Nixon v. Shrink Missouri Government PAC
Nixon v. Shrink Missouri Government PAC
Opinion of the Court
delivered the opinion of the Court.
The principal issues in this case are whether Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), is authority for state limits on contributions to state political candidates and
I
In 1994, the Legislature of Missouri enacted Senate Bill 650 to restrict the permissible amounts of contributions to candidates for state office. Mo. Rev. Stat. § 130.032 (1994). Before the statute became effective, however, Missouri voters approved a ballot initiative with even stricter contribution limits, effective immediately. The United States Court of Appeals for the Eighth Circuit then held the initiative’s contribution limits unconstitutional under the First Amendment, Carver v. Nixon, 72 F. 3d 633, 645 (CA8 1995), cert. denied, 518 U. S. 1033 (1996), with the upshot that the previously dormant 1994 statute took effect. Shrink Missouri Government PAC v. Adams, 161 F. 3d 519, 520 (CA8 1998).
As amended in 1997, that statute imposes contribution limits ranging from $250 to $1,000, depending on specified state office or size of constituency. See Mo. Rev. Stat. § 130.032.1 (1998 Cum. Supp.); 161 F. 3d, at 520. The particular provision challenged here reads that
“[t]o elect an individual to the office of governor, lieutenant governor, secretary of state, state treasurer, state auditor or attorney general, [[t]he amount of contributions made by or accepted from any person other than the candidate in any one election shall not exceed] one thousand dollars.” Mo. Rev. Stat. §130.032.1(1) (1998 Cum. Supp.).
The statutory dollar amounts are baselines for an adjustment each even-numbered year, to be made “by multiplying the base year amount by the cumulative consumer price
Respondents Shrink Missouri Government PAC, a political action committee, and Zev David Fredman, a candidate for the 1998 Republican nomination for state auditor, sought to enjoin enforcement of the contribution statute
On cross-motions for summary judgment, the District Court sustained the statute. Id., at 742. Applying Buckley v. Valeo, supra, the court found adequate support for the law in the proposition that large contributions raise suspicions of influence peddling tending to undermine citizens’ confidence “in the integrity of... government.” 5 F. Supp. 2d, at 738. The District Court rejected respondents’ eon-
The Court of Appeals for the Eighth Circuit nonetheless enjoined enforcement of the law pending appeal, 151 F. 3d 763, 765 (1998), and ultimately reversed the District Court, 161 F. 3d, at 520. Finding that Buckley had “ ‘articulated and applied a strict scrutiny standard of review/” the Court of Appeals held that Missouri was bound to demonstrate “that it has a compelling interest and that the contribution limits at issue are narrowly drawn to serve that interest.” 161 F. 3d, at 521 (quoting Carver v. Nixon, supra, at 637). The appeals court treated Missouri’s claim of a compelling interest “in avoiding the corruption or the perception of corruption brought about when candidates for elective office accept large campaign contributions” as insufficient by itself to satisfy strict scrutiny. 161 F. 3d, at 521-522. Relying on Circuit precedent, see Russell v. Burris, 146 F. 3d 563, 568 (CA8), cert. denied, 525 U. S. 1001 (1998); Carver v. Nixon, supra, at 638, the Court of Appeals required
“some demonstrable evidence that there were genuine problems that resulted from contributions in amounts greater than the limits in place....
“[T]he Buckley Court noted the perfidy that had been uncovered in federal campaign financing in 1972. . . . 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).
The court thought that the only evidence presented by the State, an affidavit from the eoehairman of the state legislature’s Interim Joint Committee on Campaign Finance Reform when the statute was passed, was inadequate to raise
Given the large number of States that limit political contributions, see generally Federal Election Commission, E. Feigenbaum & J. Palmer, Campaign Finance Law 98 (1998), we granted certiorari to review the congruence of the Eighth Circuit’s decision with Buckley. 525 U. S. 1121 (1999). We reverse.
II
The matters raised in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), included claims that federal campaign finance legislation infringed speech and association protections of the First Amendment and the equal protection guarantee of the Fifth. The Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, limited (and still limits) contributions by individuals to any single candidate for federal office to $1,000 per election. 18 U. S. C. §§ 608(b)(1), (3) (1970 ed., Supp. IV); Buckley v. Valeo, supra, at 13. Until Buckley struck it down, the law also placed a $1,000 annual ceiling on independent expenditures linked to specific candidates. 18 U.S.C. § 608(e) (1970 ed., Supp. IV); 424 U.S., at 13. We found violations of the First Amendment in the expenditure regulations, but held the contribution restrictions constitutional. Buckley v. Valeo, supra.
Precision about the relative rigor of the standard to review contribution limits was not a pretense of the Buckley per curiam opinion. To be sure, in addressing the speech claim, we explicitly rejected both O’Brien intermediate scrutiny for communicative action, see United States v. O’Brien, 391 U. S. 367 (1968), and the similar standard applicable to merely time, place, and manner restrictions, 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). In distinguishing these tests, the discussion referred generally to “the exacting scrutiny required by the First Amendment,” Buckley v. Valeo, 424 U. S., at 16, and added that “ ‘the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political- office/ ” id., at 15 (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)).
We then, however, drew a line between expenditures and contributions, treating expenditure restrictions as direct restraints on speech, 424 U. S., at 19, which nonetheless suffered little direct effect from contribution limits:
“[A] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate. A limitation on the amount of money a person may give to a candidate or*387 campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues.” Id., at 20-21 (footnote omitted).
We thus said, in effect, that limiting contributions left communication significantly unimpaired.
We flagged a similar difference between expenditure and contribution limitations in their impacts on the association right. While an expenditure limit “precludes most associations from effectively amplifying the voice of their adherents,” id., at 22 (thus interfering with the freedom of the adherents as well as the association, ibid.), the contribution limits “leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates,” ibid.; see also id., at 28. While we did not then say in so many words that different standards might govern expenditure and contribution limits affecting assoeiational rights, we have since then said so explicitly in Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 259-260 (1986): “We. have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending.” It has, in any event, been plain ever since Buckley that contribution limits would more readily clear the hurdles before them. Cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 610 (1996) (opinion of Breyer, J.) (noting that in campaign finance ease law, “[t]he provisions that the Court found constitutional mostly imposed contribution limits” (emphasis in original)). Thus, under Buckley’s standard of scrutiny, a contribution limit involving “significant interference” with assoeiational rights, 424 U. S., at 25 (internal quotation marks omitted), could survive if the Government demonstrated that contribution regulation was “closely drawn”
While we did not attempt to parse distinctions between the speech and association standards of scrutiny for contribution limits, we did make it clear that those restrictions bore more heavily on the associational right than on freedom to speak. Id., at 24-25. We consequently proceeded on the understanding that a contribution limitation surviving a claim of associational abridgment would survive a speech challenge as well, and we held the standard satisfied by the contribution limits under review.
“[T]he prevention of corruption and the appearance of corruption” was found to be a “constitutionally sufficient justification,” id., at 25-26:
“To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined....
“Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities, for abuse inherent in a regime of large individual financial contributions.... Congress could legiti*389 mately conclude that the avoidance of the appearance of improper influence ‘is also critical ... if confidence in the system of representative Government is not to be eroded to a disastrous extent.’ ” Id., at 26-27 (quoting Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 565 (1973)).
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”).
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 eould 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.
In defending its own statute, Missouri espouses those same interests of preventing corruption and the appearance of it that flows from munificent campaign contributions. Even without the authority of Buckley, there would be no serious question about the legitimacy of the interests claimed, which, after all, underlie bribery and antigratuity statutes. While neither law nor morals equate all political contributions, without more, with bribes, we spoke in Buckley of the perception of corruption “inherent in a regime of large individual financial contributions” to candidates for public office, id., at 27, as a source of concern “almost equal” to quid yro quo improbity, ibid. The public interest in countering that perception was, indeed, the entire answer to the overbreadth claim raised in the Buckley ease. Id., at 30. This made perfect sense. Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance. Democracy works “only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption.” United States v. Mississippi Valley Generating Co., 364 U. S. 520, 562 (1961).
Although respondents neither challenge the legitimacy of these objectives nor call for any reconsideration of Buckley, they take the State to task, as the Court of Appeals did, for failing to justify the invocation of those interests with empirical evidence of actually corrupt practices or of a per
The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised. Buckley demonstrates that the dangers of large, corrupt contributions and the suspicion that large contributions are corrupt are neither novel nor implausible. The opinion noted that “the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem [of corruption] is not an. illusory one.” 424 U. S., at 27, and n. 28. Although we did not ourselves marshal the evidence in support of the congressional concern, we referred to “a number of the abuses” detailed in the Court of Appeals’s decision, ibid., which described how corporations, well-financed interest groups, and rich individuals had made large contributions, some of which were illegal under existing law, others of which reached at least the verge of bribery. See Buckley v. Valeo, 519 F. 2d 821, 839-840, and nn. 36-38 (CADC 1975). 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.
While Buckley's evidentiary showing exemplifies a sufficient justification for contribution limits, it does not speak to what may be necessary as a minimum.
In any event, this case does not present a close call requiring further definition of whatever the State’s evidentiary obligation may be. While the record does not show that the Missouri Legislature relied on the evidence and findings accepted in Buckley,
There might, of course, be need for a more extensive evi-dentiary documentation if respondents had made any showing of their own to cast doubt on the apparent implications of Buckley’s evidence and the record here, but the closest respondents come to challenging these conclusions is their invocation of academic studies said to indicate that large contributions to public officials or candidates do not actually result in changes in candidates’ positions. Brief for Respondents Shrink Missouri Government PAC et al. 41; Smith, Money Talks: Speech, Corruption, Equality, and Campaign Finance, 86 Geo. L. J. 45, 58 (1997); Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 Yale L. J. 1049, 1067-1068 (1995). Other studies, however, point the other way. Reply Brief for Respondent Bray 4-5; F. Sorauf, Inside Campaign Finance 169 (1992); Hall & Wayman, Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees, 84 Am. Pol. Sci. Rev. 797 (1990); D. Magleby & C. Nelson, The Money Chase 78 (1990). Given the conflict among these publica
C
Nor do we see any support for respondents’ various arguments that in spite of their striking resemblance to the limitations sustained in Buckley, those in Missouri are so different in kind as to raise essentially a new issue about the adequacy of the Missouri statute’s tailoring to serve its purposes.
These conclusions of the District Court and the supporting evidence also suffice to answer respondents’ variant claim that the Missouri limits today differ in kind from Buckley's owing to inflation since 1976. Respondents seem to assume that Buckley set a minimum constitutional threshold for contribution limits, which in dollars adjusted for loss of purchasing power are now well above the lines drawn by Missouri. But this assumption is a fundamental misunderstanding of what we held.
D
The dissenters in this case think our reasoning evades the real issue. Justice Thomas chides us for “hiding behind” Buckley, post, at 422, and Justice Kennedy faults us for seeing this case as “a routine application of our analysis” in Buckley instead of facing up to what he describes as the consequences of Buckley, post, at 405. Each dissenter would overrule Buckley and thinks we should do the same.
The answer is that we are supposed to decide this case. Shrink and Fredman did not request that Buckley be overruled; the furthest reach of their arguments about the law was that subsequent decisions already on the books had enhanced the State’s burden of justification beyond what Buckley required, a proposition we have rejected as mistaken.
I — l h-i
There is no reason in logic or evidence to doubt the sufficiency of Buckley to govern this case in support of the Mis
It is so ordered.
Respondents sued members of the Missouri Ethics Commission, the Missouri attorney general, and the St. Louis County prosecuting attorney. Shrink Missouri Government PAC v. Adams, 5 F. Supp. 2d 734, 737 (ED Mo. 1998).
Chief Judge Bowman also would have found the law invalid because the contribution limits were severely tailored beyond any need to serve the State’s interest. Comparing the Missouri limits with those considered in Buckley, the Chief Judge said that “[a]fter inflation, limits of $1,075, $525, and $275 cannot compare with the $1,000 limit approved in Buckley twenty-two years ago,” and “can only be regarded as ‘too low to allow meaningful participation in protected political speech and association.’” 161 F. 3d, at 522-523 (quoting Day v. Holahan, 34 F. 3d 1356, 1366 (CA8 1994), cert. denied, 513 U. S. 1127 (1995)). Judge Ross, concurring in the judgment, did not join this portion of Chief Judge Bowman’s opinion. 161 F. 3d, at 523.
Judge Gibson dissented from the panel’s decision. Ibid.
The quoted language addressed the correlative overbreadth challenge. On the point of classifying the standard of scrutiny, compare Roberts v. United States Jaycees, 468 U. S. 609, 623 (1984) (“Infringements on [the right to associate for expressive purposes] may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms”); NAACP v. Button, 371 U. S. 415, 438 (1963) (“The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms”); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460-461 (1958) (“[S]tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny”).
In arguing that the Buckley standard should not be relaxed, respondents Shrink Missouri and Fredman suggest that a candidate like Fredman suffers because contribution limits favor incumbents over challengers. Brief for Respondents Shrink Missouri Government PAG et al. 23-24. This is essentially an equal protection claim, which Buckley squarely
Cf. Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982) (“Nor will we second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared”); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 788, n. 26 (1978); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182, 194-195 (1981) (noting that Buckley held that contribution limits “served the important governmental interests in preventing the corruption or appearance of corruption of the political process that might result if such contributions were not restrained”); Citizens Against Rent Control! Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 296-297 (1981)
Cf. Renton v. Playtime Theatres, Inc., 475 U. S. 41, 51-52 (1986) (“The First Amendment does not require a city, before enacting... an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses”).
Two of respondents’ amici raise the different argument, that contribution limits are insufficiently narrow, in the light of disclosure requirements and bribery laws as less restrictive mechanisms for dealing with quid pro quo threats and apprehensions. Brief for Pacific Legal Foundation et al. as Amici Curiae 23-29. We specifically rejected this notion in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), where we said that antibribery laws “deal with only the most blatant and specific attempts of those with money to influence government action,” and that “Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.” Id., at 28. We understood contribution limits, on the other hand, to “focu[s] precisely on the problem of large campaign contributions — the narrow aspect of political association where the actuality and potential for corruption have been identified — while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.” Ibid. There is no reason to view contribution limits any differently today.
This case does not, however, involve any claim that the Missouri law has restricted access to the ballot in any election other than that for state auditor.
Similarly, data showed that less than 1.5 percent of the contributors to candidates in the 1992 election for Missouri secretary of state made aggregate contributions in excess of $2,000. 5 F. Supp. 2d, at 741; App. 35.
Concurring Opinion
concurring.
Justice Kennedy suggests that the misuse of soft money tolerated by this Court’s misguided decision in Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996), demonstrates the need for a fresh examination of the constitutional issues raised by Congress’ enactment of the Federal Election Campaign Acts of 1971 and 1974 and this Court’s resolution of those issues in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). In response to his call for a new beginning, therefore, I make one simple point. Money is property; it is not speech.
Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.
Our Constitution and our heritage properly protect the individual’s interest in making decisions about the use of his or her own property. Governmental regulation of such decisions can sometimes be viewed either as “deprivations of lib
Reliance on the First Amendment to justify the invalidation of campaign finance regulations is the functional equivalent of the Court’s candid reliance on the doctrine of substantive due process as articulated in the two prevailing opinions in Moore v. East Cleveland. The right to use one’s own money to hire gladiators, or to fund “speech by proxy,” certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to say what one pleases.
Unless, of course, the prohibition entirely forecloses a channel of communication, such as the use of paid petition circulators. See, e. g., Meyer v. Grant, 486 U. S. 414, 424 (1988) ("Colorado’s prohibition of paid petition circulators restricts access to the most effective, fundamental, and .perhaps economical avenue of political discourse, direct one-on-one communication. . . . The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing”).
Concurring Opinion
with whom Justice Ginsburg joins, concurring.
The dissenters accuse the Court of weakening the First Amendment. They believe that failing to adopt a “strict scrutiny” standard “balancefs] away First Amendment freedoms.” Post, at 410 (opinion of Thomas, J.). But the principal dissent oversimplifies the problem faced in the campaign finance context. It takes a difficult constitutional problem and turns it into a lopsided dispute between political expression and government censorship. Únder the cover of this fiction and its accompanying formula, the dissent would make the Court absolute arbiter of a difficult question best left, in the main, to the political branches. I write sepa
If the dissent believes that the Court diminishes the importance of the First Amendment interests before us, it is wrong. The Court’s opinion does not question the constitutional importance of political speech or that its protection lies at the heart of the First Amendment. Nor does it question the need for particularly careful, precise, and independent judicial review where, as here, that protection is at issue. But this is a ease where constitutionally protected interests lie on both sides of the legal equation. For that reason there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words “strict scrutiny.” Nor can we expect that mechanical application of the tests associated with “strict scrutiny” — the tests of “compelling interests” and “least restrictive means” — -will properly resolve the difficult constitutional problem that campaign finance statutes pose. Cf. Kovacs v. Cooper, 336 U. S. 77, 96 (1949) (Frankfurter, J., concurring) (objecting, in the First Amendment context, to “oversimplified formulas”); see also Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 233-234 (1989) (Stevens, J., concurring); Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 188-189 (1979) (Blackmun, J., concurring) (same).
On the one hand, a decision to contribute money to a campaign is a matter of First Amendment concern — not because money is speech (it is not); but because it enables speech. Through contributions the contributor associates himself with the candidate’s cause, helps the candidate communicate a political message with which the contributor agrees, and helps the candidate win by attracting the votes of similarly minded voters. Buckley v. Valeo, 424 U. S. 1, 24-25 (1976) (per curiam). Both political association and political communication are at stake.
In service of these objectives, the statute imposes restrictions of degree. It does not deny the contributor the opportunity to associate with the candidate through a contribution, though it limits a contribution’s size. Nor does it prevent the contributor from using money (alone or with others) to pay for the expression of the same views in other ways. Instead, it permits all supporters to contribute the same amount of money, in an attempt to make the process fairer and more democratic.
Under these circumstances, a presumption against constitutionality is out of place. I recognize that Buckley used
In such circumstances — where a law significantly implicates competing constitutionally protected interests in complex ways — the Court has closely scrutinized the statute’s impact on those interests, but refrained from employing a simple test that effectively presumes unconstitutionality. Rather, it has balanced interests. And in practice that has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute’s salutary effects upon the others (perhaps, but not necessarily, because of the existence of a clearly superior, less restrictive alternative). Where a legislature has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empirical legislative judgments — at least where that deference does not risk such constitutional evils as, say, permitting incumbents to insulate themselves from effective electoral challenge. This approach is that taken in fact by Buckley for contributions, and
Applying this approach to the present ease, I would uphold the statute essentially for the reasons stated by the Court. I agree that the legislature understands the problem — the threat to electoral integrity, the need for democratization— better than do we. We should defer to its political judgment that unlimited spending threatens the integrity of the
The approach I have outlined here is consistent with the approach this Court has taken in many complex First Amendment cases. See supra, at 402-403. The Buckley decision, as well, might be interpreted as embodying sufficient flexibility for the problem at hand. After all, Buckley’s holding seems to leave the political branches broad authority to enact laws regulating contributions that take the form of “soft money.” It held public financing laws constitutional, 424 U. S., at 57, n. 65, 85-109. It says nothing one way or the other about such important proposed reforms as reduced-price media time. And later cases presuppose that the Federal Election Commission has the delegated authority to interpret broad statutory provisions in light of the campaign finance law’s basic purposes, despite disagreements over whether the Commission has exercised that au
But what if I am wrong about Buckley? Suppose Buckley denies the political branches sufficient leeway to enact comprehensive solutions to the problems posed by campaign finance. If so, like Justice Kennedy, I believe the Constitution would require us to reconsider Buckley. With that understanding I join the Court’s opinion.
Dissenting Opinion
with whom Justice Scalia joins, dissenting.
In the process of ratifying Missouri’s sweeping, repression of political speech, the Court today adopts the analytic fallacies of our flawed decision in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). Unfortunately, the Court is not content to merely adhere to erroneous precedent. Under the guise of applying Buckley, the Court proceeds to weaken the already enfeebled constitutional protection that Buckley afforded campaign contributions. In the end, the Court employs a sui generis test to balance away First Amendment freedoms.
Because the Court errs with each step it takes, I dissent. As I indicated in Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 635-644 (1996) (opinion concurring in judgment and dissenting in part), our decision in Buckley was in error, and I would overrule it. I would subject campaign contribution limitations to strict scrutiny, under which Missouri’s contribution limits are patently unconstitutional.
J — 1
I begin with a proposition that ought to be unassailable: Political speech is the primary object of First Amendment
I do not start with these foundational principles because the Court openly disagrees with them — it could not, for they are solidly embedded in our precedents. See, e.g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (“[T]he First Amendment ‘has its Mlest and most urgent application5 to speech uttered during a campaign for political office” (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971))); Brown v. Hartlage, 456 U. S. 45, 53 (1982) (“The free exchange of ideas provides special vitality to the process traditionally at the heart of American constitutional democracy—the political campaign"); Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964) (“[Sjpeech concerning public affairs is ... the essence of self-government”). Instead, I start with them because the Court today abandons them. For nearly half a century, this Court has extended First Amendment protection to a multitude of forms of
II
At bottom, the majority’s refusal to apply strict scrutiny to contribution limits rests upon Buckley1s discounting of the First Amendment interests at stake. The analytic foundation of Buckley, however, was tenuous from the very beginning and has only continued to erode in the intervening years. What remains of Buckley fails to provide an adequate justification for limiting individual contributions to political candidates.
To justify its decision upholding contribution limitations while striking down expenditure limitations, the Court in Buckley explained that expenditure limits “represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech,” 424 U.S., at 19, while contribution limits “entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication,” id., at 20-21 (quoted ante, at 386). In drawing this distinction, the Court in Buckley relied on the premise that contributing to a candidate differs qualitatively from directly spending money. It noted that “[w]hile contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” 424 U. S., at 21. See also California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182, 196 (1981) (plurality opinion) (“[T]he ‘speech by proxy5 that [a contributor] seeks to achieve through its contributions ... is not the sort of political advocacy that this Court in Buckley found entitled to full First Amendment protection”).
But this was a faulty distinction ab initio because it ignored the reality of how speech of all kinds is disseminated:
“Even in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender’s message — for instance, an advertising agency or a television station. To call a contribution ‘speech by proxy5 thus does little to differentiate it from an expenditure. The only possible difference is that contributions involve an extra step in the proxy chain. But again, that is a difference in form, not substance.” Colorado Republican, 518 U. S., at 638-639 (Thomas, J., concurring in judgment and dissenting in part) (citations omitted).
Without the assistance of the speeeh-by-proxy argument, the remainder of Buckley’s rationales founder. Those rationales — that the “quantity of communication by the contributor does not increase perceptibly with the size of his contribution,” Buckley v. Valeo, supra, at 21 (quoted ante, at 386), that “the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate,” 424 U. S., at 21 (quoted ante, at 386), and that “[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support,” 424 U. S., at 21 (quoted ante, at 386)—still rest on the proposition that speech by proxy is not fully protected. These contentions simply ig
The decision of individuals to speak through contributions rather than through independent expenditures is entirely reasonable.
In the end, Buckley's claim that contribution limits “d[o] not in any way infringe the contributor’s freedom to discuss candidates and issues,” 424 U. S., at 21 (quoted ante, at 387), ignores the distinct role of candidate organizations as a means of individual participation in the Nation’s civic dialogue.
B
The Court in Buckley denigrated the speech interests not only of contributors, but also of candidates. Although the Court purported to be concerned about the plight of candidates, it nevertheless proceeded to disregard their interests without justification. The Court did not even attempt to claim that contribution limits do not suppress the speech of political candidates. See 424 U. S., at 18 (“[C]ontribution... limitations impose direct quantity restrictions on political communication and association by ... candidates”); id., at 33 (“[T]he [contribution] limitations may have a significant effect on particular challengers or incumbents”). It could not have, given the reality that donations “mak[e] a significant contribution to freedom of expression by enhancing the
The Court’s flawed and unsupported aggregate approach ignores both the rights and value of individual candidates. The First Amendment “is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” Cohen v. California, 403 U. S. 15, 24 (1971) (emphases added). See also Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (plurality opinion) (“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association”); Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion) (“As this Court has noted in the past, the ‘rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal
In my view, the Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade. Buckley’s ratification of the government’s attempt to wrest this fundamental right from citizens was error.
III
Today, the majority blindly adopts Buckley’s flawed reasoning without so much as pausing to consider the collapse of
After ignoring these shortcomings, the Court proceeds to apply something less — much less — than strict scrutiny. Just how much less the majority never says. The Court in Buckley at least purported to employ a test of “ ‘closest scrutiny.’ ” 424 U. S., at 25 (quoting NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 461 (1958)). (The Court’s words were belied by its actions, however, and it never deployed the test in the fashion that the superlative instructs. See Colorado Republican, 518 U. S., at 640-641, n. 7 (Thomas, J., concurring in judgment and dissenting in part) (noting that Buckley purported to apply strict scrutiny but failed to do so in fact).) The Court today abandons even that pretense and reviews contributions under the sui generis “Buckley’s standard of scrutiny,” ante, at 387, which fails to obscure the Court’s ad hoc balancing away of First Amendment rights. Apart from its endorsement of Buckley’s rejection of the intermediate standards of review used to evaluate expressive conduct and time, place, and manner restrictions, ante, at 386, the Court makes no effort to justify its deviation from the tests we traditionally employ in free speech cases. See Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 774 (1996) (Souter, J., concurring) (“Reviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments
Unfortunately, the majority does not stop with a revision of Buckley's labels. After hiding behind Buckley's discredited reasoning and invoking “Buckley's standard of scrutiny,” ante, at 387, the Court proceeds to significantly extend the holding in that ease. The Court’s substantive departure from Buckley begins with a revision of our compelling-interest jurisprudence. In Buckley, the Court indicated that the only interest that could qualify as “compelling” in this area was the government’s interest in reducing actual and apparent corruption.
Almost a decade after Buckley, we reiterated that “corruption” has a narrow meaning with respect to contribution limitations on individuals:
“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. The hallmark of corruption is the financial quid pro quo: dollars for political favors.” National Conservative Political Action Comm., 470 U. S., at 497.
In that same opinion, we also used “giving official favors” as a synonym for corruption. Id., at 498.
The majority today, by contrast, separates “corruption” from its quid pro quo roots and gives it a new, far-reaching (and speech-suppressing) definition, something like “[t]he perversion of anything from an original state of purity.” 3 Oxford English Dictionary, supra, at 974. See also Webster’s Third New International Dictionary, supra, at 512 (“a departure from what is pure or correct”). And the Court proceeds to define that state of purity, easting aspersions on
In refashioning Buckley, the Court then goes on to weaken the requisite precision in tailoring, while at the same time representing that its fiat “do[es] not relax Buckley’s standard.” Ante, at 390, n. 4. The fact is that the majority rati
The Court also reworks Buckley's aggregate approach to the free speech rights of candidates. It begins on the same track as Buckley, noting that “a showing of one affected individual does not point up a system of suppressed political advocacy that would be unconstitutional under Buckley.” Ante, at 396. See also, e. g., ibid, (claiming that candidates “ ‘are still able to amass impressive campaign war chests’ ”
IV
In light of the importance of political speech to republican government, Missouri’s substantial restriction of speech warrants strict scrutiny, which requires that contribution limits be narrowly tailored to a compelling governmental interest. See Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182, 207 (1999) (Thomas, J., concurring in judgment); Colorado Republican, 518 U. S., at 640-641 (Thomas, J., concurring in judgment and dissenting in part).
In the end, contribution limitations find support only in the proposition that other means will not be as effective at rooting out corruption. But when it comes to a significant infringement on our fundamental liberties, that some undesirable conduct may not be deterred is an insufficient justification to sweep in vast amounts of protected political speech. Our First Amendment precedents have repeatedly stressed this point. For example, in Martin v. City of Struthers, supra, we struck down an ordinance prohibiting door-to-door distribution of handbills. Although we recognized that "burglars frequently pose as canvassers,” id., at 144, we also noted that door-to-door distribution was "useful [to] members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion,” id., at 145. We then struck down the ordinance, observing that the “dangers of distribution can so easily be controlled by traditional legal methods.” Id., at 147. Similarly, in Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988), we struck down a law regulating the fees charged by professional fundraisers. In response to the assertion that citizens would be defrauded in the absence of such a law, we explained that the State had an antifraud law which "we presume[d] that law enforcement officers [we]re ready and able to enforce,” id., at 795, and that the State could constitutionally require fundraisers to disclose certain financial information, ibid. We concluded by acknowledging the obvious consequences of the narrow tailoring requirement: "If this is not the most efficient means of preventing fraud, we reaffirm simply and emphatically that the First Amendment does not permit the State to sacrifice speech for efficiency.” Ibid. See also, e. g., Schneider v. State (Town of Irvington), 308 U. S. 147, 162 (1939) ("There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets”).
V
Because the Court unjustifiably discounts the First Amendment interests of citizens and candidates, and consequently fails to strictly scrutinize the inhibition of political speech and competition, I respectfully dissent.
New York Times Co. v. Sullivan, 376 U. S. 254 (1964); NAACP v. Button, 371 U. S. 415 (1963); Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991) (plurality opinion); Erznoznik v. Jacksonville, 422 U. S. 205 (1975); United States v. Eichman, 496 U. S. 310 (1990); Schacht v. United States, 398 U. S. 58 (1970).
Loper v. New York City Police Dept., 999 F. 2d 699 (CA2 1993); Sandul v. Larion, 119 P. 3d 1250 (CA6 1997); One World One Family Now v. Miami Beach, 175 P. 3d 1282 (CA11 1999); East Hartford Education Assoc. v. Board of Ed. of East Hartford, 562 F. 2d 838 (CA2 1977).
If one were to accept the speech-by-proxy point and consider a contribution a mere symbolic gesture, Buckley’,s auxiliary arguments still falter. The claim that a large contribution receives less protection because it only expresses the "intensity of the contributor’s support for the candidate,” Buckley v. Valeo, 424 U. S. 1, 21 (1976) (per curiam) (quoted ante, at 386), fails under our jurisprudence because we have accorded full First Amendment protection to expressions of intensity. See Cohen v. California, 403 U. S. 15, 25-26 (1971) (protecting the use of an obscenity to stress a point). Equally unavailing is the claim that a contribution warrants less protection because it “does not communicate the underlying basis for the support.” Buckley v. Valeo, supra, at 21 (quoted ante, at 386). We regularly hold that speech is protected when the underlying basis for a position is not given. See, e. g., City of Ladue v. Gilleo, 512 U. S. 43, 46 (1994) (sign reading “For Peace in the Gulf”); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 510-511 (1969) (black armband signifying opposition to Vietnam war). See also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 640 (1996) (Thomas, J., concurring in judgment and dissenting in part) (“Even a pure message of support, unadorned with reasons, is valuable to the democratic process”). Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 569 (1995) (opinion of the Court by Souter, J.) (“[A] narrow, succinctly articulable message is not a condition of constitutional protection”).
Justice Stevens asserts that “[mjoney is property; it is not speech,” ante, at 398 (concurring opinion), and contends that there is no First Amendment right “to hire mercenaries” and “to hire gladiators,” ante, at 399. These propositions are directly contradicted by many of our precedents. For example, in Meyer v. Grant, 486 U. S. 414 (1988) (opinion of the Court by Stevens, J.), this Court confronted a state ban on payments to petition circulators. The District Court upheld the law, finding that the ban on monetary payments did not restrain expression and that the
Even if contributions to a candidate were not the most effective means of speaking — and contribution caps left political speech “significantly unimpaired,” ante, at 387 — an individual’s choice of that mode of expression would still be protected. “The First Amendment protects [individuals’] right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.” Meyer, supra, at 424 (opinion of the Court by Stevens, J.). See also Glickman v. Wileman Brothers & Elliott, Inc., 521 U. S. 457, 488 (1997) (Souter, J., dissenting) (noting a “First Amendment interest in touting [one’s] wares as he sees fit”).
Buckley’s approach to assodational freedom is also unsound. In defense of its decision, the Court in Buckley explained that contribution limits “leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates.” 424 U. S., at 22 (quoted ante, at 387). In essence, the Court accepted contribution limits because alternative channels of association remained open. This justification, however, is peculiar because we have rejected the notion that a law will pass First Amendment muster simply because it leaves open other opportunities. Spence v. Washington, 418 U. S. 405, 411, n. 4 (1974) (per curiam) (Although a prohibition’s effect may be ‘“minuscule and trifling,’” a person “‘is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place’” (quoting Schneider v. State (Town of Irvington), 308 U. S. 147, 163 (1939))). See also, e. g., Texas v. Johnson, 491 U. S. 397, 416, n. 11 (1989); Kusper v. Pontikes, 414 U. S. 51,
Implicitly, however, the majority downplays its reliance upon the speech-by-proxy argument. In fact, the majority reprints nearly all of Buckley's analysis of contributors’ speech interests, block quoting almost an entire paragraph from that decision. See ante, at 386-387 (quoting Buckley v. Valeo, 424 U. S., at 20-21). Tellingly, the only complete sentence from that paragraph that the majority fails to quote is the final sentence — which happens to be the one directly setting forth the speeeh-by-proxy rationale. See id., at 21 (“While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor”).
The Court in Buckley explicitly rejected two other proffered rationales for campaign finance regulation as out of tune with the First Amendment: equalization of the ability of citizens to affect the outcome of elections and controlling the costs of campaigns. See 424 U. S., at 48-49 (governmentally imposed equalization measures are “wholly foreign to the First Amendment”); id., at 57 (mounting costs of elections “providfe] no basis for governmental restrictions on the quantity of campaign spending”).
The Framers, of course, thought such attachments inevitable in a free society and that faction would infest the political process. As to controlling faction, James Madison explained, “There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.” The Federalist No. 10, p. 78 (C. Rossiter ed. 1961). Contribution caps are an example of the first method, which Madison contemptuously dismissed:
“It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.” Ibid.
The Framers preferred a political system that harnessed such faction for good, preserving liberty while also ensuring good government. Rather than adopting the repressive “cure” for faction that the majority today endorses, the Framers armed individual citizens with a remedy. "If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” Id., at 80.
The majority’s statistical analysis also overlooks the quantitative data in the record that directly undercut its position that Missouri’s law does not create “a system of suppressed political advocacy.” Ante, at 396. For example, the Court does not bother to note that following the imposition of contribution limits, total combined spending during primary and
Dissenting Opinion
dissenting.
The Court’s decision has lasting consequences for political speech in the course of elections, the speech upon which democracy depends. Yet in defining the controlling standard of review and applying it to the urgent claim presented, the Court seems almost indifferent. Its analysis would not be acceptable for the routine ease of a single protester with a hand-scrawled sign, see City of Ladue v. Gilleo, 512 U. S. 43 (1994), a few demonstrators on a public sidewalk, see United States v. Grace, 461 U. S. 171 (1983), or a driver who taped over the motto on his license plate because he disagreed with its message, see Wooley v. Maynard, 430 U. S. 705 (1977). Surely the Court’s approach is unacceptable for a ease announcing a rule that suppresses one of our most essential and prevalent forms of political speech.
It would be no answer to say that this is a routine application of our analysis in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), to a similar set of facts, so that a cavalier dis
I
Zev David Fredman asks us to evaluate his speech claim in the context of a system which favors candidates and officeholders whose campaigns are supported by soft money, usually tunneled through political parties. The Court pays him no heed. The plain fact is that the compromise the Court invented in Buckley set the stage for a new kind of speech to enter the political system. It is covert speech. The Court has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits, limits which take no account of rising campaign costs. The preferred method has been to conceal the real purpose of the speech. Soft money may be contributed to political parties in unlimited amounts, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996), and is used often to fund so-called issue advocacy, advertisements that promote or attack a candidate’s positions without specifically urging his or her election or defeat. Briffault, Issue Advocacy: Redrawing the Elections/ Politics Line, 77 Texas L. Rev. 1751, 1752-1758 (1999). Issue advocacy, like soft money, is unrestricted, see Buckley,
The irony that we would impose this regime in the name of free speech ought to be sufficient ground to reject Buckley's wooden formula in the present case. The wrong goes deeper, however. By operation of the Buckley rule, a candidate cannot oppose this system in an effective way without selling out to it first. Soft money must be raised to attack the problem of soft money. In effect, the Court immunizes its own erroneous ruling from change. Rulings of this Court must never be viewed with more caution than when they provide immunity from their own correction in the political process and in the forum of unrestrained speech. The melancholy history of campaign finance in Buckley’s wake shows what can happen when we intervene in the dynamics of speech and expression by inventing an artificial scheme of our own.
The case in one sense might seem unimportant. It appears that Mr. Fredman was an outsider candidate who may not have had much of a chance. Yet, by binding him to the outdated limit of $1,075 per contribution in a system where parties can raise soft money without limitation and a powerful press faces no restrictions on use of its own resources to back its preferred candidates, the Court tells Mr. Fredman he cannot challenge the status quo unless he first gives into it. This is not the First Amendment with which I am familiar.
My colleagues in the majority, in my respectful submission, do much disservice to our First Amendment jurisprudence by failing to acknowledge or evaluate the whole operation of the system that we ourselves created in Buckley. Our First Amendment principles surely tell us that an interest thought to be the compelling reason for enacting a law is cast into grave doubt when a worse evil surfaces in the law’s actual operation. And our obligation to examine the operation of the law is all the more urgent when the new evil is itself a distortion of speech. By these measures the law before us cannot pass any serious standard of First Amendment review.
Among the facts the Court declines to take into account is the emergence of cyberspace communication by which political contributions can be reported almost simultaneously with payment. The public can then judge for itself whether the candidate or the officeholder has so overstepped that we no longer trust him or her to make a detached and neutral judgment. This is a far more immediate way to assess the integrity and the performance of our leaders than through the hidden world of soft money and covert speech.
II
To this point my view may seem to be but a reflection of what Justice Thomas has written, and to a large extent I agree with his insightful and careful discussion of our precedents. If an ensuing chapter must be written, I may well come out as he does, for his reasoning and my own seem to point to the conclusion that the legislature can do little by way of imposing limits on political speech of this sort. For now, however, I would leave open the possibility that Congress, or a state legislature, might devise a system in which there are some limits on both expenditures and contributions, thus permitting officeholders to concentrate their time and efforts on official duties rather than on fundraising. For the reasons I have sought to express, there are serious constitutional questions to be confronted in enacting any such scheme, but I would not foreclose it at the outset. I would overrule Buckley and then free Congress or state legislatures to attempt some new reform, if, based upon their own
For these reasons, though I am in substantial agreement with what Justice Thomas says in his opinion, I have thought it necessary to file a separate dissent.
Reference
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- NIXON, ATTORNEY GENERAL OF MISSOURI, Et Al. v. SHRINK MISSOURI GOVERNMENT PAC Et Al.
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