Campaign Finance Regulation and the First Amendment
The issue: Is money speech? What sort of limitations may the government impose on private funding of political campaigns?

"Money talks:" Does that mean cash contributions are "speech" within the meaning of the First Amendment?  In Buckley v Valeo (1976), the Supreme Court answered, "Yes"--at least for cash contributions to political campaigns.  The Court concluded that money is an essential ingredient of a modern political campaign, being required to rent halls, pay for candidate travel, and--most importantly--buy advertising time and space.  As such, cash contributions are too closely tied to expressive activities to be considered merely "conduct."

Buckley considered the constitutionality of a federal campaign financing law that imposed numerous restrictions on both candidate's own spending and the contributions of individuals to campaigns.  The challenge to the act was brought by unlikely political bedfellows, including conservative Senator James Buckley and liberal anti-war candidate Eugene McCarthy. 

The Court in Buckley upheld some of the provisions of the act, while striking down others.  In particular, the Court invalidated limits placed on the personal expenditures of candidates for federal office, thus paving the way for runs by wealthy candidates such as Ross Perot in 1992.  The Court also struck down a $1000 limit on individual spending on behalf of a campaign, concluding that the restriction was not closely tailored to serving the government's asserted interest in preventing corruption. On the other hand, the Court upheld limits on individual contributions to campaigns and the use of federal matching funds for candidates who agree to abide by federal spending limits.  The Court also upheld donor disclosure requirements, except as they apply to controversial third parties where disclosure might prove embarrassing to donors.

Citizens Against Rent Control (1981) considered the legality of a Berkeley, California ordinance limiting contributions to campaigns to support or oppose ballot measures to $250.  The Court invalidated the limitation, concluding that the concern in Buckley about "buying influence" had little applicability in the case of ballot measures.  In reaching its conclusion, the Court seemed either to be applying strict scrutiny--or something very close to it.

In 2007, the Court signalled a new willingness to strike down campaign finance regulations.  In Federal Election Commission v Wisconsin Right to Life, the Court voted 5 to 4 to invalidate a key section of the McCain-Feingold Act that banned corporations and unions from buying broadcast ads that mention the names of candidates for federal office in the weeks immediately before an election.

In 2010, the Supreme Court considered whether the First Amendment allowed the government to impose limits on direct funding of political attacks by a corporation.  Citizens United v Federal Election Commission involved a challenge to a corporately-funded documentary attacking the candidacy of Hillary Clinton.  Voting 5 to 4, the Court ruled that the First Amendment prohibited the government from banning political spending by corportations (and, presumably, labor unions) in candidate elections.  Writing for the Court, Justice Kennedy wrote “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The decision overruled earlier Court decisions (Austin, and portions of McConnell)  that suggested limitations on corporate speech in campaigns serve the compelling interest of in eliminating the distorting effects on a campaign of immense aggregations of wealth.  The Court also rejected the argument that the law served the compelling goal of reducing political corruption. Justice Stevens, in dissent, called the majority decision "a rejection of the common sense of the American people."  The Court  affirmed F.E.C. rules requiring disclosure of the name of the sponsor of the political message.  The case did not consider the constitutionality of the limitation on corporate donations directly to the campaign of a candidate for federal office.  The Citizens United decision was attacked by President Obama in his 2010 State of the Union Speech, and Democrats in Congress proposed new regulation to limit the effect of a ruling that they believe clearly favors Republicans, who are likely to receive disproportional corporate support in election campaigns.

In the 2014 case of McCutcheon v Federal Election Commission, the Court, 5 to 4, struck down a provision in the 2002 Campaign Reform Act that limited how much an individual could contribute during an election cycle to all candidates and campaign committees.  Writing for the Court, Chief Justice Roberts concluded that the aggregate limits dis not further the government's legitimate interest in preventing corruption or the appearance of corruption, nor was the provision closely drafted to not unnecessarily trample on protected associational freedoms protected by the First Amendment.  The four Democratic appointees to the Court all dissented, with Justice Breyer arguing that the decision, coupled with the Citizens United ruling, "eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve."

Buckley v Valeo (1976)
Citizens United v F.E.C (2010)


Citizens United: The Story Behind the Case


1. Do you agree that campaign financing laws raise serious First Amendment issues?
2.  How strong is the government interest in preventing very wealthy individuals or corporations from having undue influence over election outcomes?
3.  How strong is the government interest in preventing individuals or corporations from effectively "buying access" to candidates that they support financially?
4.  Should corporations enjoy First Amendment rights?  Is there any basis for distinguishing between free speech rights of a media corporation, such as the New York Times, and the free speech rights of a companies such as Coca Cola or Haliburton?

Senator James L. Buckley (R-NY)(3 of clubs) and Senator Eugene McCarthy (D-Minn.)(3 of hearts), plaintiffs in the Supreme Court case of Buckley v Valeo (cards copyrighted by Action Publishing).

Senators Russ Feingold (D-Wis) and John McCain (R-Ariz), authors of the Bipartisan Campaign Reform Act (BCRA).  The U. S. Supreme Court upheld all but a few minor provisions of the act in a 298-page 5 to 4 decision announced December 10, 2003.  (McConnell v F.E.C.)  A key provision of the Act was invalidated, however, in 2007 in F.E.C. v Wisconsin Right to Life.

The New York Times had this to say about the decision:
The Supreme Court delivered a stunning victory for political reform yesterday, upholding the McCain-Feingold campaign finance law virtually in its entirety. The court rejected claims that the law violates the First Amendment, making it clear that Congress has broad authority in acting against the corrupting power of money in politics. The ruling is cause for celebration, but it should also spur Congress to do more to clean up our political system.

The Bipartisan Campaign Reform Act of 2002, widely known as McCain-Feingold, closed two gaping loopholes in campaign finance law. One was "soft money," the unlimited, and often very sizable, contributions to political parties that were then funneled into federal campaigns. The other concerned sham "issue ads," commercials run just before an election that were unregulated because they purported to be about political issues but were actually intended to help particular candidates.

Groups ranging from the National Rifle Association to the American Civil Liberties Union, joined by some elected officials, rushed into court to challenge the law as an infringement on the First Amendment. The Supreme Court rejected those claims, 5 to 4. Given the choice of seeing the law as a restriction on speech or as a needed corrective to corruption in politics, the court came down firmly on the side of considering it a corrective. It made clear that the free-speech test that applies to campaign contributions is a more forgiving one than is generally used for laws that prohibit speech itself. And it underscored that Congress had important interests in preventing both political corruption and the appearance of corruption.

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