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JEREMIAH W. (JAY) NIXON, ATTORNEY GENERAL OF MISSOURI, et
al., PETITIONERS
v.
SHRINK MISSOURI GOVERNMENT PAC et al.
No. 98-963
In the Supreme Court of the United States
On writ of certiorari to the United States Court of Appeals for
the Eighth Circuit 161 F.3d 519, reversed and remanded.
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O' Connor, Ginsburg, and Breyer, JJ., joined.
Stevens, J., filed a concurring opinion. Breyer, J., filed a
concurring opinion, in which Ginsburg, J., joined. Kennedy, J.,
filed a dissenting opinion. Thomas, J., filed a dissenting opinion,
in which Scalia, J., joined.
Argued October 5, 1999
Decided January 24, 2000
Justice Souter 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 whether
the federal limits approved in Buckley, with or without adjustment
for inflation, define the scope of permissible state limitations
today. We hold Buckley to be authority for comparable state regulation,
which need not be pegged to Buckley' s dollars.
I
In 1994, the Legislature of Missouri enacted Senate Bill
650 (SB650) 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 a $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 index ... and
rounded to the nearest twenty-five-dollar amount, for all years
since January 1, 1995." § 130.032.2. When this suit
was filed, the limits ranged from a high of $1,075 for contributions
to candidates for statewide office (including state auditor)
and for any office where the population exceeded 250,000, down
to $275 for contributions to candidates for state representative
or for any office for which there were fewer than 100,000 people
represented. 161 F.3d, at 520; App. 37.
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[FOOTNOTE 1] as violating
their First and Fourteenth Amendment rights (presumably those
of free speech, association, and equal protection, although the
complaint did not so state). Shrink Missouri gave $1,025 to Fredman'
s candidate committee in 1997, and another $50 in 1998. Shrink
Missouri represented that, without the limitation, it would contribute
more to the Fredman campaign. Fredman alleged he could campaign
effectively only with more generous contributions than §
130.032.1 allowed. Shrink Missouri Government PAC v. Adams, 5
F. Supp. 2d 734, 737 (ED Mo. 1998).
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' contention that inflation since Buckley'
s approval of a federal $1,000 restriction meant that the state
limit of $1,075 for a statewide office could not be constitutional
today. Id., at 740.
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." Id., at 521
(quoting Carver v. Nixon, 72 F.3d, 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 co-chairman of the state legislature' s
Interim Joint Committee on Campaign Finance Reform when the statute
was passed, was inadequate to raise a genuine issue of material
fact about the State' s alleged interest in limiting campaign
contributions. Ibid.[FOOTNOTE 2]
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 guarantees of the First Amendment
and the Equal Protection Clause of the Fourteenth. 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.
A
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 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 associational
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
case 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 associational
rights, 424 U. S, at 25 (internal quotation marks omitted), could
survive if the Government demonstrated that contribution regulation
was "closely drawn" to match a "sufficiently important
interest," ibid., though the dollar amount of the limit
need not be "fine tun[ed]," id., at 30.[FOOTNOTE 3]
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 legitimately 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 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 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.[FOOTNOTE 4]
B
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 anti-gratuity 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 pro quo improbity, ibid. The
public interest in countering that perception was, indeed, the
entire answer to the overbreadth claim raised in the Buckley
case. 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 perception among
Missouri voters that unrestricted contributions must have been
exerting a covertly corrosive influence. The state statute is
not void, however, for want of evidence.
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.[FOOTNOTE 5] As to that, respondents
are wrong in arguing that in the years since Buckley came
down we have "supplemented" its holding with a new
requirement that governments enacting contribution limits must
"' demonstrate that the recited harms are real, not merely
conjectural,' "Brief for Respondents Shrink Missouri Government
PAC et al. 26 (quoting United States v. Treasury Employees, 513
U.S. 454, 475 (1995) (in turn quoting Turner Broadcasting System,
Inc. v. FCC, 512 U.S. 622, 664 (1994))), a contention for which
respondents rely principally on Colorado Republican Federal Campaign
Comm. v. Federal Election Comm' n, 518 U.S. 604 (1996). We have
never accepted mere conjecture as adequate to carry a First Amendment
burden, and Colorado Republican did not deal with a government'
s burden to justify limits on contributions. Although the principal
opinion in that case charged the Government with failure to show
a real risk of corruption, id., at 616 (opinion of Breyer, J.),
the issue in question was limits on independent expenditures
by political parties, which the principal opinion expressly distinguished
from contribution limits: "limitations on independent expenditures
are less directly related to preventing corruption" than
contributions are. Id., at 615. In that case, the "constitutionally
significant fact" that there was no "coordination between
the candidate and the source of the expenditure" kept the
principal opinion "from assuming, absent convincing evidence
to the contrary, that [a limitation on expenditures] is necessary
to combat a substantial danger of corruption of the electoral
system." Id., at 617-618. Colorado Republican thus goes
hand in hand with Buckley, not toe to toe.
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,[FOOTNOTE
6] the evidence introduced into the record by respondents or
cited by the lower courts in this action and the action regarding
Proposition A is enough to show that the substantiation of the
congressional concerns reflected in Buckley has its counterpart
supporting the Missouri law. Although Missouri does not preserve
legislative history, 5 F. Supp. 2d, at 738, the State presented
an affidavit from State Senator Wayne Goode, the co-chair of
the state legislature' s Interim Joint Committee on Campaign
Finance Reform at the time the State enacted the contribution
limits, who stated that large contributions have "' the
real potential to buy votes,' "ibid.; App. 47. The District
Court cited newspaper accounts of large contributions supporting
inferences of impropriety. 5 F. Supp. 2d, at 738, n. 6. One report
questioned the state treasurer' s decision to use a certain bank
for most of Missouri' s banking business after that institution
contributed $20,000 to the treasurer' s campaign. Editorial,
The Central Issue is Trust, St. Louis Post-Dispatch, Dec. 31,
1993, p. 6C. Another made much of the receipt by a candidate
for state auditor of a $40,000 contribution from a brewery and
one for $20,000 from a bank. J. Mannies, Auditor Race May Get
Too Noisy to be Ignored, St. Louis Post-Dispatch, Sept. 11, 1994,
at 4B. In Carver v. Nixon, 72 F.3d 633 (1995), the Eighth Circuit
itself, while invalidating the limits Proposition A imposed,
identified a $420,000 contribution to candidates in northern
Missouri from a political action committee linked to an investment
bank, and three scandals, including one in which a state representative
was "accused of sponsoring legislation in exchange for kickbacks,"
and another in which Missouri' s former attorney general pleaded
guilty to charges of conspiracy to misuse state property, id.,
at 642, and n. 10, after being indicted for using a state workers'
compensation fund to benefit campaign contributors. And although
majority votes do not, as such, defeat First Amendment protections,
the statewide vote on Proposition A certainly attested to the
perception relied upon here: "[A]n overwhelming 74 percent
of the voters of Missouri determined that contribution limits
are necessary to combat corruption and the appearance thereof."
Carver v. Nixon, 882 F. Supp. 901, 905 (WD Mo.), rev' d, 72 F.3d
633 (CA8 1995); see also 5 F. Supp. 2d, at 738, n. 7.
There might, of course, be need for a more extensive evidentiary
documentation if petitioners 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 publications,
and the absence of any reason to think that public perception
has been influenced by the studies cited by respondents, there
is little reason to doubt that sometimes large contributions
will work actual corruption of our political system, and no reason
to question the existence of a corresponding suspicion among
voters.
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.[FOOTNOTE
7] Here, as in Buckley, "[t]here is no indication . . .
that the contribution limitations imposed by the [law] would
have any dramatic[ally] adverse effect on the funding of campaigns
and political associations," and thus no showing that "the
limitations prevented the candidates and political committees
from amassing the resources necessary for effective advocacy."
424 U.S., at 21. The District Court found here that in the period
since the Missouri limits became effective, "candidates
for state elected office [have been] quite able to raise funds
sufficient to run effective campaigns," 5 F. Supp. 2d, at
740, and that "candidates for political office in the state
are still able to amass impressive campaign war chests,"
id., at 741.[FOOTNOTE 8] The plausibility of these conclusions
is buttressed by petitioners' evidence that in the 1994 Missouri
elections (before any relevant state limitations went into effect),
97.62 percent of all contributors to candidates for state auditor
made contributions of $2,000 or less. 5 F. Supp. 2d, at 741;
App. 34-36.[FOOTNOTE 9] Even if we were to assume that the contribution
limits affected respondent Fredman' s ability to wage a competitive
campaign (no small assumption given that Fredman only identified
one contributor, Shrink Missouri, that would have given him more
than $1,075 per election), a showing of one affected individual
does not point up a system of suppressed political advocacy that
would be unconstitutional under Buckley.
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.
In Buckley, we specifically rejected the contention that
$1,000, or any other amount, was a constitutional minimum below
which legislatures could not regulate. As indicated above, we
referred instead to the outer limits of contribution regulation
by asking whether there was any showing that the limits were
so low as to impede the ability of candidates to "amas[s]
the resources necessary for effective advocacy," 424 U.S.,
at 21. We asked, in other words, whether the contribution limitation
was 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. Such being the test, the
issue in later cases cannot be truncated to a narrow question
about the power of the dollar, but must go to the power to mount
a campaign with all the dollars likely to be forthcoming. As
Judge Gibson put it, the dictates of the First Amendment are
not mere functions of the Consumer Price Index. 161 F.3d, at
525 (dissenting opinion).
D
The dissenters in this case think our reasoning evades
the real issue. Justice Thomas chides us for "hiding behind"
Buckley, post, at 13, 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 1. 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.
III
There is no reason in logic or evidence to doubt the sufficiency
of Buckley to govern this case in support of the Missouri statute.
The judgment of the Court of Appeals is, accordingly, reversed,
and the case is remanded for proceedings consistent with this
opinion.
It is so ordered.
Notes
1. 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).
2. 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.
3. 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" ).
4. 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
PAC et al. 23-24. This is essentially an equal protection claim,
which Buckley squarely faced. We found no support for the proposition
that an incumbent' s advantages were leveraged into something
significantly more powerful by contribution limitations applicable
to all candidates, whether veterans or upstarts, 424 U.S., at
31-35. Since we do not relax Buckley' s standard, no more need
be said about respondents' argument, though we note that nothing
in the record here gives respondents a stronger argument than
the Buckley petitioners made.
5. 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) ("Buckley identified a single
narrow exception to the rule that limits on political activity
were contrary to the First Amendment. The exception relates to
the perception of undue influence of large contributors to a
candidate" ); see also Federal Election Comm' n v. National
Conservative Political Action Comm., 470 U.S. 480, 500 (1985)
(observing that Buckley upheld contribution limits as constitutional,
and noting the Court' s "deference to a congressional determination
of the need for a prophylactic rule where the evil of potential
corruption had long been recognized" ).
6. 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"
).
7. 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, where we said
that anti-bribery 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." Buckley v. Valeo, 424
U.S. 1, 28 (1976) (per curiam). 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.
8. 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.
9. 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.
Justice Stevens, 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.[FOOTNOTE
1]
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 liberty"
or as "deprivations of property," see, e.g., Moore
v. East Cleveland, 431 U.S. 494, 513 (1977) (Stevens, J., concurring
in judgment). Telling a grandmother that she may not use her
own property to provide shelter to a grandchild-or to hire mercenaries
to work in that grandchild' s campaign for public office-raises
important constitutional concerns that are unrelated to the First
Amendment. Because I did not participate in the Court' s decision
in Buckley, I did not have the opportunity to suggest then that
those property and liberty concerns adequately explain the Court'
s decision to invalidate the expenditure limitations in the 1974
Act.
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.
Notes
1. 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" ).
Justice Breyer, 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 "balance[s] away First Amendment
freedoms." Post, at 1 (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. Under 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 separately to address the critical question
of how the Court ought to review this kind of problem, and to
explain why I believe the Court' s choice here is correct.
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 case 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.
On the other hand, restrictions upon the amount any one
individual can contribute to a particular candidate seek to protect
the integrity of the electoral process-the means through which
a free society democratically translates political speech into
concrete governmental action. See id., at 26-27; Burroughs v.
United States, 290 U.S. 534, 545 (1934) (upholding 1925 Federal
Corrupt Practices Act by emphasizing constitutional importance
of safeguarding the electoral process); see also Burson v. Freeman,
504 U.S. 191, 199 (1992) (plurality opinion) (recognizing compelling
interest in preserving integrity of electoral process). Moreover,
by limiting the size of the largest contributions, such restrictions
aim to democratize the influence that money itself may bring
to bear upon the electoral process. Cf. Reynolds v. Sims, 377
U.S. 533, 565 (1964) (in the context of apportionment, the Constitution
"demands" that each citizen have "an equally effective
voice" ). In doing so, they seek to build public confidence
in that process and broaden the base of a candidate' s meaningful
financial support, encouraging the public participation and open
discussion that the First Amendment itself presupposes. See Mills
v. Alabama, 384 U.S. 214, 218-219 (1966); Whitney v. California,
274 U.S. 357, 375-376 (1927) (Brandeis, J., concurring); A. Meiklejohn,
Free Speech and Its Relation to Self-Government 24-27 (1948).
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 language that
could be interpreted to the contrary. It said, for example, that
it rejected "the concept that government may restrict the
speech of some elements of our society in order to enhance the
relative voice of others." 424 U.S., at 48-49. But those
words cannot be taken literally. The Constitution often permits
restrictions on the speech of some in order to prevent a few
from drowning out the many-in Congress, for example, where constitutionally
protected debate, Art. I, § 6, is limited to provide every
Member an equal opportunity to express his or her views. Or in
elections, where the Constitution tolerates numerous restrictions
on ballot access, limiting the political rights of some so as
to make effective the political rights of the entire electorate.
See, e.g., Storer v. Brown, 415 U.S. 724, 736 (1974). Regardless,
as the result in Buckley made clear, the statement does not automatically
invalidate a statute that seeks a fairer electoral debate through
contribution limits, nor should it forbid the Court to take account
of the competing constitutional interests just mentioned.
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 is found generally where
competing constitutional interests are implicated, such as privacy,
see, e.g., Frisby v. Schultz, 487 U.S. 474, 485-488 (1988) (balancing
rights of privacy and expression); Rowan v. Post Office Dept.,
397 U.S. 728, 736 (1970) (same), First Amendment interests of
listeners or viewers, see, e.g., Turner Broadcasting System,
Inc. v. FCC, 520 U.S. 180, 192-194 (1997) (recognizing the speech
interests of both viewers and cable operators); Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412 U.S. 94, 102-103
(1973) ("Balancing the various First Amendment interests
involved in the broadcast media ... is a task of great delicacy
and difficulty" ); Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 389-390 (1969) (First Amendment permits the Federal
Communications Commission to restrict the speech of some to enable
the speech of others), and the integrity of the electoral process,
see, e.g., Burson, 504 U.S., at 198-211 (weighing First Amendment
rights against electoral integrity necessary for right to vote);
Anderson v. Celebrezze, 460 U.S. 780, 788-790 (1983) (same);
Storer v. Brown, supra, at 730 (1974) ("[T]here must be
a substantial regulation of elections if they are to be fair
and honest" ). The approach taken by these cases is consistent
with that of other constitutional courts facing similarly complex
constitutional problems. See, e.g., Bowman v. United Kingdom,
26 Eur. H. R. Rep. 1 (European Ct. of Human Rights 1998) (demanding
proportionality in the campaign finance context); Libman v. Quebec
(Attorney General), 151 D. L. R.(4th) 385 (Canada 1997) (same).
For the dissenters to call the approach "sui generis,"
post, at 1 (opinion of Thomas, J.), overstates their case.
Applying this approach to the present case, 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 electoral process. But
we should not defer in respect to whether its solution, by imposing
too low a contribution limit, significantly increases the reputation-related
or media-related advantages of incumbency and thereby insulates
legislators from effective electoral challenge. The statutory
limit here, $1,075 (or 378, 1976 dollars), is low enough to raise
such a question. But given the empirical information presented-the
type of election at issue; the record of adequate candidate financing
post-reform; and the fact that the statute indexes the amount
for inflation-I agree with the Court that the statute does not
work disproportionate harm. The limit may have prevented the
plaintiff, Zev David Fredman, from financing his own campaign
for office, for Fredman' s support among potential contributors
was not sufficiently widespread. But any contribution statute
(like any statute setting ballot eligibility requirements, see,
e.g., Jenness v. Fortson, 403 U.S. 431, 442 (1971)) will narrow
the field of conceivable challengers to some degree. Undue insulation
is a practical matter, and it cannot be inferred automatically
from the fact that the limit makes ballot access more difficult
for one previously unsuccessful candidate.
The approach I have outlined here is consistent with the
approach this Court has taken in many complex First Amendment
cases. See supra, at 4-5. 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 authority in a particular case.
See Colorado Republican Federal Campaign Comm. v. Federal Election
Comm' n, 518 U.S. 604, 619-621 (1996) (whether claimed "independent
expenditure" is a "coordinated expenditure" );
accord, id., at 648-650 (Stevens, J., dissenting). Alternatively,
it might prove possible to reinterpret aspects of Buckley in
light of the post-Buckley experience stressed by Justice Kennedy,
post, at 2-5 (dissenting opinion), making less absolute the contribution/expenditure
line, particularly in respect to independently wealthy candidates,
whose expenditures might be considered contributions to their
own campaigns.
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.
Justice Kennedy, 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
case 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 case 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 dismissal of the
petitioners' claim is appropriate. The justifications for the
case system and stare decisis must rest upon the Court' s capacity,
and responsibility, to acknowledge its missteps. It is our duty
to face up to adverse, unintended consequences flowing from our
own prior decisions. With all respect, I submit the Court does
not accept this obligation in the case before us. Instead, it
perpetuates and compounds a serious distortion of the First Amendment
resulting from our own intervention in Buckley. The Court is
concerned about voter suspicion of the role of money in politics.
Amidst an atmosphere of skepticism, however, it hardly inspires
confidence for the Court to abandon the rigors of our traditional
First Amendment structure.
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 funneled
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 Tex. L. Rev. 1751, 1752-1753 (1999).
Issue advocacy, like soft money, is unrestricted, see Buckley,
supra, at 42-44, while straightforward speech in the form of
financial contributions paid to a candidate, speech subject to
full disclosure and prompt evaluation by the public, is not.
Thus has the Court' s decision given us covert speech. This mocks
the First Amendment. The current system would be unfortunate,
and suspect under the First Amendment, had it evolved from a
deliberate legislative choice; but its unhappy origins are in
our earlier decree in Buckley, which by accepting half of what
Congress did (limiting contributions) but rejecting the other
(limiting expenditures) created a misshapen system, one which
distorts the meaning of speech.
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
$1075 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.
To defend its extension of Buckley to present times, the
Court, of course, recites the dangers of corruption, or the appearance
of corruption, when an interested person contributes money to
a candidate. What the Court does not do is examine and defend
the substitute it has encouraged, covert speech funded by unlimited
soft money. In my view that system creates dangers greater than
the one it has replaced. The first danger is the one already
mentioned: that we require contributors of soft money and its
beneficiaries to mask their real purpose. Second, we have an
indirect system of accountability that is confusing, if not dispiriting,
to the voter. The very disaffection or distrust that the Court
cites as the justification for limits on direct contributions
has now spread to the entire political discourse. Buckley has
not worked.
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.
Officeholders face a dilemma inherent in the democratic
process and one that has never been easy to resolve: how to exercise
their best judgment while soliciting the continued support and
loyalty of constituents whose interests may not always coincide
with that judgment. Edmund Burke captured the tension in his
Speeches at Bristol. "Your representative owes you, not
his industry only, but his judgment; and he betrays instead of
serving you, if he sacrifices it to your opinion." E. Burke,
Speeches of the Right Hon. Edmund Burke 130 (J. Burke ed. 1867).
Whether our officeholders can discharge their duties in a proper
way when they are beholden to certain interests both for reelection
and for campaign support is, I should think, of constant concern
not alone to citizens but to conscientious officeholders themselves.
There are no easy answers, but the Constitution relies on one:
open, robust, honest, unfettered speech that the voters can examine
and assess in an ever-changing and more complex environment.
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 considered view of the First
Amendment, it is possible to do so. Until any reexamination takes
place, however, the existing distortion of speech caused by the
half-way house we created in Buckley ought to be eliminated.
The First Amendment ought to be allowed to take its own course
without further obstruction from the artificial system we have
imposed. It suffices here to say that the law in question does
not come even close to passing any serious scrutiny.
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.
Justice Thomas, 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.
I
I begin with a proposition that ought to be unassailable:
Political speech is the primary object of First Amendment protection.
See, e.g., Mills v. Alabama, 384 U.S. 214, 218 (1966); Whitney
v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring);
T. Cooley, Constitutional Limitations *422; Z. Chafee, Free Speech
in the United States 28 (1954); Bork, Neutral Principles and
Some First Amendment Problems, 47 Ind. L. J. 1, 20 (1971); Sunstein,
Free Speech Now, in The Bill of Rights in the Modern State 304-307
(G. Stone, R. Epstein, & C. Sunstein eds. 1992). The Founders
sought to protect the rights of individuals to engage in political
speech because a self-governing people depends upon the free
exchange of political information. And that free exchange should
receive the most protection when it matters the most-during campaigns
for elective office. "The value and efficacy of [the right
to elect the members of government] depends on the knowledge
of the comparative merits and demerits of the candidates for
public trust, and on the equal freedom, consequently, of examining
and discussing these merits and demerits of the candidates respectively."
Madison, Report on the Resolutions (1799), in 6 Writings of James
Madison 397 (G. Hunt ed. 1906).
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 fullest and most urgent application'
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)
("[S]peech 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 "speech," such as making false defamatory
statements, filing lawsuits, dancing nude, exhibiting drive-in
movies with nudity, burning flags, and wearing military uniforms.[FOOTNOTE
1] Not surprisingly, the Courts of Appeals have followed our
lead and concluded that the First Amendment protects, for example,
begging, shouting obscenities, erecting tables on a sidewalk,
and refusing to wear a necktie.[FOOTNOTE 2] In light of the many
cases of this sort, today' s decision is a most curious anomaly.
Whatever the proper status of such activities under the First
Amendment, I am confident that they are less integral to the
functioning of our Republic than campaign contributions. Yet
the majority today, rather than going out of its way to protect
political speech, goes out of its way to avoid protecting it.
As I explain below, contributions to political campaigns generate
essential political speech. And contribution caps, which place
a direct and substantial limit on core speech, should be met
with the utmost skepticism and should receive the strictest scrutiny.
II
At bottom, the majority' s refusal to apply strict scrutiny
to contribution limits rests upon Buckley' s 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.
A
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," Buckley v. Valeo, 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 6). 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." Id., at 21. See also California
Medical Assn. v. Federal Election Comm' n, 453 U.S. 182, 196
(1981) (plurality opinion) ("[T]he ' speech by proxy' 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 proxy'
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).
And, inasmuch as the speech-by-proxy argument was disconnected
from the realities of political speech to begin with, it is not
surprising that we have firmly rejected it since Buckley. In
Federal Election Comm' n v. National Conservative Political Action
Comm., 470 U.S. 480 (1985), we cast aside the argument that a
contribution does not represent the constitutionally protected
speech of a contributor, recognizing "that the contributors
obviously like the message they are hearing from these organizations
and want to add their voices to that message; otherwise they
would not part with their money." Id., at 495. Though in
that case we considered limitations on expenditures made by associations,
our holding that the speech-by-proxy argument fails to diminish
contributors' First Amendment rights is directly applicable to
this case. In both cases, donors seek to disseminate information
by giving to an organization controlled by others. Through contributing,
citizens see to it that their views on policy and politics are
articulated. In short, "they are aware that however great
the confidence they may justly feel in their own good sense,
their interests can be more effectually promoted by [another]
than by themselves." The Federalist No. 35, p. 214 (C. Rossiter
ed. 1961) (A. Hamilton).
Without the assistance of the speech-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 6), 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 6), 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 6)-still rest
on the proposition that speech by proxy is not fully protected.
These contentions simply ignore that a contribution, by amplifying
the voice of the candidate, helps to ensure the dissemination
of the messages that the contributor wishes to convey. Absent
the ability to rest on the denigration of contributions as mere
"proxy speech," the arguments fall apart.[FOOTNOTE
3]
The decision of individuals to speak through contributions
rather than through independent expenditures is entirely reasonable.[FOOTNOTE
4] Political campaigns are largely candidate focused and candidate
driven. Citizens recognize that the best advocate for a candidate
(and the policy positions he supports) tends to be the candidate
himself. And candidate organizations also offer other advantages
to citizens wishing to partake in political expression. Campaign
organizations offer a ready-built, convenient means of communicating
for donors wishing to support and amplify political messages.
Furthermore, the leader of the organization-the candidate-has
a strong self-interest in efficiently expending funds in a manner
that maximizes the power of the messages the contributor seeks
to disseminate. Individual citizens understandably realize that
they "may add more to political discourse by giving rather
than spending, if the donee is able to put the funds to more
productive use than can the individual." Colorado Republican,
518 U.S., at 636 (Thomas, J., concurring in judgment and dissenting
in part). See also Federal Election Comm' n v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238, 261 (1986) ("[I]ndividuals
contribute to a political organization in part because they regard
such a contribution as a more effective means of advocacy than
spending the money under their own personal direction" ).[FOOTNOTE
5]
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
6), ignores the distinct role of candidate organizations as a
means of individual participation in the Nation' s civic dialogue.[FOOTNOTE
6] The result is simply the suppression of political speech.
By depriving donors of their right to speak through the candidate,
contribution limits relegate donors' points of view to less effective
modes of communication. Additionally, limiting contributions
curtails individual participation. "Even for the affluent,
the added costs in money or time of taking out a newspaper advertisement,
handing out leaflets on the street, or standing in front of one'
s house with a hand-held sign may make the difference between
participating and not participating in some public debate."
City of Ladue v. Gilleo, 512 U.S. 43, 57 (1994) (opinion of the
Court by Stevens, J.). Buckley completely failed in its attempt
to provide a basis for permitting government to second-guess
the individual choices of citizens partaking in quintessentially
democratic activities. "The First Amendment mandates that
we presume that speakers, not the government, know best both
what they want to say and how to say it." Riley v. National
Federation of Blind of N. C., Inc., 487 U.S. 781, 790-791
(1988).
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 ability of candidates to present, and the public to receive,
information necessary for the effective operation of the democratic
process." CBS, Inc. v. FCC, 453 U.S. 367, 396 (1981). See
also Citizens Against Rent Control/Coalition for Fair Housing
v. Berkeley, 454 U.S. 290, 299 (1981) ("Placing limits on
contributions which in turn limit expenditures plainly impairs
freedom of expression" ). Instead, the Court abstracted
from a candidate' s individual right to speak and focused exclusively
on aggregate campaign funding. See Buckley v. Valeo, supra, at
21 ("There is no indication ... that the contribution limitations
imposed by the Act would have any dramatic adverse effect on
the funding of campaigns" ) (quoted ante, at 15-16); ante,
at 16 (There is "no showing that ' the limitations prevented
the candidates and political committees from amassing the resources
necessary for effective advocacy' "(quoting Buckley v. Valeo,
supra, at 21)).
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 rights'
"(quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948))). In
short, the right to free speech is a right held by each American,
not by Americans en masse. The Court in Buckley provided no basis
for suppressing the speech of an individual candidate simply
because other candidates (or candidates in the aggregate) may
succeed in reaching the voting public. And any such reasoning
would fly in the face of the premise of our political system-liberty
vested in individual hands safeguards the functioning of our
democracy. In the case at hand, the Missouri scheme has a clear
and detrimental effect on a candidate such as petitioner Fredman,
who lacks the advantages of incumbency, name recognition, or
substantial personal wealth, but who has managed to attract the
support of a relatively small number of dedicated supporters:
It forbids his message from reaching the voters. And the silencing
of a candidate has consequences for political debate and competition
overall. See Arkansas Ed. Television Comm' n v. Forbes, 523 U.S.
666, 692, n. 14 (1998) (Stevens, J., dissenting) (noting that
the suppression of a minor candidate' s speech may directly affect
the outcome of an election); cf. NAACP v. Button, 371 U.S. 415,
431 (1963) ("' All political ideas cannot and should not
be channeled into the programs of our two major parties. History
has amply proved the virtue of political activity by minority,
dissident groups ... ' "(quoting Sweezy v. New Hampshire,
supra, at 250-251 (plurality opinion))).
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 the speech-by-proxy
argument or the reality that Buckley' s remaining premises fall
when deprived of that support.[FOOTNOTE 7]
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 7, 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 5-6,
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 when the daily politics cries loudest
for limiting what may be said" ).
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 7, the Court proceeds to significantly extend the holding
in that case. 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.[FOOTNOTE
8] 424 U.S., at 25-26. And the Court repeatedly used the
word "corruption" in the narrow quid pro quo sense,
meaning "[p]erversion or destruction of integrity in the
discharge of public duties by bribery or favour." 3 Oxford
English Dictionary 974 (2d ed. 1989). See also Webster' s Third
New International Dictionary 512 (1976) ("inducement (as
of a political official) by means of improper considerations
(as bribery) to commit a violation of duty" ). When the
Court set forth the interest in preventing actual corruption,
it spoke about "large contributions ... given to secure
a political quid pro quo from current and potential office holders."
Buckley v. Valeo, 424 U.S., at 26. The Court used similar language
when it set forth the interest in protecting against the appearance
of corruption: "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." Id., at 27. Later, in discussing limits
on independent expenditures, the Court yet again referred to
the interest in protecting against the "dangers of actual
or apparent quid pro quo arrangements." Id., at 45. See
also id., at 47 (referring to "the danger that expenditures
will be given as a quid pro quo for improper commitments"
); id., at 67 (corruption relates to "post-election special
favors that may be given in return" for contributions).
To be sure, after mentioning quid pro quo transactions,
the Court went on to use more general terms such as "opportunities
for abuse," id., at 27, "potential for abuse,"
id., at 47, "improper influence," id., at 27, 29, 45,
"attempts ... to influence," id., at 28, and "buy[ing]
influence," id., at 45. But this general language acquires
concrete meaning only in light of the preceding specific references
to quid pro quo arrangements.
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 in 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, casting aspersions on
"politicians too compliant with the wishes of large contributors."
Ante, at 9. "But precisely what the ' corruption' may consist
of we are never told with assurance." National Conservative
Political Action Comm., supra, at 498. Presumably, the majority
does not mean that politicians should be free of attachments
to constituent groups.[FOOTNOTE 9] And the majority does not
explicitly rely upon the "harm" that the Court in Buckley
rejected out of hand, namely, that speech could be regulated
to equalize the voices of citizens. Buckley v. Valeo, supra,
at 48-49. Instead, without bothering to offer any elaboration,
much less justification, the majority permits vague and unenumerated
harms to suffice as a compelling reason for the government to
smother political speech.
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 10, n. 4. The fact is that the majority
ratifies a law with a much broader sweep than that approved in
Buckley. In Buckley, the Court upheld contribution limits of
$1,000 on individuals and $5,000 on political committees (in
1976 dollars). 424 U.S., at 28-29, 35-36. Here, by contrast,
the Court approves much more restrictive contribution limitations,
ranging from $250 to $1,000 (in 1995 dollars) for both individuals
and political committees. Mo. Rev. Stat. § 130.032.1 (Supp.
1999). The disparity between Missouri' s caps and those upheld
in Buckley is more pronounced when one takes into account some
measure of inflation. See Shrink Missouri Government PAC v. Adams,
161 F.3d 519, 523, and n. 4 (CA8 1998) (noting that, according
to the Consumer Price Index, a dollar today purchases about a
third of what it did in 1976 when Buckley was decided). Yet the
Court' s opinion gives not a single indication that the two laws
may differ in their tailoring. See ante, at 15 (Missouri' s caps
are "striking [in their] resemblance to the limitations
sustained in Buckley" ). The Court fails to pay any regard
to the drastically lower level of the limits here, fails to explain
why political committees should be subjected to the same limits
as individuals, and fails to explain why caps that vary with
the size of political districts are tailored to corruption. I
cannot fathom how a $251 contribution could pose a substantial
risk of "secur[ing] a political quid pro quo." Buckley
v. Valeo, supra, at 26. Thus, contribution caps set at such levels
could never be "closely drawn," ante, at 7 (quoting
Buckley v. Valeo, supra, at 25), to preventing quid pro quo corruption.
The majority itself undertakes no such defense.
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 17. See
also, e.g., ante, at 16 (claiming that candidates "' are
still able to amass impressive campaign war chests' "(quoting
Shrink Missouri Government PAC v. Adams, 5 F. Supp. 2d 734, 741
(ED Mo. 1998))). But the Court quickly deviates from Buckley,
persuading itself that Missouri' s limits do not suppress political
speech because, prior to the enactment of contribution limits,
"97.62 percent of all contributors to candidates for state
auditor made contributions of $2,000 or less." Ante, at
17. But this statistical anecdote offers the Court no refuge
and the citizenry no comfort. As an initial matter, the statistic
provides no assurance that Missouri' s law has not reduced the
resources supporting political speech, since the largest contributors
provide a disproportionate amount of funds. The majority conspicuously
offers no data revealing the percentage of funds provided by
large contributors. (At least the Court in Buckley relied on
the percentage of funds raised by contributions in excess
of the limits. 424 U.S., at 21-22, n. 23, 26, n. 27.) But whatever
the data would reveal, the Court' s position would remain indefensible.
If the majority' s assumption is incorrect-i.e., if Missouri'
s contribution limits actually do significantly reduce campaign
speech-then the majority' s calm assurance that political speech
remains unaffected collapses. If the majority' s assumption is
correct-i.e., if large contributions provide very little assistance
to a candidate seeking to get out his message (and thus will
not be missed when capped)-then the majority' s reasoning still
falters. For if large contributions offer as little help to a
candidate as the Court maintains, then the Court fails to explain
why a candidate would engage in "corruption" for such
a meager benefit. The majority' s statistical claim directly
undercuts its constitutional defense that large contributions
pose a substantial risk of corruption.[FOOTNOTE 10]
Given the majority' s ill-advised and illiberal aggregate
rights approach, it is unsurprising that the Court' s pro forma hunt
for suppressed speech proves futile. See ante, at 15-18. Such
will always be the case, for courts have no yardstick by which
to judge the proper amount and effectiveness of campaign speech.
See, e.g., Smith, Faulty Assumptions and Undemocratic Consequences
of Campaign Finance Reform, 105 Yale L. J. 1049, 1061 (1996).
I, however, would not fret about such matters. The First Amendment
vests choices about the proper amount and effectiveness of political
advocacy not in the government-whether in the legislatures or
the courts-but in the people.
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).
Missouri does assert that its contribution caps are aimed
at preventing actual and apparent corruption. Brief for Petitioners
26-28. As we have noted, "preventing corruption or the appearance
of corruption are the only legitimate and compelling government
interests thus far identified for restricting campaign finances."
National Conservative Political Action Comm., 470 U.S., at 496-497.
But the State' s contribution limits are not narrowly tailored
to that harm. The limits directly suppress the political speech
of both contributors and candidates, and only clumsily further
the governmental interests that they allegedly serve. They are
crudely tailored because they are massively overinclusive, prohibiting
all donors who wish to contribute in excess of the cap from doing
so and restricting donations without regard to whether the donors
pose any real corruption risk. See Colorado Republican, supra,
at 642 (Thomas, J., concurring in judgment and dissenting in
part) ("' Where First Amendment rights are involved, a blunderbuss
approach which prohibits mostly innocent speech cannot be held
a means narrowly and precisely directed to the governmental interest
in the small minority of contributions that are not innocent'
"(quoting Brief for Appellants in Buckley v. Valeo, O. T.
1975, Nos. 75-436 and 75-437, pp. 117-118)). See also Martin
v. City of Struthers, 319 U.S. 141, 145 (1943) (Though a method
of speaking may be "a blind for criminal activities, [it]
may also be useful [to] members of society engaged in the dissemination
of ideas in accordance with the best tradition of free discussion"
). Moreover, the government has less restrictive means of addressing
its interest in curtailing corruption. Bribery laws bar precisely
the quid pro quo arrangements that are targeted here. And disclosure
laws "' deter actual corruption and avoid the appearance
of corruption by exposing large contributions and expenditures
to the light of publicity.' "American Constitutional Law
Foundation, supra, at 202 (quoting Buckley v. Valeo, 424 U.S.,
at 67). In fact, Missouri has enacted strict disclosure laws.
See Mo. Stat. Ann. § § 130.041, 130.046, 130.057 (Supp.
1999).
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" ).
The same principles apply here, and dictate a result contrary
to the one the majority reaches. States are free to enact laws
that directly punish those engaged in corruption and require
the disclosure of large contributions, but they are not free
to enact generalized laws that suppress a tremendous amount of
protected speech along with the targeted corruption.
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.
Notes
1. 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).
2. Loper v. New York City Police Dept. 999 F.2d 699 (CA2 1993);
Sandul v. Larion, 119 F.3d 1250 (CA6 1997); One World One Family
Now v. Miami Beach, 175 F.3d 1282 (CA11 1999); East Hartford
Education Assoc. v. Board of Education of East Hartford, 562
F.2d 838 (CA2 1977).
3. 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
6), 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 6). 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" ).
4. Justice Stevens asserts that "[m]oney is property; it
is not speech," ante, at 1 (concurring opinion), and contends
that there is no First Amendment right "to hire mercenaries"
and "to hire gladiators," ante, at 2. 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 would-be payors remained free to use their money
in other ways. Id., at 418. We disagreed and held that "[t]he
refusal to permit appellees to pay petition circulators restricts
political expression" by "limit[ing] the number of
voices who will convey appellees' message and the hours they
can speak and, therefore, limits the size of the audience they
can reach." Id., at 422-423. In short, the Court held that
the First Amendment protects the right to pay others to help
get a message out. In other cases, this Court extended such protection,
holding that the First Amendment prohibits laws that do not ban,
but instead only regulate, the terms upon which so-called mercenaries
and gladiators are retained. See Riley v. National Federation
of Blind of N. C., Inc., 487 U.S. 781 (1988) (holding that
the First Amendment prohibits state restriction on the amount
a charity may pay a professional fundraiser); Secretary of State
of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984) (same). Cf.
also, e.g., Teachers v. Hudson, 475 U.S. 292 (1986) (opinion
of the Court by Stevens, J.) (holding that the First Amendment
restrains government-compelled exactions of money); Abood v.
Detroit Bd. of Ed., 431 U.S. 209 (1977) (same). In these cases,
the Court did not resort to Justice Stevens' assertion that money
"is not speech" to dismiss challenges to monetary regulations.
Instead, the Court properly examined the impact of the regulations
on free expression. See also, e.g., Federal Election Comm' n
v. National Conservative Political Action Comm., 470 U.S. 480
(1985) (First Amendment protects political committee' s expenditures
of money); Citizens Against Rent Control/Coalition for Fair Housing
v. Berkeley, 454 U.S. 290 (1981) (First Amendment protects monetary
contributions to political committee); First Nat. Bank of Boston
v. Bellotti, 435 U.S. 765, 769 (1978) (First Amendment protects
"spend[ing] money to publicize [political] views" ).
5. Even if contributions to a candidate were not the most effective
means of speaking-and contribution caps left political speech
"significantly unimpaired," ante, at 7-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" ).
6. Buckley' s approach to associational 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 7). 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, 58 (1973). "For even when
pursuing a legitimate interest, a State may not choose means
that unnecessarily restrict constitutionally protected liberty."
Id., at 58-59.
7. 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 6 (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 speech-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"
).
8. 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 "provid[e] no
basis for governmental restrictions on the quantity of campaign
spending" ).
9. 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.
10. 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 17. For example, the Court does not
bother to note that following the imposition of contribution
limits, total combined spending during primary and general elections
for five statewide offices was cut by over half, falling from
$21,599,000 to $9,337,000. See App. 24-28. Significantly, total
primary election expenditures in each of the races decreased.
Ibid. In fact, after contribution limits were imposed, overall
spending in statewide primary elections plummeted 89 percent,
falling from $14,249,000 to $1,625,000. Ibid. Most importantly,
the majority does not bother to mention that before spending
caps were enacted each of the 10 statewide primary elections
was contested, with two to four candidates vying for every nomination
in 1992. After caps were enacted, however, only 1 of the 10 primary
elections was contested. Overall, the total number of candidates
participating in statewide primaries fell from 32 to 11. See
ibid. Even if these data do not conclusively show that Missouri'
s contribution limits diminish political speech (although it
is undeniable that the data strongly suggest such a result),
they at least cast great doubt on the majority' s assumption
that the picture is rosy.
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