By the Court On the face of it, the Supreme Court’s 6-3 decision on campaign finance, handed down early this week, was a routine reaffirmation of the status quo-the Justices’ 1976 Buckley vs. Valeo precedent, an exercise in constitutional baby-splitting that once seemed elegant to some of us but that has, in practice, made an awful mess of things. But the Jan. 24 ruling touched off noisy celebrations among self-styled campaign finance law reformers who detest the status quo. This was partly spin on their part, of course. But the decision did reflect subtle movement in the reformers’ direction by some Justices, at least three of whom openly invited tighter campaign finance restrictions.

The ruling in Nixon vs. Shrink Missouri Government PAC removed all doubt about the constitutionality of rather strict caps on contributions to candidates for state, as well as federal, office. The Justices upheld contribution caps ranging from $1,075 for statewide candidates in Missouri down to $275 for contenders for the state House. And while the majority did not discuss the huge "soft-money" contributions to political parties that top the political agenda of reformers, the logic of some of the opinions seemed to invite curbs on soft money to combat the widespread public perception that such gifts buy political influence. Moreover, Justice Stephen G. Breyer, for the first time, joined Justices John Paul Stevens and Ruth Bader Ginsburg in suggesting that Congress and the states could also impose some curbs on campaign spending. Buckley had struck down such curbs. While there probably are not two more votes now to uphold spending limits, that could change if a President Al Gore, Bill Bradley, or John McCain got to replace two or three Justices.

The bottom line is that the Missouri case, which some conservatives had hoped would sweep away existing campaign finance restrictions, has not only reaffirmed them but also energized those who seek new limits.

To be sure, the Justices’ movement was incremental, and, in any event, the current Senate Republican leadership seems determined to block any major new restrictions. But this is a long-term struggle that could both affect and be affected by this year’s elections. And self-styled reformers, including many in the Clinton Administration (which trashes soft money as corrupt even while squeezing special interests for more of it), appear to have momentum going for them in Congress and in many states.

The lesson for campaign reform skeptics is that they can’t count on the Court to do their work for them. If the skeptics can’t do a better job of selling the voters on their view that freedom of speech is ultimately at risk here-and if the next two or three appointees side with Breyer, Ginsburg, and Stevens-we may see a regime of governmental regulations on campaign spending and speech far more pervasive than anything possible under the McCain-Feingold bill.

Buckley vs. Valeo’s seeming theoretical elegance was in the dichotomy it drew between campaign contributions and campaign spending. In upholding the caps on contributions that Congress adopted in 1974, the Justices reasoned that 1) donors did not have strong free speech or free association interests in making large contributions, because the size of the check has little communicative content, and 2) the government had a compelling interest in restricting large contributions, to avoid the reality or appearance of corruption-the selling of influence, which undermines public confidence in the political system. In striking down Congress’s restrictions on campaign spending, on the other hand, the Buckley Court reasoned that the First Amendment’s most fundamental purpose was to protect unfettered freedom of political speech, and that candidates, parties, independent groups, and others had a right to deliver their messages to as many people as possible, by spending as much as they could raise (or earn, or inherit). The Court also held that spending limits were neither necessary to prevent corruption nor a permissible way of fostering political equality: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voices of others is wholly foreign to the First Amendment." (In a further wrinkle, Buckley upheld as "voluntary" the congressional restrictions on presidential candidates who agree to limit their spending of private money as a condition of accepting public financing for their campaigns.)

Buckley’s contribution-spending dichotomy immediately came under attack. Conservatives and some civil libertarians see contribution caps, such as Missouri’s, as "sweeping repression of political speech," in the words of Justices Clarence Thomas and Antonin Scalia. Reformers regard unrestricted campaign spending by monied interests as an engine of both corruption and political inequality.

And after 24 years, almost nobody thinks Buckley has worked well. The federal caps have constricted the supply of direct campaign contributions in an era of rapidly rising campaign costs. The consequences include forcing candidates to spend a huge portion of their waking hours raising millions from small donors; entrenching incumbents; enabling multi-millionaires, such as Steve Forbes, to buy political prominence; and channeling more and more money into unregulated forms of political speech. These include both "issue advertising" by independent liberal and conservative groups and soft money donations to the political parties, which are theoretically for local party-building and get-out-the-vote activities but which candidates (including both President Clinton and GOP challenger Bob Dole in 1996) have, in practice, used to promote their own campaigns. Soft money has made a mockery of the caps on direct campaign contributions, greatly aggravating the public cynicism that Buckley was designed to remedy.

The "misshapen system" created by Buckley, Justice Anthony M. Kennedy wrote in his dissent from the Jan. 24 Nixon decision, "has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits." But Justice David H. Souter’s opinion for the Court rejected arguments by Kennedy, Thomas, and Scalia for cutting down on campaign finance restrictions by overruling the part of Buckley that had approved contribution caps. Instead, Souter upheld caps (in Missouri) that were far lower, after inflation, than the $1,000 federal caps that Congress had set in 1974.

Brushing aside arguments that no politician sells influence (let alone votes) for as little as $275, and reversing a federal appeals court, Souter construed Buckley’s corruption-fighting rationale quite broadly, as holding that even very low contribution caps can be justified to avoid public perceptions that "politicians [are] too compliant with the wishes of large contributors."

Would such logic also justify curbing soft-money party contributions, which are widely denounced as corrupting? While the majority was silent on that, Breyer said yes, in a concurrence joined by Ginsburg. And in a more far-reaching aside, Breyer and Ginsburg also rejected Buckley’s fundamental holding that governments may not restrict the speech of the rich in order to enhance the relative voices of others; thus, they hinted, they might well uphold curbs on campaign spending, "particularly in respect to independently wealthy candidates." Similarly, Stevens declared in a separate concurrence: "Money is property; it is not speech." He added that "the right to use one’s own money to hire gladiators" to work in political campaigns is "not entitled to the same protection as the right to say what one pleases."

So while Kennedy, Thomas, and Scalia would strike down established campaign finance restrictions, Breyer, Ginsburg, and Stevens seem eager to uphold more-stringent restrictions than are allowed by Buckley. Souter might do the same.

The next President’s appointments (if any) could thus tip the balance toward overruling half of Buckley to uphold broad new campaign finance restrictions-or overruling the other half in order to sweep away the existing restrictions. The former possibility is intoxicating to those who hope to cleanse politics of what they regard as big money’s unfair influence once and for all, by enacting a new regime of political purity and equality.

But would such a regime work any better than Buckley itself? Or would it (as I have come to fear) become an ever-deeper mess? Would each new "reform" create new distortions, leading to fresh "loopholes," and generating demands for still more restrictions? Might we end up with political speech being rationed by a powerful regulatory bureaucracy assigned to enforce-selectively, perhaps-an ever more complex maze of campaign finance laws?

Since Buckley, the Supreme Court has always been there to stop us from sliding very far down a slippery slope toward either the purified politics envisioned by reformers or the speech-rationing regime feared by us skeptics. That could change.