David L. Hudson, Jr.: Thomas again calls for overruling of Buckley v. Valeo

  A sharply divided U.S. Supreme Court recently invalidated another campaign-finance restriction on First Amendment grounds in McCutcheon v. FEC.

  Eight of the nine justices evaluated the case under the Court’s seminal decision, Buckley v. Valeo (1976). Justice Clarence Thomas, however, once again reiterated his strongly held views that Buckley was wrongly decided.

  For the sixth time, Thomas wrote an opinion calling into question the viability of the Buckley decision, which drew a distinction between political contributions and political spending. Thomas views Buckley as unnecessarily restricting the right of the people and others to make political contributions.

  In his concurring opinion in McCutcheon, Thomas pulls no punches, writing that the Buckley decision "denigrates core First Amendment speech and should be overruled." He believes that the late Chief Justice Warren Burger was correct years ago in his separate opinion in Buckley when he reasoned that political contributions and expenditures were "two sides of the same First Amendment coin."

  Thomas fervently asserts that when an individual or corporation contributes money to a political candidate or campaign, that individual or entity is saying, "I support this political candidate." The contributing of money is core political speech, which should receive the highest protection in First Amendment jurisprudence.

  Others may criticize Thomas’ view for ignoring what they see as the corrupting influence of big money in political campaigns. But give Thomas credit for consistency. He has remained constant in his constitutional vision.

  It is not unusual for Thomas to advocate the overruling of precedents that he believes are inconsistent with the Constitution. He has argued for the overruling of the Court’s leading student-speech case, Tinker v. Des Moines Independent Community School District (1969); the Court’s leading commercial-speech test in Central Hudson Gas & Elec. v. Public Service Comm’n (1980); the Court’s prisoner-rights standard in Turner v. Safley (1987) and the incorporation of the establishment clause way back in Everson v. Bd. of Education (1947).

  "This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment," Thomas writes. "Until we undertake that reexamination we remain in a halfway house of our own design."

  Clearly, Justice Clarence Thomas continues to advocate his own constitutional design.

  About the author: David L. Hudson Jr. is an expert in First Amendment issues who writes for Firstamendmentcenter.org and for other publications.

  This article was published by the First Amendment Center.