James L. Buckley: I’m delighted to join in celebrating the 25th anniversary of Buckley v. Valeo, and not just because it has assured me a measure of immortality. It is an unusual case in that everyone on both sides of the current campaign finance reform debate agrees that the Supreme Court’s rulings were at least half right. The disagreement lies over which half of them were right. One camp accepts the Court’s limits on contributions but urges the reinstatement of spending caps—even if this requires a constitutional amendment subjecting political speech, if not pornography, to government regulation. The enlightened camp, which boasts such articulate members as the American Conservative Union and the American Civil Liberties Union, applauds the rejection of spending caps but would replace those on contributions with the instant disclosure of who gave what to whom and let the public draw its own conclusions.
What distinguishes the campaign finance issue from just about every other one being debated these days is that the two sides do not divide along conventional liberal/conservative lines. Rather, as one of our lawyers, John Bolton, pointed out in a perceptive article a year or two ago, the argument is essentially between political insiders and political outsiders, as exemplified by the ideologically disparate group that joined Sen. Eugene McCarthy and me in challenging the constitutionality of the Campaign Reform Act of 1974. What we had in common was a concern that its restrictions on spending and giving would effectively squeeze independent voices and political reform movements out of the political process by making it even more difficult than it already was to raise effective challenges to the political status quo. The legislation was, in fact, so notoriously one‐sided in this respect that it became known as the Incumbent Protection Act.
In rendering its decision in our case, the Supreme Court equated money with speech because these days it takes the first to make yourself heard. As a consequence, the Court ruled that the limits on campaign spending violated the First Amendment, but it accepted the $1,000 limit on individual contributions on the ground that the need to avoid the appearance of corruption justified this limited constraint on speech. The Court made an exception, however, in the case of candidates contributing to their own campaigns because of the rather reasonable presumption that a candidate is incapable of corrupting himself. And so, in the aftermath of Buckley, we have been left with a system that has enhanced the power of the most privileged players in the political game—the two major parties, trade associations and trade unions, the establishment media, and candidates who are wealthy enough to finance their own campaigns.
So it is not surprising that there should be a cry for reform because reform is so clearly needed. But the question arises, who defines reform? Unfortunately, the media, which are not at all reluctant to act in their own self‐interest, have succeeded in equating reform in the public mind with further restrictions on just about everyone else’s freedom of political speech.
I had hoped that the current presidential campaign debates might educate the public as to what is really involved in the ongoing controversy over campaign financing. But although Senators Bradley and McCain have proposed new limits on contributions to political parties and new restrictions on independent political speech, none of their opponents has risen in defense of the First Amendment and its intended guarantee of free and open political debate, none has questioned the premise that money necessarily corrupts the political process. The best that one of the Republican candidates has been able to do is chastise Senator McCain for trying to eliminate a major source of Republican Party financing‐hardly an appeal to our loftiest ideals.
The kind of corruption the media talk about, the kind the Supreme Court was concerned about, involves the putative sale of votes in exchange for campaign contributions. But virtually every study of actual voting patterns suggests that this occurs far too rarely to warrant the distortions of the political process that are the product of the present law. What people fail to appreciate is that the currency of corruption in elective office is, not money, but votes. Witness, for example, the extraordinary leverage exercised by Iowa farmers during the quadrennial caucus season and, it seems, by the Miami Cuban community in just about any season.
This source of corruption, alas, is inherent in the democratic system itself, and it can only be controlled, if at all, by finding ways to encourage legislators to subordinate ambition to principle. The oath of office required by the Constitution represents one such attempt. Before taking office, members of Congress must swear that they will support the Constitution and faithfully discharge the duties of the office they are about to assume, which duties presumably include the duty to vote one’s conscience. Unfortunately, in today’s world we have to be reminded that the power of an oath derives from the fact that in it we ask God to bear witness to the promises we make with the implicit expectation that He will hold us accountable for the manner in which we honor them. This understanding of the meaning of an oath is as old as our civilization. In a passage on the role of religion in the Roman Empire, Edward Gibbon noted that the Roman magistrates “respected as the firmest bond of society, the useful persuasion that, either in this or in a future life, the crime of perjury is most assuredly punished by the avenging gods.”
I suspect there are few positions in public life in which it is easier to keep faith with an oath of office than the one I now occupy. Thanks to life tenure and the cloistered environment in which appellate judges work, none of us is exposed to the temptations to depart from perceived duty that routinely confront our senators and representatives. I am persuaded that in the case of elected officials, the overwhelming temptation is to conclude that it is more important for your constituents that you be reelected than that you deal honestly with them. Hence the frequency with which legislators will yield to political pressures or expediency and vote against their convictions, especially when they can salve tender consciences by persuading themselves that a principled vote would not have affected the outcome. Given the difficulty of resisting such temptations over the longer run, a proper concern for the welfare of congressional souls may well be the ultimate argument in favor of term limitations.
In the last analysis, of course, an oath will encourage fidelity in office only to the degree that officeholders continue to believe that they cannot escape ultimate accountability for a breach of faith. In a footnote to the passage I quoted earlier, Gibbon observed that by the beginning of the second century a.d., the poet Juvenal would lament that the Roman world had lost the fear of punishment in the afterlife that had given oaths their special force. I suspect the same may now be said of our world. It seems that cheating no longer raises eyebrows, whether committed in a schoolroom or in bed, and such words as “sin” and “honor” and “virtue” sound quaint as we discard standards of behavior that have been rooted in our society since the founding of the Republic. Moreover, we are showing a dismaying tendency to recast God in Man’s image. If enough people openly engage in conduct once considered reprehensible, we rewrite the rule book and assume that God, as a good democrat, will go along.
It would seem, therefore, that this constitutional safeguard may no longer serve its original purpose, especially when, as we learned last year, some acts of perjury may now be acceptable—in this world, at least, if not the next. Under the circumstances, may I suggest another means of encouraging probity in elective office. I refer to term limitations, which can serve ends beyond that of saving congressional souls. Once it becomes impossible for members of Congress to make a career of legislative service, the temptation to bend a vote for whatever reason may yield to the better angels of their nature. They may then be willing to cast principled votes based on an educated understanding of the public interest in the face of polls suggesting that the public itself may have quite a different understanding of where its interest lies.
I reached this conclusion toward the end of my service in the Senate, and I have observed nothing since then that has done other than reinforce my conviction that, under today’s conditions, nothing short of term limitations can be counted upon to liberate the best in the very fine men and women who continue to be elected to Congress. Our old tradition of citizen legislators was a great one, and I recommend term limitations to both the ACU and the ACLU as another cause in which they may confidently cooperate.
This article originally appeared in the March/April 2000 edition of Cato Policy Report.