seem cohesive enough for a "founding" is perhaps an oversimplification. It "expressed more an intellectual mood than a clear body of tenets, more a set of sometimes contradictory tendencies than a rigorous set of methodologies or propositions about legal theories." Morton J. Horwitz, The Transformation of American Law: 1870-1960 - The Crisis of Legal Orthodoxy. New York, Oxford: Oxford University Press, 1992, 169. However, history has solidified some of these tendencies enough to warrant applying them to other arenas without committing a serious historical fallacy. [7] Id., at 187. [8] Id., at 193. See also Gary J. Aichele, Legal Realism and Twentieth-Century American Jurisprudence. New York: Garland Publishing, Inc., 1990, at 73. [9] Thurmond W. Arnold, The Folklore of Capitalism, New Haven: Yale University Press, 1937, at 338. [10] Karl Llewellyn, The Bramble Bush, 2d edition (1951), 8. Cited in Note, 'Round and 'Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95 Harv. L. Rev. 1669, 1672 (1982). [11] Karl N. Lewellyn, A Realistic Jurisprudence - The Next Step, 30 Colum. L. Rev. 431, 464 (1930). [12] Arnold, at 77. [13] Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 849 (1935). [14] Bramble Bush, 1674. [15] Lochner v. New York, 198 U.S. 45 (1905). [16] Arnold, 77. [17] Edwin N. Garlan, Legal Realism and Justice, (New York: Columbia University Press) 1941, 125. [18] Steven Winter argues: "The new paradigm assimilated the legal realists' preference for legislative freedom and administrative decisionmaking, as well as a bastardized, normalized version of legal realism for the courts in the banal form of balancing tests and policy analysis." Steven L. Winter, Indeterminacy and Incommensurability in Constitutional Law, 78 Calif. L. Rev. 1443, 1465 (1990). Critical Legal Studies has embraced the critical approach of legal realism while rejecting its constructive program. "Rejecting a legacy of social engineering and liberal reform, the critical legal scholars . . . cannot link their critique to discrete doctrinal change." Bramble Bush, 1682. See also Mark Tushnet, CLS: An Introduction to Its Origins and Underpinnings, 36 J. Legal Educ. 505, 507 (1986). Fischl, "Some Realism About Critical Legal Studies," 41 U. Miami L. Rev. 505, 522 (1987); Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 504 (1988). [19] Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. [20] 424 U.S. 1 (1976). [21] See in particular, Jeffrey M. Blum, The Divisible First Amendment: A Critical Functionalist Approach to Freedom of Speech and Electoral Campaign Spending, 58 N.Y.U.L. Rev. 1273 (1983). CITE MORE ARTICLES HERE. [22] Several scholars have made the connection between these two cases: See Sunstein, 1397; John Rawls, Political Liberalism, 362-63 (1993); David Cole, First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance, 9 Yale L. & Policy Rev. 236, 271 (1991). [23] Buckley used the definition of corruption from Federal Election Commission v. National Conservative Political Action Committee: "Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors." 470 U.S. at 497. [24] 424 U.S. 1, at 26-27. [25] Id., 48-49. [26] David A. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 Colum. L. Rev. 1369, 1389. [27] Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1387 (1984). Cited in Michael Kent Curtis, Critics of "Free Speech" and the Uses of the Past, 12 Constitutional Commentary 29, 61 (1995). [28] Ashdown, Gerald G. Controlling Campaign Spending and the 'New Corruption': Waiting for the Court, 44 Vanderbilt L. Rev. 768 (1991). Ashdown argued that fundraising for nonwealthy candidates was made more difficult because the regulated contributions were their bread and butter, while the independent expenditures applied more commonly to wealthy individuals or PACs, the latter of which usually favored the advantaged - or incumbent - candidate to begin with. [29] Delgado, at 171. [30] E.g., the FEC reported in 1982 that candidates who spend more than twice as much as their opponents have a 93 percent chance of election. Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality? 82 Colum. L. Rev. 609, 622 (1982). [31] 424 U.S. 1, at 49, quoting New York Times v. Sullivan, supra, at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945) and Roth v. United States, 354 U.S. at 484. [32] Cass R. Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390, at 1397-1398. [33] Id., at 1398. [34] See in particular Blum, The Divisible First Amendment, 1277 ; Balkin, Realism About Pluralism, 384. [35] Tona Trollinger, Reconceptualizing the Free Speech Clause: From a Refuse of Dualism to the Reason of Holism, 3 Geo. Mason Ind. L. Rev. 137, 144, (1994). [36] "[T]he principle of equal liberty and collective right facilitates underlying first amendment ideals better than the libertarian principle of maximum feasible individual liberty." Blum, 1280. [37] Sunstein, at 1393. [38] Cass R. Sunstein, The Partial Constitution (1993), 84. [39] See generally, Jeffrey A. Levinson, An Informed Electorate: Requiring Broadcasters to Provide Free Airtime to Candidates for Public Office, 72 Boston Univ. L. Rev. 143, (1992); [40] See Cass R. Sunstein, Preferences and Politics, 20 Phil. & Public Affairs 3, 28 (1991); "The traditional approach to the free speech principle focuses on "the protection of autonomy." And "the key to fulfilling the ultimate purposes of the first amendment is not autonomy . . . but rather the actual effect" of speech." Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1408-11 (1986); Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People, 75 (1960). [41] Breyer added that the 24-year-old contribution cap, however, did seem dangerously low, but conceded that, in the absence of evidence that it was indeed too low, the Court should make no move to change it. [42] 110 U.S. 1391 (1990). [43] 424 U.S., at 263 (opinion concurring in part and dissenting in part). [44] See United States v. O'Brien, 391 U. S. 367 (1968); see Adderley v. Florida, 385 U. S. 39 (1966); Cox v. Louisiana, 379 U. S. 536 (1965); Kovacs v. Cooper, 336 U. S. 77 (1949). [45] Buckley v. Valeo, 424 U. S., at 16 [46] Id., at 15 (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)). [47] 107 U.S. 616 (1986) and 110 U.S. 1391 (1990). [48] Cole, at 264. [49] See also Federal Election Comm'n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) ("Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns"); Federal Election Comm'n v. National Right to Work Comm., 459 U. S. 197, 208 (1982) (noting that Government interests in preventing corruption or the appearance of corruption "directly implicate `the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process' " (quoting United States v. Automobile Workers, 352 U. S. 567, 570 (1957)); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 788, n. 26 (1978) ("The importance of the governmental interest in preventing [corruption] has never been doubted"). [50] e.g., Samuel M. Taylor, Austin v. Michigan Chamber of Commerce: Addressing a "New Corruption" in Campaign Finance Reform, 69 N.C.L. Rev. 1060 (1991); Prescott M. Lassman, Breaching the Fortress Walls: Corporate Political Speech and Austin v. Michigan Chamber of Commerce, 78 Va. L. Rev. 759 (1992); Jill E. Fisch, Frankenstein's Monster Hits the Campaign Trail: An Approach to Regulation of Corporate Political Expenditures, 32 William and Mary L. Rev. 587 (1991). Of course, a fair amount were not happy with the card dealt to corporations: e.g., Michael Schofield, Muzzling Corporations: The Court Givith and the Court Taketh Away a Corporation's "Fundamental Right" to Free Political Speech in Austin v. Michigan Chamber of Commerce, 52 La. L. Rev. 253 (1991). [51] "The act does not attempt 'to equalize the relative influence of speakers on elections;' rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations." Per curium opinion in Austin, at 660. In Nixon, the Court noted again its broader conception of corruption: "In speaking of "improper influence" and "opportunities for abuse" in addition to "quid pro quo arrangements," we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. These were the obvious points behind our recognition that the Congress could constitutionally address the power of money "to influence governmental action" in ways less "blatant and specific" than bribery. Buckley v. Valeo, 424 U. S., at 28.4 The evidence before the Court of Appeals described public revelations by the parties in question more than sufficient to show why voters would tend to identify a big donation with a corrupt purpose." [52] Per curium opinion in Austin, at 657, quoting MCFL 479 U.S., at 257. [53] Justice Scalia, dissenting opinion in Austin, at 679. [54] Scalia, dissenting opinion in Austin, at 681 supra note. [55] Arnold, at 190. [56] In communication law, it has incorporated this approach into advertising cases specifically, requiring that the government show proof that its restrictions forward its interests when restricting advertising for disfavored produccts. [57] 518 U.S. 604, at 610. [58] See David Schultz, Proving Political Corruption: Documenting the Evidence Required to Sustain Campaign Finance Reform Laws, 18 Rev. Litig 86 (1999); Robert F. Bauer, The Demise of Reform: Buckley v. Valeo, the Courts, and the "Corruption Rationale," 10 Stan. L. & Pl'y Rev 11 (1998). [59] "[T]he Buckley Court noted the perfidy that had been uncovered in federal campaign financing in 1972," the Eighth Circuit Appeals Court had conceded. "But we are unwilling to extrapolate from those examples that in Missouri at this time there is corruption or a perception of corruption from `large' campaign contributions, without some evidence that such problems really exist." 161 F. 3d, at 521-522 (citations omitted). [60] The Court denies a shift or contradiction in its Nixon and Colorado rulings, however, once again saying it differentiated along the lines drawn between contributions and expenditures.