Buckley v. Valeo

You have to distinguish between an officer of the United States and a mere employee.

An officer, as defined in Buckley v. Valeo, is someone who exercises significant governmental authority pursuant to federal law and holds a continuing position.

A federal judge, an agency head, or a US attorney is an officer.

An employee, on the other hand, simply performs subordinate ministerial duties, like a mail carrier or a clerk.

First, we have to use the Appointments Clause to distinguish an officer of the United States from a mere employee.

According to Buckley v. Valeo, an officer is someone who exercises significant authority pursuant to the laws of the United States.

An employee is just a subordinate performing ministerial duties.

Among officers, the Constitution creates two categories-

I mean, absolutely nothing.

There's not a, I think it's fair to say not a single originalist decision came out of the Supreme Court between 1935 and 1976 when you had the Buckley v. Valeo decision.

Um, I mean, zero in 40 years.

So, you know, it really, um, times are bad.

Now, I don't like the idea of overturning New York Times versus Sullivan because as a political matter, I like New York Times versus Sullivan.

But the point is, if you are going to be an originalist, and apply your theory consistently, how does that same theory apply in the context of campaign finance jurisprudence? So when I read Justice Thomas talking about New York Times versus Sullivan saying that it was policymaking dressed up as constitutional law, my first reaction, I think I literally screamed this or yelled this as I was reading the opinion, I was like, have you read Buckley versus Valeo, which is this 144 page opinion not signed by any justice.

It's called a per curiam, which sets out this whole regime for how the First Amendment regulates regulation of campaign integrity.

never once explaining how its regime derives from the original meaning of the First Amendment.

...

Buckley versus Valeo, which was the first case before the Supreme Court that opened the, uh, bag of worms.

I mean, where, where I'm [laughs] opened, opened the can of worms, uh, in terms of money and politics.

Buckley versus Valeo was sponsored in large effect by big corporations, uh, as was every subsequent Supreme Court case dealing with money and politics.

Uh, and Buckley versus Valeo in 1976, and by then I was also in government, um, said, e- effectively, um, money is a form of speech.

Uh, a lot of people thought, "Wait, wait, money is not a form of speech.

How can money be a form of speech?" But you see how these things...

It is dense, and it's kind of bizarre that it would be dense, but that's the reality.

So it all begins fifty years ago exactly, in 1976, with a case by the United States Supreme Court called Buckley versus Valeo.

And Buckley was reviewing the statute Congress had passed, the F- the Federal Elections Campaign Act, after Richard Nixon was accused of all sorts of corrupt dealings.

And basically, three stories about Richard Nixon triggered Congress to pass this massive law that was trying to change the way money affected politics, and it was very ambitious.

It created presidential public funding, which elected every president between Carter and Obama.

So under Citizens United, there's a risk of corruption.

You should be allowed to regulate it.

So we think under the reasoning of Citizens United, which reaches back to the reasoning of Buckley, you ought to be allowed to impose limits on the size of contributions, even if you can't limit the spending that somebody does given whatever contributions they get.