From: <dfk2102@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Fri, 21 Apr 2006 18:44:23 -0400

Buckley Stops Here?(Paper One)

In class we explored whether the Supreme Court's decision in Buckley
v. Valeo striking down limitations on campaign expenditures ought to
be reexamined in light of the internet's increasing role in the
election process.  This paper examines the Court's decision in
Buckley, and how the internet turns the conventional analysis on
its head, before considering how the Court might react to
expenditure caps in the case now before it.

In Buckley, the Court found that limitations on expenditures by
candidates using their own finances were a “substantial and direct”
restriction on First Amendment speech unsupported by any
“substantial government interest.”  The Court reasoned that mass
media were “indispensable instruments of effective speech,” so
limiting the ability to utilize mass media “to advocate [one's] own
election” was a substantial First Amendment restriction.  The Court
further found no substantial governmental interest in that
restriction: an anti-corruption rationale was inapplicable to
personal funds as the use of personal funds in fact “counteracts
coercive pressures;” and an equalization of financial resources
rationale (in dissent, J. Marshall referred to it as an “equal
access” issue) was insufficient as, “fundamentally, the First
Amendment simply cannot tolerate [the statute's] restriction upon
the freedom of a candidate to speak without legislative limit on
behalf of his own candidacy.”

However, the rationale undergirding Buckley is significantly
undermined by the emergence of the internet as a campaign tool.  It
is of course too early to judge the full effect of the web on
political discourse, but as we already see candidates engaging
voters directly through their own websites and blogs—and know that
setting up an effective website can be done inexpensively—the
Buckley “money talks” theme loses much of its force.  It's no
longer so clear, if it ever was, that unconstrained access to mass
media is “indispensable” for “effective speech.”  And so it's no
longer clear that limiting a candidate from using her own finances
without limit is a “substantial and direct” affront to the First
Amendment.

On the other hand, if utilization of money in campaigns is not
strongly related to the ability to convey a political message and
influence an election, the governmental interest in caps also seems
weakened.  The Court has already rejected the corruption rationale
for expenditures from personal funds, and while the emergence of
Bloomberg-mold oligarchs might belie the conclusion that using your
own money makes the elective process less corrupt, the development
of web campaigns should further decrease that potentiality.  The
same goes for the “equal access” rationale advanced by Marshall:
beyond a minimal financial threshold any candidate has the ability
to run a site and blog, use it to raise money for other campaign
activities, and communicate their message.  This threshold is
probably roughly equivalent to the digital divide, which admittedly
does have racial undertones, though a promising sign is the recent
article which found the gap closing rapidly.  Thus, setting aside
the digital divide, it seems that if access to the traditional mass
media is no longer an indispensable tool for political speech,
campaign caps would be rendered superfluous to the end of achieving
equal access.

In Sorrell, the 2d Circuit recently affirmed that Buckley does not
impose a per se ban on expenditure limitations, but rather subjects
such limitations to strict scrutiny review—and found a Vermont law
placing limitations on campaign expenditures met that burden as it
was aimed at “preventing the reality and appearance of corruption
and protecting the time of candidates and elected officials”
(though they remanded for more fact-finding on narrow-tailoring). 
The decision was denied rehearing en banc, largely to encourage the
Supreme Court to reexamine Buckley.  Denying the rehearing, J.
Calabresi identified the essential problem as “the perceived need
to protect the right to express one's intensity of desire in
political matters through (among other mechanisms) money, and, at
the same time, the wish to measure and give effect to that
intensity of desire in a way that is fair to the rich and the poor
alike.”

Calabresi's observation struck me as precisely the issue—and one
that political speech on the web uniquely addresses, particularly
as it deemphasizes the relationship between money and effective
speech.  Perhaps my analysis above gets things backwards.  We
haven't yet seen the internet render anachronistic the proposition
that “money talks,” but we can see the potential for the web to
allow for robust political expression in an egalitarian manner. 
So, perhaps rather than observing that if money no longer talks we
no longer need campaign caps—we should recognize that money still
is strongly correlated with effective speech, and that in this
context the government should be actively concerned with
facilitating an election regime which provides a means for allowing
every citizen the ability to engage in political dialogue freely,
and creates a real marketplace of ideas.

The Supreme Court agreed to hear Sorrell on appeal, with decision
pending this summer.  Unfortunately, after reading the transcripts
of the oral arguments, it struck me that this Court still seems
happy to equate money with speech.  J. Scalia seemed incredulous
about the prospect of caps: “[Y]ou want to limit expenditures, even
if it's the person's own money. . . . You're saying, no, this is
enough speech.  We don't want to hear any more from you. . . .
That's extraordinary.”  Of course, the response is—no, we're not
saying, “Enough speech;” rather as an electorate we're saying,
“We've made the democratic judgment that we want as many
individuals as possible engaged in political speech—speak all you
want, just follow the expenditure rules.”  Given its current
composition, and the shadow of Buckley, the Court is perhaps
unlikely to follow this line of reasoning.  But, the emergence of
the web in political discourse should render these financial
disparities of decreasing consequence anyway—maybe the next
candidate for Senator in Vermont will be able to buy all the t.v.
time she wants, but the electorate will already be engaged in
politics on the web and Tivo-ing through those pesky campaign
commercials.

*Word Count=1000*
Sources Consulted
Buckley v. Valeo, 451 U.S. 1 (1976)
Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2004)
Landell v. Sorrell, rehearing en banc denied, 406 F.3d 159 (2d Cir.
2005)
Randall v. Sorrell, pending before the S. Ct.
National Voting Rights Institute,
http://www.nvri.org/campaignspending/index.html
Michel Marriot, Blacks Turn to Internet Highway, and Digital Divide
Starts to Close, N.Y Times (Mar. 31, 2006).
Charles Lane, High Court to Decide Campaign Finance Cases, Wash.
Post (Sept. 28, 2005).

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