The Untold Drafting History of Buckley v. Valeo

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241 ALTHOUGH SCHOLARS have explored innumerable aspects of the Supreme Court’s landmark opinion in the 1976 campaign finance case of Buckley v. Valeo,1 one area left virtually unexplored is the case’s drafting history. The speed with which the Court worked and the heft of the opinion it produced are extraordinary. Between the time the Court heard argument on November 10, 1975 and the time the Court issued its opinion on January 30, 1976, members of the Court produced an unsigned (per curiam) opinion extending over 138 pages in the U.S. Reports. In addition, five of the eight justices hearing the case (Justice Stevens, new to the Court, did not participate) added concurring and dissenting opinions totaling an additional 83 pages. The Buckley opinion considered the constitutionality of various aspects of the 1974 amendments to the Federal Election Campaign Act (FECA). It upheld the FECA’s limits on campaign contributions against First Amendment challenge, but it struck down limits on campaign expenditures, including a provision barring an individual from spending more than $1,000 relative to a clearly identified candidate for federal office (the independent expenditure provision). The Court also upheld the FECA’s provisions mandating disclosure of campaign funding and it upheld a system for the voluntary public financing of presidential elections, but it struck down the means for selecting members of the Federal Election Commission (FEC) as violating the separation of powers established by the Constitution. For over 25 years, Buckley has remained the benchmark by which the constitutionality of campaign finance laws is measured.2 Things may or may not change when the Court faces its most important campaign finance case in a generation, a review of the new Bipartisan Campaign Reform Act of 2002 (BCRA).3 Indeed, a look at how the Court drafted Buckley may shed light on how the Court will draft its new campaign finance opinion; both the FECA and BCRA are extremely complex statutes and both cases involve the Court crafting rules for an upcoming presidential election season. This time, of course, the Court will not be writing on a clean slate, but will have 25 years of postBuckley jurisprudence to consider. Prior works have explored Buckley’s drafting in a cursory fashion,4 with some authors