J. SKELLY WRIGHT’S DEMOCRATIC FIRST AMENDMENT

Abstract

In Buckley v. Valeo, a 1976 challenge to the post-Watergate Federal Election Campaign Act (FECA), the Supreme Court set out a framework for evaluating campaign finance regulation that has survived to the present day. The Buckley Court held that campaign finance regulations trigger First Amendment scrutiny because of the significant role that money plays as a tool of communication in modern society. The Court then recognized only one government interest important enough to justify spending limits—preventing corruption or the appearance of corruption. And, perhaps most significantly, the Court rejected the argument that the government has any compelling interest in equalizing the relative ability of individuals and groups to influence elections. As a judge on the D.C. Circuit, J. Skelly Wright participated in the drafting of the per curiam decision in Buckley upholding FECA, the reasoning of which the Supreme Court ultimately rejected. He was then one of the earliest and most persuasive critics of that decision. Wright recognized that at stake in Buckley were not just competing ideas about constitutional meaning, but also competing understandings of how our democracy works. More importantly, he focused on that question as central, not peripheral, to the First Amendment analysis. That insight—that our campaign finance jurisprudence plays an important role in imagining and instantiating our democracy— has, for decades, received little explicit discussion in the Court’s case law. As a result, we live in a world in which the rules of the game are set by people who purport to have no interest in how it is played—and even less in its winners and losers. As Burt Neuborne has explained, ours is “an accidental democracy, built by judges.” The Court has maintained this outward disinterest even as, by many accounts, our democracy has gone off the rails. Turnout levels are comparatively low in the highest profile presidential races and abysmal in most others. Public confidence in all branches of government is at a historic low. Political polarization has produced sequential deadlocked Congresses. And perhaps most significantly, new research indicates that the preferences of most Americans have almost no influence on federal policy; instead, our political system reflects the beliefs and desires of the top one percent, or the “donor” class. Nonetheless, this past term in McCutcheon v. FEC, the Roberts Court for the seventh consecutive time considered and rejected a limit on electoral spending as inconsistent with the First Amendment. The actual holding of McCutcheon was narrow; the aggregate contribution limit, which capped the amount that any single donor could give to federal candidates and parties at $123,200 during a single election cycle, was struck down. Still, the case generated public outrage because it confirmed the Roberts Court’s commitment to using the First Amendment to block government limits on electoral spending, even as the destructive consequences of a system of elections financed disproportionately by wealthy donors have become increasingly apparent. McCutcheon has prompted calls for rethinking the constitutional jurisprudence regulating money in politics, but the question is how. Despite its unpopularity, the basic Buckley structure has proven remarkably resilient, in part because there is no consensus about how to replace it. My goal in this brief essay is not to propose a replacement for Buckley, but to suggest that Judge Wright’s early approach was the right one. Rather than tinkering around the margins of an increasingly limited doctrine, we should be talking explicitly about the purpose of First Amendment rights in the context of the kind of democracy we want to have. I start therefore by outlining Wright’s critique of the democratic vision in Buckley. I then suggest that his key insight—that arguments about campaign finance doctrine are actually constitutive conversations about the shape of our democracy—was lost in the years between Buckley and McCutcheon, as the advocacy focused in on parsing definitions of corruption. The results of this limited focus were twofold. First, definitions of corruption proved slippery and malleable, easily revised to suit the preferences of the reigning Court majority. Second, and perhaps more importantly, the public conversation about campaign finance regulation became fixated on the role of the First Amendment in monitoring government’s failings— rather than articulating a positive role of these rights in enabling and enhancing our project of self-government. These are the conditions under which the Roberts Court was able to transform the First Amendment into a deregulatory device that works to disable government rather than build it. I conclude by arguing that we should return to Wright’s approach of connecting the doctrine with its purpose, and I suggest that Justice Breyer’s dissent in McCutcheon is an important first step in that direction.