Free Speech & Electon Law Panel Discussion: Backing Off Buckley?

Campaign Finance Reform and Free Speech after Colorado Republican Party v FEC


In connection with the Federalist Society's 15th Annual National Lawyers Convention, which will be held this year in Washington, D.C., the Society's Free Speech and Election Law Practice Group is pleased to announce that it will sponsor a panel discussion on recent constitutional developments in the field of campaign finance reform. The discussion will take place in the Maryland Room of the Mayflower Hotel on Friday, November 15, 1996 from 10:00 to 11:30 a.m.

In two decades since the Supreme Court's landmark ruling in Buckley v. Valeo (1976), federal courts have done little, if anything, to re-examine, let alone disturb, the constitutional premises upon which Buckley rests. This past year, however, federal courts around the nation have been busy considering and -- for the most part -- striking down campaign finance reform laws. Capping these efforts, the Supreme Court issued a ruling on June 26, 1996 which suggests that it, too, is in the process of backing off Buckley.

The Colorado Republican Federal Campaign Comm. v. FEC case concerned federal restrictions on party expenditures in support of political candidates. The Court's 7-2 ruling, in an opinion by Justice Breyer, held that the restrictions at issue violate the First Amendment. Going one step further, Justice Clarence Thomas, in a separate opinion, expressed his view that it was high time for the Court to "reject the framework established by Buckley v. Valeo . . . for analyzing the constitutionality of campaign finance laws."

As campaign finance cases proliferate in the federal courts, lawyers and legal scholars are increasingly questioning Buckley's central premise -- that campaign contributions, but not expenditures, are subject to stringent government regulation. The Colorado Republican case highlights the inherent tensions in Buckley's First Amendment distinction between expenditures and contributions, upholding a political party's right to make independent expenditures in support of a candidate despite the FEC's assertion that such expenditures can be regulated under Buckley because they are simply veiled campaign contributions.

But at the same time that prominent courts and legal scholars appear more inclined to question the wisdom and constitutionality of campaign finance laws, such reform efforts remain extraordinarily popular with both the general public and the news media. Perhaps unsurprisingly, therefore, Republican and Democratic leaders in both houses of Congress have vowed to move ever more restrictive campaign finance bills in upcoming congressional sessions. In short, after years of status quo quietism, campaign finance reform law has begun to heat up.

The Federalist Society's Practice Group discussion on this topic will explore what the Supreme Court's recent ruling means for candidates, political parties, and elections law practitioners, and whether the votes are or will shortly be "there" to cut back, if not overrule Buckley outright. In addition to providing a brief snapshot of the current state of campaign finance law, the panel members will take a closer look at what is percolating up through the lower federal courts, what campaign finance issues are likely to make their way onto the Supreme Court's docket in the future, and what types of legislative "fixes" Congress is likely to devise in the wake of recent legal developments.

Scheduled participants for this event include: Burt Neuborne, NYU law professor and former ACLU legal director; Bradley A. Smith, a professor of law at Capital University Law School whose specialties include campaign finance law; John L. Sullivan, an attorney at Mayer, Brown & Platt specializing in Supreme Court and appellate practice; and former FEC Commissioner Trevor Potter, who currently practices at Wiley, Rein & Fielding.


2001 The Federalist Society