Standards of review are used by judges when determining whether or not a government action is constitutional. How much deference a judge grants to the government’s policy depends on what constitutional interest is being infringed upon. In Buckley, the Court determined that the right to contribute money to a candidate or campaign was of less First Amendment value than the right to make campaign expenditures, and that limits on contributions were therefore subject to a lesser standard of review.
In this clip, Richard states that the Court applied a lesser standard in Buckley and McConnell because the “imposition on the communicative value of the contributions was marginal.” Justice Sotomayor cuts Richard off to warn him to be careful with that argument because a number of the justices dissented from that line of reasoning in McConnell, and after Citizens United v. FEC it is unclear what standard of review the Court will apply to contribution limits.
Citizens United is the most high-profile case of the Court’s recent campaign finance jurisprudence, which has struck down limits on independent expenditures, aggregate contribution limits, and public financing programs as violations of the First Amendment.