2
MCCUTCHEON v. FEDERAL ELECTION COMM’N
THOMAS, J., concurring in judgment
limits “operate in an area of the most fundamental First
Amendment activities” and “implicate fundamental First
Amendment interests.” 424 U. S., at 14, 23. But instead
of treating political giving and political spending alike,
Buckley distinguished the two, embracing a bifurcated
standard of review under which contribution limits receive
less rigorous scrutiny. Id., at 25.
As I have explained before, “[t]he analytic foundation of
Buckley . . . was tenuous from the very beginning and has
only continued to erode in the intervening years.” Shrink
Missouri, supra, at 412 (THOMAS, J., dissenting). To
justify a lesser standard of review for contribution limits,
Buckley relied on the premise that contributions are different in kind from direct expenditures. None of the
Court’s bases for that premise withstands careful review.
The linchpin of the Court’s analysis was its assertion that
“[w]hile contributions may result in political expression if
spent by a candidate or an association to present views to
the voters, the transformation of contributions into political debate involves speech by someone other than the
contributor.” 424 U. S., at 21. But that “ ‘speech by
proxy’ ” rationale quickly breaks down, given that “[e]ven
in the case of a direct expenditure, there is usually some
go-between that facilitates the dissemination of the
spender’s message—for instance, an advertising agency or
a television station.” Colorado I, supra, at 638–639 (opinion of THOMAS, J.). Moreover, we have since rejected the
“ ‘proxy speech’ ” approach as affording insufficient First
Amendment protection to “the voices of those of modest
means as opposed to those sufficiently wealthy to be able
to buy expensive media ads with their own resources.”
Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 495 (1985); see Shrink
Missouri, supra, at 413–414 (THOMAS, J., dissenting).
The remaining justifications Buckley provided are also
flawed. For example, Buckley claimed that contribution
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