I am coming late to this discussion but is the Court with the Vermont case on the verge of rethinking its views on campaign financing that have more or less held since Buckley?  Perhaps yes, but there is a good reason for it and it gets at the nature of the Buckley opinion and what has empirically transpired in the eight presidential elections and numerous Congressional elections since then.

Recall that the Buckley Court ruled on the 1974 FECA amendments in early 1976.  At the time the decision was issued no federal election had taken place under them and therefore there was no way to judge what their likely or real impact would be.  However, when the Court rule din that case, the Court stated, as I pointed out in a Journal of Law and Politics article, that with regards to independent expenditures that they do "not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions." (424 U.S. at 46)  

Second, the per curiam opinion also asserted that "independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove to be counterproductive." (424 U.S. at 47).  In making these two claims the Court held out the possibility that at some point independent expenditures may be restricted if evidence could be provided that they posed dangers of corruption or its appearance and, two , if it could be shown that such expenditures had some impact or assistance to a candidate campaign then some restrictions might be permissible.   However, circa 1976, no evidence had been presented to the Buckley Court to demonstrate either.

My point is that along with independent expenditures, no evidence had been gathered on the likely impact the 74 FECA amendments on spending limits would have had because they were invalidated before they could take affect.  Perhaps escalating campaign spending and other factors that subsequent elections have yielded may influence how Justices think about limits on spending.

If Holmes is correct, the life of law is not simply logic but experience and maybe changing empirical conditions regarding campaigns will fuel a changed attitude on the Court with regards to spending limits.

David Schultz, Professor
Hamline University
Graduate School of  Management
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