The Libertarian Review March 1980 - Libertarianism.org

36and Justice William O.Douglas took great care inlaying out all the elements ofeach case in his writtenopinions in qrder to reachthe general public, althoughhe rarely tried to persuadehis colleagues in conference.The Brethren takes thereader through the firstseven terms of the BurgerCourt (a term begins in Octoberand runs through thefollowing spring) but discussesthe deliberations surroundingonly a small numberof the more than 1,000opinions issued by the Courtduring that period. What aperiod it was! The Court issuedcontroversial opinionson abortion, the death penalty,antitrust actions, busing,women's rights underthe Fourteenth Amendment,obscenity, campaign financing,prior restraint of publications(the Pentagon Paperscase), and executiveprivilege (the Nixon Tapescase), among others.The case involving campaignfinancing, Buckley v.Valeo, which came beforethe Court in the 1975 term,is the case in which the LibertarianParty joined severalother representatives ofminority political viewpoints,including SenatorJames M. Buckley andformer presidential candidateEugene McCarthy, inchallenging the 1974 federalcampaign law, which providedfor the financing ofmajor presidential campaignsfrom tax money,mandated public reportingof expenditures and of contributors'names, limitedpolitical contributions to$1000, and also listed theamounts that candidatescould spend on their campaigns.At conference, Burger acceptedthe challengers) arguments thatthe law, masquerading as a reform,really struck at the heartof First Amendment freedoms.To limit contributions and expenditureswas to curtail politicalactivity and speech. To forcedisclosure of contributors)names was a violation of theirprivacy and their right ofpoliti-THE LIBERTARIAN REVIEWChiefJustice Warren E. Burger with former Supreme CourtJustice Tom Campbell Clark, who retiredfrom the Court in 1967 when his son, Ramsey Clar~, was appointed Attorney General.cal association. Public financingof presidential campaignswould open the door to governmentinterference in thepolitical process. Burger said hewould vote to strike the entirelaw.The other seven Justices[William O. Douglas had justretired and had not yet been replaced]seemed to favor majorportions of the law, thougheach had a reservation aboutone or more of the provisions.But the majority upheld most ofthe law including the section onpublic financing of presidentialcampaigns.A committee ofthree Justices(William J. Brennan,JL, Potter Stewart, andLewis F. Powell, JL) wasformed to collaborateIon anunattributed opinion inorder to get the case decidedbefore the first scheduleddisbursement of public moneyto candidates, which wasabout six weeks away. Itupheld every provision ofthe law except the limits onwhat candidates couldspend. But Douglas, whohad been a member of theCourt when the oral argumentshad been heard on thecase, decided that he too wasentitled to write an opinion.He came back to his oldchambers and circulated' athirteen-page memorandumwhich discussed both theFederal Election CampaignAct cases and his right tocontinue to participate inCourt decisions under thelaw that provided for retiredJustices, telling one of hisformer clerks that he intendedto publish the memoas a dissent. It was printedand circulated to the otherJustices, but never releasedto the public-the final decision,"with separate concurrencesand dissents byeveryone except Brennan,Stewart and Powell," wasreported as the work of aneight-man Court.In this memo, Douglasagreed with those who hadchallenged the law (andalso, for a rare time in hislife, with Burger) that p rd~viding public money topopular candidates helpedkeep the incumbent party inpower. He also was concernedabout the spendingand contribution limits. In apassage that could havebeen referring to the LibertarianParty itself, he wrote,History shows that financialpower and political powereventually merge and unite todo their work together.... Thefederal bureaucracy at the presenttime is effectively under thecontrol of the corporate andmoneyed interests ofthe nation.A new party formed to oust thehold that the corporate and financialinterests have is presentlyby the terms of this actunqualified to get a dime.It may interest libertarianreaders that in their accountof this challenge to the FederalElection Campaign Act,Woodward and Armstrongnowhere mention the LibertarianParty.The book is harshest in its