Buckley v. Valeo, 424 U.S. 1 (1976)
Commentary by Jon Roland
This decision and opinion is seen differently, as a defeat by campaign finance reformers, and as a victory for First Amendment supporters, but from the standpoint of original understanding, it is a major departure from constitutional compliance. The Court sustained some parts of the Act and not others:
... we sustain the individual contribution limits, the disclosure and reporting provisions, and the public financing scheme. We conclude, however, that the limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds are constitutionally infirm. Finally, we hold that most of the powers conferred by the Act upon the Federal Election Commission can be exercised only by "Officers of the United States," appointed in conformity with Art. II, 2, cl. 2, of the Constitution, and therefore cannot be exercised by the Commission as presently constituted.
However, the Constitution required them to strike the entire Act. Not one provision of it is constitutional.
The opinion gives a clue as to how the Court went wrong:
The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case. Thus, the critical constitutional questions presented here go not to the basic power of Congress to legislate in this area, but to whether the specific legislation that Congress has enacted interferes with First Amendment freedoms or invidiously discriminates against nonincumbent candidates and minor parties in contravention of the Fifth Amendment.
Actually, the constitutional power of Congress to regulate federal elections is extremely narrow, limited to the actual conduct of the elections themselves. It does not extend to campaigning. The fact that none of the parties challenged this point is testimony that no one was tending to general constitutional compliance in this case. The Act most certainly does infringe on First Amendment rights. Moreover, it not only discriminates against nonincumbent candidates and minor parties, but facilitiates suppression of unpopular candidates and causes by their adversaries.
The Court got it right when they said:
... we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. ...
We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest.
The Court accepts the validity of the purposes of the Act, without adequate analysis or evidence that it would actually operate to further those aims, and not be counterproductive:
First, disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate" in order to aid the voters in evaluating those who seek federal office. ...
Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. ...
Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations....
The reality is that only political junkies who have already committed to one candidate or cause know or care where the money comes from or how it is spent. Disclosure deters nothing except contributions from individuals who don't want to be harassed. Actual corruption is not done in a way that disclosure requirements can reveal.
The Court recognized, but failed to appreciate the importance, of its own precedent:
In NAACP v. Alabama the organization had "made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility," 357 U.S., at 462 , and the State was unable to show that the disclosure it sought had a "substantial bearing" on the issues it sought to clarify, id., at 464. Under those circumstances, the Court held that "whatever interest the State may have in [disclosure] has not been shown to be sufficient to overcome petitioner's constitutional objections." Id., at 465. ...
The court left open the question of the application of the disclosure requirements to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama. No record of harassment on a similar scale was found in this case. We agree with the Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors is highly speculative. ...
We are not unmindful that the damage done by disclosure to the associational interests of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within and without the political arena. ...
There is nothing speculative about it. We have seen contributors exposed to traffic tickets, tax audits, surveillance, wiretapping, more stringent regulatory enforcement, nuisance lawsuits, boycotts, threats from suppliers or customers to withdraw business, loss of employment, vandalism, intimidation by strangers or officials, harassment of friends and relatives, criminal prosecutions or threats thereof, and death threats.
The Court based its constitutional ruling on the evidence offered, rather than on the argument from the Constitution:
There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that the Act's requirements cannot be constitutionally applied. But no appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama. ...
An approach that requires minor parties to submit evidence that the disclosure requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument goes, because the "evils" of "chill and harassment ... are largely incapable of formal proof."
But the Court offered a way for groups to argue that they should be exempt from disclosure requirements:
The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.
The Court seems unclear on a fundamental principle of rights theory:
A right is not complete unless it can be exercised in secret, and every recognition of a right is a recognition of the right to exercise it in secret. The reason for this is to protect the person not just from oppressive action by government, but also from private parties and political factions. This means persons have the rights to worship in secret; to speak and publish anonymously and in code; to peaceably assemble in secret; to petition anonymously (although a legal representative might need to be revealed to pursue the petition); to keep and bear arms in secret (although as militiamen may be required to maintain minimal military arms and other equipment); to hold property in secret (although taxable or regulatable commodities may be subject to inspection); and make financial transactions and contracts in secret (as long as they are not to commit unlawful acts, and they may need to be disclosed to be enforced by courts). Therefore, all legislative requirements for disclosure are unconstitutional. Disclosure may only be done through commodity inspection or due process, and then must meet a standard such as probable cause, and may be challenged for cause.
This general right of secrecy, sometimes called privacy, is balanced against the right of persons to know what they need to know to make lawful and law enforcement decisions, but the threshold of public need is high. It is established in the Sixth Amendment right to compulsory process for supporting testimony in criminal cases, in the Fourth Amendment right to be secure in one's premises, effects, and communications subject to a lawful search or arrest warrant, and in the Fifth Amendment right to not testify against oneself. However, there is one area that, while firmly grounded in theory, is not well established in current jurisprudence, and that is the right to protect others from unlawful demands for disclosure. The mere procedural predicate for such a demand is not sufficient. The disclosure demand must be constitutionally authorized. If it is not, one does not have a duty to comply with it, and likely the duty to resist it, especially if one has probable cause to expect that disclosure would endanger innocent persons.
The basis for all rights is not just an original claim to one's own enjoyment, but the social contract, which is very real and which establishes the duty to defend the members of one's society from threats to their rights, including one's own, as a member of the society. A duty entails the right to perform the duty, and all of the rights recognized by the constitution are based on the duty to exercise such rights in defense of the state and its constitution. The First Amendment may not have mentioned the duty to exercise the rights it recognizes, but the Second Amendment does, and the duty is implicit in the First as well. That is, we have a duty to worship, speak, publish, assemble, and petition in defense of the society. That does not mean the right may not also be exercised for one's one private benefit and enjoyment, but there is an implied state power to enforce the duty for every right except the rights to think, believe, and worship, and there is an enforceable duty to acquire the knowledge and skills needed to perform the other duties.
The Court goes seriously astray on one point:
Appellants'"general welfare" contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause.
Nonsense. The Founders were clear. It is a limitation, not a grant of power.
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