Students of campaign finance learn early on that contribution limits are subjected to less judicial scrutiny, and therefore generally upheld by the courts, while spending limits are subject to the highest judicial scrutiny, and consistently struck down by the Courts. Bob Bauer and David Gans have been going back and forth on this, and their exchange is well worth reading. While the contribution/expenditure dichotomy serves a purpose as legal shorthand (sort of like the claim that Buckley says money is speech, which it doesn’t), it has, as Bauer notes, always oversimplified a complex issue. What’s interesting to me is that the reform camp generally consist of liberals who tend to favor a “living constitution” and bridles whenever the free-speech camp, which generally consists of conservatives who tend to take historical or textual approaches to interpretation, says, “Congress shall make no law… .” Yet the reform camp is in totally in a formalistic rut on this one, even after getting kicked around a bit by the courts in recent years.
The Meaning of Corruption in Campaign Finance Law, and Buckley’s Contribution/Expenditure Distinction
