           Buckley v. Valeo, 424 U.S. 1 (1976) 

                Commentary by Jon Roland

This decision and opinion is seen differently, as a defeat by campaign
finance reformers, and as a victory for First Amendment supporters, but
from the standpoint of original understanding, it is a major departure
from constitutional compliance. The Court sustained some parts of the
Act and not others:

     ... we sustain the individual contribution limits, the
     disclosure and reporting provisions, and the public
     financing scheme. We conclude, however, that the
     limitations on campaign expenditures, on independent
     expenditures by individuals and groups, and on
     expenditures by a candidate from his personal funds are
     constitutionally infirm. Finally, we hold that most of the
     powers conferred by the Act upon the Federal Election
     Commission can be exercised only by "Officers of the
     United States," appointed in conformity with Art. II, 2, cl.
     2, of the Constitution, and therefore cannot be exercised
     by the Commission as presently constituted.

However, the Constitution required them to strike the entire Act. Not
one provision of it is constitutional.

The opinion gives a clue as to how the Court went wrong:

     The constitutional power of Congress to regulate federal
     elections is well established and is not questioned by any of
     the parties in this case. Thus, the critical constitutional
     questions presented here go not to the basic power of
     Congress to legislate in this area, but to whether the
     specific legislation that Congress has enacted interferes
     with First Amendment freedoms or invidiously
     discriminates against nonincumbent candidates and minor
     parties in contravention of the Fifth Amendment.

Actually, the constitutional power of Congress to regulate federal
elections is extremely narrow, limited to the actual conduct of the
elections themselves. It does not extend to campaigning. The fact that
none of the parties challenged this point is testimony that no one was
tending to general constitutional compliance in this case. The Act most
certainly does infringe on First Amendment rights. Moreover, it not only
discriminates against nonincumbent candidates and minor parties, but
facilitiates suppression of unpopular candidates and causes by their
adversaries.

The Court got it right when they said:

     ... we have repeatedly found that compelled disclosure, in
     itself, can seriously infringe on privacy of association and
     belief guaranteed by the First Amendment. ...

     We long have recognized that significant encroachments on
     First Amendment rights of the sort that compelled
     disclosure imposes cannot be justified by a mere showing
     of some legitimate governmental interest.

The Court accepts the validity of the purposes of the Act, without
adequate analysis or evidence that it would actually operate to further
those aims, and not be counterproductive:

     First, disclosure provides the electorate with information
     "as to where political campaign money comes from and
     how it is spent by the candidate" in order to aid the voters
     in evaluating those who seek federal office. ...

     Second, disclosure requirements deter actual corruption
     and avoid the appearance of corruption by exposing large
     contributions and expenditures to the light of publicity. ...

     Third, and not least significant, recordkeeping, reporting,
     and disclosure requirements are an essential means of
     gathering the data necessary to detect violations of the
     contribution limitations....

The reality is that only political junkies who have already committed to
one candidate or cause know or care where the money comes from or
how it is spent. Disclosure deters nothing except contributions from
individuals who don't want to be harassed. Actual corruption is not done
in a way that disclosure requirements can reveal.

The Court recognized, but failed to appreciate the importance, of its
own precedent:

     In NAACP v. Alabama the organization had "made an
     uncontroverted showing that on past occasions revelation
     of the identity of its rank-and-file members [had] exposed
     these members to economic reprisal, loss of employment,
     threat of physical coercion, and other manifestations of
     public hostility," 357 U.S., at 462 , and the State was
     unable to show that the disclosure it sought had a
     "substantial bearing" on the issues it sought to clarify, id., at
     464. Under those circumstances, the Court held that
     "whatever interest the State may have in [disclosure] has
     not been shown to be sufficient to overcome petitioner's
     constitutional objections." Id., at 465. ...

     The court left open the question of the application of the
     disclosure requirements to candidates (and parties) who
     could demonstrate injury of the sort at stake in NAACP v.
     Alabama. No record of harassment on a similar scale was
     found in this case. We agree with the Court of Appeals'
     conclusion that NAACP v. Alabama is inapposite where,
     as here, any serious infringement on First Amendment
     rights brought about by the compelled disclosure of
     contributors is highly speculative. ...

     We are not unmindful that the damage done by disclosure
     to the associational interests of the minor parties and their
     members and to supporters of independents could be
     significant. These movements are less likely to have a
     sound financial base and thus are more vulnerable to falloffs
     in contributions. In some instances fears of reprisal may
     deter contributions to the point where the movement
     cannot survive. The public interest also suffers if that result
     comes to pass, for there is a consequent reduction in the
     free circulation of ideas both within and without the political
     arena. ...

There is nothing speculative about it. We have seen contributors
exposed to traffic tickets, tax audits, surveillance, wiretapping, more
stringent regulatory enforcement, nuisance lawsuits, boycotts, threats
from suppliers or customers to withdraw business, loss of employment,
vandalism, intimidation by strangers or officials, harassment of friends
and relatives, criminal prosecutions or threats thereof, and death threats.

The Court based its constitutional ruling on the evidence offered, rather
than on the argument from the Constitution:

     There could well be a case, similar to those before the
     Court in NAACP v. Alabama and Bates, where the threat
     to the exercise of First Amendment rights is so serious and
     the state interest furthered by disclosure so insubstantial
     that the Act's requirements cannot be constitutionally
     applied. But no appellant in this case has tendered record
     evidence of the sort proffered in NAACP v. Alabama. ...

     An approach that requires minor parties to submit evidence
     that the disclosure requirements cannot constitutionally be
     applied to them offers only an illusory safeguard, the
     argument goes, because the "evils" of "chill and harassment
     ... are largely incapable of formal proof."

But the Court offered a way for groups to argue that they should be
exempt from disclosure requirements:

     The evidence offered need show only a reasonable
     probability that the compelled disclosure of a party's
     contributors' names will subject them to threats,
     harassment, or reprisals from either Government officials or
     private parties. The proof may include, for example,
     specific evidence of past or present harassment of
     members due to their associational ties, or of harassment
     directed against the organization itself. A pattern of threats
     or specific manifestations of public hostility may be
     sufficient. New parties that have no history upon which to
     draw may be able to offer evidence of reprisals and threats
     directed against individuals or organizations holding similar
     views.

The Court seems unclear on a fundamental principle of rights theory:

A right is not complete unless it can be exercised in secret, and every 
recognition of a right is a recognition of the right to exercise it in 
secret. The reason for this is to protect the person not just from 
oppressive action by government, but also from private parties and political 
factions. This means persons have the rights to worship in secret; to speak 
and publish anonymously and in code; to peaceably assemble in secret; to 
petition anonymously (although a legal representative might need to be 
revealed to pursue the petition); to keep and bear arms in secret (although 
as militiamen may be required to maintain minimal military arms and other 
equipment); to hold property in secret (although taxable or regulatable 
commodities may be subject to inspection); and make financial transactions 
and contracts in secret (as long as they are not to commit unlawful acts, 
and they may need to be disclosed to be enforced by courts). Therefore, all 
legislative requirements for disclosure are unconstitutional. Disclosure may 
only be done through commodity inspection or due process, and then must meet 
a standard such as probable cause, and may be challenged for cause.

This general right of secrecy, sometimes called privacy, is balanced against 
the right of persons to know what they need to know to make lawful and law 
enforcement decisions, but the threshold of public need is high. It is 
established in the Sixth Amendment right to compulsory process for 
supporting testimony in criminal cases, in the Fourth Amendment right to be 
secure in one's premises, effects, and communications subject to a lawful 
search or arrest warrant, and in the Fifth Amendment right to not testify 
against oneself. However, there is one area that, while firmly grounded in 
theory, is not well established in current jurisprudence, and that is the 
right to protect others from unlawful demands for disclosure. The mere 
procedural predicate for such a demand is not sufficient. The disclosure 
demand must be constitutionally authorized. If it is not, one does not have 
a duty to comply with it, and likely the duty to resist it, especially if 
one has probable cause to expect that disclosure would endanger innocent 
persons.

The basis for all rights is not just an original claim to one's own 
enjoyment, but the social contract, which is very real and which establishes 
the duty to defend the members of one's society from threats to their 
rights, including one's own, as a member of the society. A duty entails the 
right to perform the duty, and all of the rights recognized by the 
constitution are based on the duty to exercise such rights in defense of the 
state and its constitution. The First Amendment may not have mentioned the 
duty to exercise the rights it recognizes, but the Second Amendment does, 
and the duty is implicit in the First as well. That is, we have a duty to 
worship, speak, publish, assemble, and petition in defense of the society. 
That does not mean the right may not also be exercised for one's one private 
benefit and enjoyment, but there is an implied state power to enforce the 
duty for every right except the rights to think, believe, and worship, and 
there is an enforceable duty to acquire the knowledge and skills needed to 
perform the other duties.

The Court goes seriously astray on one point:

     Appellants'"general welfare" contention erroneously treats
     the General Welfare Clause as a limitation upon
     congressional power. It is rather a grant of power, the
     scope of which is quite expansive, particularly in view of
     the enlargement of power by the Necessary and Proper
     Clause.

Nonsense. The Founders were clear. It is a limitation, not a grant of
power. 


