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Profile: Burt Neuborne

Burt Neuborne was a participant or observer in the following events:

The Supreme Court case Buckley v. Valeo, filed by Senator James L. Buckley (R-NY) and former Senator Eugene McCarthy (D-WI) against the Secretary of the Senate, Francis R. Valeo, challenges the constitutionality of the Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) on free-speech grounds. The suit also named the Federal Election Commission (FEC) as a defendant. A federal appeals court validated almost all of FECA, and the plaintiffs sent the case to the Supreme Court. The Court upholds the contribution limits set by FECA because those limits help to safeguard the integrity of elections. However, the court overrules the limits set on campaign expenditures, ruling: “It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions… limit political expression at the core of our electoral process and of First Amendment freedoms.” One of the most important aspects of the Supreme Court’s ruling is that financial contributions to political campaigns can be considered expressions of free speech, thereby allowing individuals to essentially make unrestricted donations. The Court implies that expenditure limits on publicly funded candidates are allowable under the Constitution, because presidential candidates may disregard the limits by rejecting public financing (the Court will affirm this stance in a challenge brought by the Republican National Committee in 1980).
Provisions of 'Buckley' - The Court finds the following provisions constitutional:
bullet Limitations on contributions to candidates for federal office;
bullet Disclosure and record-keeping provisions; and
bullet The public financing of presidential elections.
However, the Court finds these provisions unconstitutional:
bullet Limitations on expenditures by candidates and their committees, except for presidential candidates who accept public funding;
bullet The $1,000 limitation on independent expenditures;
bullet The limitations on expenditures by candidates from their personal funds; and
bullet The method of appointing members of the FEC, holding that as the method stands, it violates the principle of separation of powers.
In May 1976, following the Court’s ruling, the FEC will reconstitute its board with six presidential appointees after Senate confirmation. (Federal Elections Commission 3/1997; Federal Elections Commission 1998; Campaign Finance Timeline 1999; Center for Responsive Politics 2002 pdf file; Casebriefs 2012)
No Clear Authors - The opinion is labeled per curiam, a term usually reserved for brief and minor Court decisions when authorship of an opinion is less relevant. It is unclear exactly which Justices write the opinion. Most Court observers believe Justice William Brennan writes the bulk of the opinion, but Brennan’s biographers will later note that sections of the opinion are authored by Chief Justice Warren Burger and Justices Potter Stewart, Lewis Powell, and William Rehnquist. The opinion is an amalgamation of multiple authors, reflecting the several compromises made in the resolution of the decision. (Toobin 5/21/2012)
Criticism of 'Buckley' - Critics claim that the ruling enshrines the principle of “money equals speech.” The ruling also says that television and radio advertisements that do not expressly attack an individual candidate can be paid for with “unregulated” funds. This leads organizations to begin airing “attack ads” that masquerade as “issue ads,” ostensibly promoting or opposing a particular social or political issue and avoiding such words as “elect” or “defeat.” (National Public Radio 2012) In 1999, law professor Burt Neuborne will write: “Buckley is like a rotten tree. Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.” Neuborne will write that his preference goes towards reasonable federal regulations of spending and contributions, but “any change would be welcome” in lieu of this decision, and even a completely deregulated system would be preferable to Buckley’s legal and intellectual incoherence. (Liptak 5/3/2010) In 2011, law professor Richard Hasen will note that while the Buckley decision codifies the idea that contributions are a form of free speech, it also sets strict limitations on those contributions. Calling the decision “Solomonic,” Hasen will write that the Court “split the baby, upholding the contribution limits but striking down the independent spending limit as a violation of the First Amendment protections of free speech and association.” Hasen will reflect: “Buckley set the main parameters for judging the constitutionality of campaign finance restrictions for a generation. Contribution limits imposed only a marginal restriction on speech, because the most important thing about a contribution is the symbolic act of contributing, not the amount. Further, contribution limits could advance the government’s interest in preventing corruption or the appearance of corruption. The Court upheld Congress’ new contribution limits. It was a different story with spending limits, which the Court said were a direct restriction on speech going to the core of the First Amendment. Finding no evidence in the record then that independent spending could corrupt candidates, the Court applied a tough ‘strict scrutiny’ standard of review and struck down the limits.” (Hasen 10/25/2011) In 2012, reporter and author Jeffrey Toobin will call it “one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.” (Toobin 5/21/2012)

President Reagan declares that he believes the four defendants in the Iran-Contra trial (see March 16, 1988) are not guilty of any crimes. Two former National Security Council officials, John Poindexter and Oliver North, and two arms dealers, Richard Secord and Albert Hakim, face multiple charges in the indictments. Reagan says he thinks of North as a hero and has difficulty believing the Iran-Contra affair was a scandal. “I just have to believe that they’re going to be found innocent because I don’t think they were guilty of any lawbreaking or any crime,” he says. “I still think Ollie North is a hero. On the other hand, any talk about what I might do about pardons and so forth, I think, with the case before the courts, that’s something I can’t discuss now.” Law professor Burt Neuborne says that Reagan’s comments are “inappropriate.” Neuborne says: “When you have people charged with a serious violation of the law it is inappropriate for the president to applaud them and call them heroes.… If you have a president who is not willing to enforce the law, you would never be able to enforce it without the special prosecutor.” An administration official says that in the aftermath of Reagan’s remarks, some White House aides are probably “all cringing.” A senior White House official says, “The rest of us have been told not to comment on the indictments.” Reagan’s domestic policy adviser Gary Bauer says that Reagan’s remarks reflect “what a good number of Americans still believe.… Clearly, it was something from the heart.” Vice President Bush has joined Reagan in expressing his admiration for North, saying, “I think anybody who sheds blood for his country and wins a Purple Heart, three of them, and a Silver Star, deserves whatever accolades one gets for that kind of stellar, heroic performance.” According to recent polls, only 21 percent of Americans believe North is a hero. (Johnson 3/26/1988)


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