Professor Joel Gora Looks Back at His Role in Supreme Court Case Buckley v. Valeo 50 Years Later

One of the reasons the ruling is so important, and controversial among some critics, is because the Court ruled that, in a political context, free speech requires money and therefore limits on political funding are limits on political speech. The implications resonate today, and the anniversary of the 1976 ruling has drawn the media spotlight to the case and Gora, who is retiring at the end of this school year after teaching Constitutional Law, Civil Procedure, and related classes at Brooklyn Law School for 48 years. He was a panelist last week as part of the Institute for Free Speech’s content series reflecting on the case’s history and enduring legacy, and will be the keynote speaker at a Federalist Society luncheon titled, "Buckley v. Valeo at 50: The Past and Future of Free Political Speech."  

Here, the professor reflects on the historic case.  

A Supreme Court Initiation 

Although Gora has worked on more than 100 U.S. Supreme Court cases during his decade as a full-time attorney at the ACLU and beyond, the crisp fall day on Nov. 10, 1975, when he was one of seven lawyers standing before the justices in Buckley v. Valeo still stands out. It was his first Supreme Court argument, and the courtroom was packed with prominent lawmakers and political figures. The court had set aside an entire day, two hours in the morning, and two in the afternoon, to hear the case, an unusually long hearing that spoke to the importance of the case and having a decision made before the 1976 presidential and congressional elections. As the hearing got underway, the nine justices made a dramatic entrance, emerging from behind heavy red velvet curtains to assemble at the bench.  

"One of the lawyers from our team was a Yale Law School Professor named Ralph Winter, who would later become a highly respected Chief Judge of the U.S. Court of Appeals for the Second Circuit and a member of the Board of Trustees of Brooklyn Law School. Winter went first, and he started to make our arguments about why limiting money is limiting speech, and all of a sudden, many of the justices seemed to be agreeing with him," Gora recalled. "Then, when the government lawyer got up to argue against our claim, the justices started pelting him with a lot of different questions… We had lost badly in the lower court and suddenly, the Supreme Court justices, many of them, were asking the questions we believed you had to ask and producing the points we wanted to make."  

When it was Gora’s turn, his nervousness eased after he stepped up to the podium and realized how close he actually was to the Justices, almost like being in a seminar. He proceeded to argue against mandatory campaign finance disclosures by political parties and candidates. "I was asked some tough questions, and I tried to answer them as best I could. But then before long, it was time for a break, and we went down to the cafeteria for a quick lunch. We were almost giddy, because we thought, my goodness, finally, somebody's listening to us. We do not know if we will win or lose, but they are listening."

The Strange Bedfellows Coalition 

Buckley v. Valeo centered around the 1971 Federal Election Campaign Act (FECA), and 1974 amendments to the act, which were enacted by Congress in partial response to the Watergate scandal and President Richard Nixon’s resignation. They were designed to impose massive new restrictions and prohibitions on campaign funding with the intent to avoid corruption, or even its appearance, and to “level the playing field.” But the First Amendment defenders, including the ACLU, saw a dark side to the legislation.  

"This was a big case about major, deep changes in campaign finance, all limiting changes," Gora recalled. "Other than for the first time providing public financing of presidential campaigns, which was a partial plus, everything else was a minus. It was limits, limits, limits, disclosure, disclosure, disclosure. It just made it harder to speak about politics, beyond just standing on the street corner using your own voice."  

One of the fundamental problems, from the ACLU’s perspective, was that the government and Congress, beneficiaries of campaign financing, were writing the rules for how much money would flow, and how. "The commission they set up was in the hands of Congress. Four of the six members were appointed by the House and Senate, and the other two by the President, and it was like having the fox in the chicken coop, because there was such an inherent conflict of interest in having the politicians who live and die by these rules also write these rules," Gora said.   

That conflict inspired the ACLU to be part of what Gora called a "strange bedfellows coalition" of unlikely partners, all pushing against campaign finance changes that would impose deeper restrictions on campaign spending. The lead plaintiff was then-Senator James Buckley, a conservative, who was joined by Senator Eugene McCarthy, a Democrat, both of whom had won office as political outsiders. They were joined by others from both sides of the political spectrum, all "going against the establishment," Gora said. Most members of Congress supported campaign finance restrictions, because as incumbents they benefited from all the perks of office, including name recognition. Opponents would need deep pockets to defeat them on Election Day.  

Citizens United v. Federal Election Commission  

When the Buckley decision was handed down on Jan. 30, 1976, it was somewhat of a split decision. Most importantly to the ACLU, it asserted that campaign expenditures, or money that is spent on influencing voters, was a type of free speech and should not be restricted. But the court upheld Congress’ ability to impose contribution limits on direct contributions to candidates in political campaigns, setting the stage for the campaign finance reform debates that we still have today.  

"Maybe the court deciding Buckley felt it was like a good compromise so they would not be seen as throwing everything out," Gora said. "We've been living with the consequences of that ever since with all the super PACs and soft money." 

Buckley’s limit on direct contributions to candidates opened the door to campaigns being financed by Political Action Committees (PACs), which could support a candidate with contributions of $5,000 compared to individuals who could only donate $1,000. Corporations and unions could not donate to candidates or PACs at all. Since then, the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, building on the precedent of Buckley, ruled that corporations and unions, like people, could make unlimited independent expenditures, fully disclosed, supporting or opposing candidates.   

Where Buckley used to be the whipping boy of campaign finance reform advocates, experts say Citizens United has taken its place. Gora has a different perspective on Citizens United.  

"When you say corporations shouldn't be allowed to spend all this money, everybody thinks of General Motors and Exxon. But there are somewhere in the range of six or seven million corporations in America from Exxon to mom-and-pop grocery stores that are incorporated," he said, adding that even nonprofits, like the ACLU, are incorporated, so the debate is more complicated than it seems. "All of those groups were prohibited from making independent expenditures for or against federal candidates, an enormous blanket of silence which the Court called 'censorship vast in its reach.' I heartily concur!"   

At the time that Gora retires from full-time teaching in 2026, he will have spent 60 years engaging with the Constitution, and looking back at Buckley has been a learning experience and a pleasure. "I'm very grateful and blessed that I have good enough health to still be around and teaching and talking about this case from 50 years ago," Gora said.

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