The Supreme Court should strike down the limits that Congress placed on donations to candidates for federal office and that the court itself upheld in the 1976 Buckley v. Valeo case, says Ken Starr, who is working as a counsel in the case against the McCain-Feingold campaign finance law.
In both a panel discussion of campaign finance at the Cato Institute last week and a subsequent interview with HUMAN EVENTS, Starr, who is a former solicitor general and U.S. Court of Appeals judge, made a strong argument that, in reviewing the recent complex decision by a special five-judge court on McCain-Feingold, the Supreme Court should take “the logical step” and scrap any limitations on what individuals can give to candidates for federal office.
Recalling his days as law clerk to the late Chief Justice Warren Burger during the Buckley case, Starr said that, while a majority of the court upheld the power of Congress to set limits on contributions to federal candidates, Burger “issued a passionate dissent pointing out that contributing to political campaigns was an act of liberty and should be seen that way. To limit what one could give a candidate, he argued, was equal to limiting donations to the Community Chest or another charity.” In his dissent in Buckley-in which he was joined by Justice Harry Blackmun-Burger wrote that “limitations infringe on 1st Amendment liberties and suffer from the same infirmities that the court correctly sees in the expenditure ceilings.” (In Buckley, the court ruled that limitations on campaign expenditures, but not contributions, violated the 1st Amendment.)
Limiting contributions has limited the American political debate, Starr observed. “I also recall [former Minnesota Democratic Sen.] Gene McCarthys argument [in Buckley] that his insurgent campaign for President [in 1968, against fellow Democrat, President Lyndon B. Johnson] could not even have been launched had it not been for a few very wealthy backers giving him the venture capital to start up a race. He was like an inventor saying, I have ideas, but I need venture capital to make them happen.”
Despite these strong arguments, both Starr and fellow plaintiffs counsel Jan Baran conceded that overturning contribution limits has not been a major argument in the McCain-Feingold case and that the Supreme Court is unlikely to go that far when it decides the case. “I dont see it happening,” Starr said. “Not now, but it certainly is an intriguing argument for another case another day and should be pursued.” Noting that the issue of regulating political campaigns came out “of the 1960s and 70s,” Starr dubbed it “the last gasp of the command-and-control generation. Children of the information age who are coming of age have been exposed to the free market and realize that all they need to know about a candidates contributors is from disclosure. My state of Virginia, where an individual or a corporation can donate X-amount to a candidate, is the model for the future.”