Campaign Finance: Is Money Speech?

Facts of the Case

In an attempt by Congress to control spending and contributions for political campaigns, Congress amended the Federal Election Campaign Act of 1971 three years after it was passed. Some of the key provisions included public financing for presidential elections, mandated disclosure for political contributions, limits on contributions to candidates for public office, limits on expenditures by candidates and their committees in most instances, limits on candidate expenditures from their personal funds, and limits on independent expenditures.

The amendments also provided how the eight members of the Federal Election Commission would be appointed. Two would be the Secretary of the Senate and the Clerk of the House of Representatives, who would be non-voting members. Two would be appointed directly by the President. Two more would be appointed by the President pro tempore of the Senate after recommendations by its majority and minority leaders. The remaining two would be appointed by the Speaker of the House of Representatives after recommendations by its majority and minority leaders. Both Houses of Congress would be required to confirm each of the six voting members by a majority vote, and the three pairs of voting members needed to each contain a member from each political party.

A group of plaintiffs, including Senator James Buckley, filed a claim in the District of Columbia court against Francis Valeo, who was the Secretary of the Senate and thus a non-voting member of the FEC. Their petitions for declaratory and injunctive relief under the First and Fifth Amendments were initially denied.

Question

Did the limits placed on electoral expenditures by the Federal Election Campaign Act of 1971, and related provisions of the Internal Revenue Code of 1954, violate the First Amendment's freedom of speech and association clauses?

Opinions

Per Curiam: 

In an opinion not authored by any individual Justice, the Court found that some of the provisions of the Campaign Finance Act were unconstitutional, while others were valid. In general, the provisions that were invalidated were those that:

• Limited expenditures by candidates from personal funds;

• Limited expenditures on campaigns by independent entities, who were neither candidates nor political parties; and

• Arranged a system whereby Congress could directly appoint FEC commissioners.

By contrast, the provisions that were upheld were those that:

• Limited contributions to candidates;

• Required the disclosure and reporting of provisions (although the Court narrowed their applicability); and

• Created a system for voluntary government funding of campaigns and limited spending by candidates who used this funding.

Case Commentary 

It should be noted that this decision evaluated each clause under review separately. Those that restricted and implicitly diminished the quality of free speech while lacking a legitimate interest were struck down, but those that had legitimate interests were upheld even though they also arguably restricted free speech.

Buckley proved the foundational case for analysis of campaign finance provisions. It created concerns regarding political equality by allowing governments to provide campaign funding without requiring candidates to accept that funding and the associated limits on expenditures. Public financing systems by state or federal governments cannot be used to level the playing field between candidates with varying access to funds, which can have an impact on the democratic process.

Facts of the Case

In 2004, conservative nonprofit organization Citizens United brought a complaint to the Federal Election Commission regarding Michael Moore's film Fahrenheit 9/11, a documentary that discussed the events of September 11, 2001 from a perspective unfavorable to George W. Bush. They argued that the advertisements for the film were political advertising, which would bring them within the restrictions of the Bipartisan Campaign Reform Act. This law had amended the Federal Election Campaign Act to forbid corporations from funding broadcast advertisements mentioning a candidate 30 days before a primary election or 60 days before a general election. (Bush was running for president again as the incumbent.) The FEC found a lack of evidence to support the allegations and dismissed the complaint, as well as a later complaint alleging that the advertisements violated the Taft-Hartley Act.

Since the FEC stated that these rules did not apply to the bona fide production of films for commercial purposes, Citizens United remodeled itself to meet these criteria and began producing documentary films. One of these, a negative documentary on Senator and prospective presidential candidate Hillary Clinton known as Hillary: The Movie, was completed before the 2008 elections. Citizens United aimed to promote it on television and show the film as an on-demand offering on DirecTV. When a federal district court reviewed a challenge to these actions, it found that the advertisements for the documentary violated the Bipartisan Campaign Reform Act, since the film was essentially a negative commercial against Clinton despite its alleged presentation of objectively accurate facts about her.

Question

1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional?

2) Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"?

3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA?

4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?

Opinions

Majority (5): Building on Buckley v. Valeo, which held that spending money can be critical to exercising the freedom of speech, the majority also ruled that corporations have First Amendment rights and can spend money to exercise them. The Court overruled precedents that restricted political spending by unions and corporations during elections, finding that they were constitutionally permitted to support or oppose candidates, as long as they did not contribute to their campaigns or parties directly. As a result, the section of the Bipartisan Campaign Reform Act that banned independent expenditures by corporations and unions was unconstitutional. It appeared that the majority used a heightened standard of review, similar to strict scrutiny.

Kennedy noted that the government does not have the authority to level the playing field among speakers such that each speaker has equal access to the public. He used a vision of the First Amendment as protecting the marketplace of ideas from intrusion by the legislature, even if that intrusion was based on concerns of fairness. He was not persuaded that corporations would corrupt the marketplace of ideas by flooding it with speech that they supported because of their funding advantages. Kennedy felt that corruption was limited to quid pro quo exchanges and that all citizens should be able to make their own judgments on whether certain information is valuable, without having some information removed from the marketplace of ideas in advance.

However, the majority held that provisions of the Bipartisan Campaign Reform Act that required disclosure of who funded the speech were valid here, although they might not be valid in all instances.

Minority (4)

Case Commentary

There was a wide range of intense reactions to the decision, which was viewed as a watershed moment in First Amendment jurisprudence. While judges and legal scholars were mixed in their responses, the American public largely disagreed with the decision, which was somewhat ironic in view of the majority's belief that it was attempting to protect their access to information. Polls suggested that Congress should take action to override the decision and restore limits to political spending by corporations and unions. It is intriguing to note that popular criticism for Citizens United came from both sides of the partisan divide. While some conservatives supported the decision, many of them opposed it. The media industry and international observers were also generally critical of the Court.

Facts of the Case

In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA), which established two sets of limits to campaign contributions. The base limit placed restrictions on how much money a contributor—defined broadly as individuals, partnerships, and other organizations—may give to specified categories of recipients. The aggregate limit restricted how much money an individual may donate in a two-year election cycle. The limits were periodically recalibrated to factor in inflation.

Shaun McCutcheon is an Alabama resident who is eligible to vote. In the 2011-2012 election cycle, he donated to the Republican National Committee, other Republican committees, as well as individual candidates. He wished to donate more in amounts that would be permissible under the base limit but would violate the aggregate limit. McCutcheon and the other plaintiffs sued the Federal Election Commission, arguing that the aggregate limit violated the First Amendment by failing to serve a "cognizable government interest" and being prohibitively low. The district court held that the aggregate limit served government interests by preventing corruption or the appearance of corruption and was set at a reasonable limit.

Question

Is the two-year aggregate campaign contribution limit constitutional under the First Amendment?

Opinions

Majority (5): Chief Justice John G. Roberts, Jr. delivered the opinion for the four-justice plurality. The plurality held that the aggregate limit did little to address the concerns that the Bipartisan Campaign Reform Act was meant to address and at the same time limited participation in the democratic process. Because the aggregate limit fails to meet the stated objective of preventing corruption, it does not survive the "rigorous" standard of review laid out by previous precedent dealing with campaign contributions from a First Amendment perspective and is therefore unconstitutional. The aggregate limit also prevents a donor from contributing beyond a specific amount to more than a certain number of candidates, which may force him to choose which interests he can seek to advance in a given election. The plurality held that the collective interest in combating corruption can only be pursued as long as it does not unnecessarily curtail an individual's freedom of speech, and in this case the aggregate limit is not sufficiently closely tailored to accomplish this goal. The plurality also noted that there are many other means by which the government may fight election corruption without setting an aggregate limit on campaign contributions.

Minority (4):  In his dissent, Justice Stephen G. Breyer wrote that the plurality's opinion misconstrues the nature of competing constitutional issues and destroys campaign finance laws, which causes great harm to the democratic process. Justice Breyer argued that the plurality's opinion was based on a definition of corruption that is too narrow to be effective. He went on to state the reasoning that the aggregate limit is faulty is because there is no substantial mismatch between Congress' goal of combating corruption and the means established to achieve it. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.

Case Commentary

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