BUCKLEY v. VALEO
1
Opinion of BURGER,
C. J.
or the separation of civilian and military authority, see
Orloff v. Willoughby, 345 U. S. 83, 93-94 (1953), neither
of which is explicit in the Constitution but both of which
have developed through case-by-case adjudication of express provisions of the Constitution.
Recent history shows dangerous examples of systems
with a close, "incestuous" relationship between "government" and "politics"; the Court's opinion simply dismisses possible dangers by noting that:
"Subtitle H is a congressional effort, not to abridge,
restrict, or censor speech, but rather to use public
money to facilitate and enlarge public discussion and
participation in the electoral process, goals vital to a
self-governing people." Ante, at 92-93.
Congress, it reassuringly adds by way of a footnote,
has expressed its determination to avoid such a possibility. 5 Ante, at 93 n. 126. But the Court points to
no basis for predicting that the historical pattern of
"varying measures of control and surveillance," Lemon
v. Kurtzman, supra, at 621, which usually accompany
grants from Government will not also follow in this
case. 6 Up to now, the Court has always been extraordinarily sensitive, when dealing with First Amendment
rights, to the risk that the "flag tends to follow the
dollars." Yet, here, where Subtitle H specifically requires the auditing of records of political parties and
candidates by Government inspectors," the Court shows
'- Such considerations have never before influenced the Court's
evaluation of the risks of restraints on expression.
16 The Court's opinion demonstrates one such intrusion. While
the Court finds that the Act's expenditure limitations unconstitutionally inhibit a candidate's or a party's First Amendment rights, it
imposes, by invoking the severability clause of Subtitle H, such
limitations on qualifying for public funds.
17 See, e. g., 26 U. S. C. §§ 9003, 9007, 9033, 9038 (1970 ed., Supp.
IV).
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