Government as Regulator of the Electoral Process

Government as Regulator of the Electoral Process: Elections.—Government has increasingly regulated the electoral system by which candidates are nominated and elected, requiring disclosure of contributions and expenditures, limiting contributions and expenditures, and imposing other regulations.727 These regulations restrict freedom of expression, which comprehends the rights to join together for political purposes, to promote candidates and issues, and to participate in the political process.728 The Court is divided with respect to many of these federal and state restrictions, but has not permitted the government to bar or penalize political speech directly. Thus, it held that the Minnesota Supreme Court could not prohibit candidates for judicial election from announcing their views on disputed legal and political issues.729 And, when Kentucky attempted to void an election on the ground that the winner’s campaign promise to serve at a lower salary than that affixed to the office violated a law prohibiting candidates from offering material benefits to voters in consideration for their votes, the Court ruled unanimously that the state’s action violated the First Amendment.730 Similarly, California could not prohibit official governing bodies of political parties from endorsing or opposing candidates in primary elections.731 Minnesota, however, could prohibit a candidate from appearing on the ballot as the candidate of more than one party.732 The Court wrote that election “[r]egulations imposing severe burdens on plaintiffs’ [associational] rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable nondiscriminatory restrictions.”733 Minnesota’s ban on “fusion” candidates was not severe, as it left a party that could not place another party’s candidate on the ballot free to communicate its preference for that candidate by other means, and the ban was justified by “valid state interests in ballot integrity and political stability.”734

727 The basic federal legislation regulating campaign finances is spread over several titles of the United States Code. The relevant, principal modern laws are the Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, and the Federal Election Campaign Act Amendments of 1979, 93 Stat. 1339, 2 U.S.C. 431 et seq., and sections of Titles 18 and 26. The Federal Corrupt Practices Act of 1925, 43 Stat. 1074, was upheld in Burroughs v. United States, 290 U.S. 534 (1934), but there was no First Amendment challenge. All States, of course, extensively regulate elections.

728 See, e.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); Buckley v. Valeo, 424 U.S. 1, 14, 19 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765, 776-78 (1978); Brown v. Hartlage, 456 U.S. 45, 52-54 (1982).

729 Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002). Four Justices, however, dissented from this decision.

730 Brown v. Hartlage, 456 U.S. 45 (1982). See also Mills v. Alabama, 384 U.S. 214 (1966) (setting aside a conviction and voiding a statute which punished electioneering or solicitation of votes for or against any proposition on the day of the election, applied to publication of a newspaper editorial on election day supporting an issue on the ballot); Vanasco v. Schwartz, 401 F. Supp. 87 (E.D.N.Y. 1975) (three-judge court), aff'd, 423 U.S. 1041 (1976) (statute barring malicious, scurrilous, and false and misleading campaign literature is unconstitutionally overbroad).

731 Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989). Cf. Burson v. Freeman, 504 U.S. 191 (1992) (upholding Tennessee law prohibiting solicitation of votes and distribution of campaign literature within 100 feet of the entrance to a polling place; plurality found a “compelling” interest in preventing voter intimidation and election fraud).

732 Timmons v. Twin City Area New Party, 520 U.S. 351 (1997).

733 520 U.S. at 538 (internal quotation marks omitted).

734 520 U.S. at 369-70.

In 1971 and 1974, Congress imposed new and stringent regulation of and limitations on contributions to and expenditures by political campaigns, as well as disclosure of most contributions and expenditures, setting the stage for the landmark Buckley v. Valeo decision probing the scope of protection afforded political activities by the First Amendment.735 In basic unanimity, but with several Justices feeling that the sustained provisions trenched on protected expression, the Court sustained the contribution and disclosure sections of the statute but voided the limitations on expenditures.736

735 424 U.S. 1 (1976).

736 The Court’s lengthy opinion was denominated per curiam, but five Justices filed separate opinions.

“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.... A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”737 The expenditure of money in political campaigns may involve speech alone, conduct alone, or mixed speech-conduct, the Court noted, but all forms of it involve communication, and when governmental regulation is aimed directly at suppressing communication it matters not how that communication is defined. As such, the regulation must be subjected to close scrutiny and justified by compelling governmental interests. When this process was engaged in, the contribution limitations, with some construed exceptions, survived, but the expenditure limitation did not.

The Court in Buckley recognized that political contributions “serve[] to affiliate a person with a candidate” and “enable[ ] like-minded persons to pool their resources in furtherance of common political goals.” Contribution ceilings, therefore, “limit one important means of associating with a candidate or committee …”71 Yet “[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.”72

Applying this standard, the Buckley Court sustained the contribution limitation as imposing only a marginal restriction upon the contributor’s ability to engage in free communication, inasmuch as the contribution is a generalized expression of support for a candidate but it is not a communication of reasons for the support; “the size of the contribution provides a very rough index of the intensity of the contributors’ support for the candidate.”738 The political expression really occurs when the funds are spent by a candidate; only if the restrictions were set so low as to impede this communication would there arise a constitutional infringement. This incidental restraint upon expression may therefore be justified by Congress’ purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions.739

737 424 U.S. at 14, 19.

71 424 U.S. at 22.

72 424 U.S. at 25 (internal quotation marks omitted).

738 424 U.S. at 21.

739 424 U.S. at 14-38. Chief Justice Burger and Justice Blackmun would have struck down the contribution limitations. Id. at 235, 241-46, 290. See also California Medical Ass'n v. FEC, 453 U.S. 182 (1981), sustaining a provision barring individuals and unincorporated associations from contributing more than $5,000 per year to any multicandidate political action committee, on the basis of the standards applied to contributions in Buckley; and FEC v. National Right to Work Comm., 459 U.S. 197 (1982), sustaining a provision barring nonstock corporations from soliciting contributions from persons other than their members when the corporation uses the funds for designated federal election purposes.

Of considerable importance to the analysis of the validity of the limitations on contributions was the Court’s conclusion voiding a section restricting to $1,000 a year the aggregate expenditure anyone could make to advocate the election or defeat of a “clearly identified candidate.” Though the Court treated the restricted spending as purely an expenditure it seems to partake equally of the nature of a contribution on behalf of a candidate that is not given to the candidate but that is spent on his behalf. “Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.”740 The Court found that none of the justifications offered in support of a restriction on such expression was adequate; independent expenditures did not appear to pose the dangers of corruption that contributions did and it was an impermissible purpose to attempt to equalize the ability of some individuals and groups to express themselves by restricting the speech of other individuals and groups.741

Similarly, limitations upon the amount of funds a candidate could spend out of his own resources or those of his immediate family were voided. A candidate, no less than any other person, has a First Amendment right to advocate.742 The limitations upon total expenditures by candidates seeking nomination or election to federal office could not be justified: the evil associated with dependence on large contributions was met by limitations on contributions, the purpose of equalizing candidate financial resources was impermissible, and the First Amendment did not permit government to determine that expenditures for advocacy were excessive or wasteful.743

The government not only may not limit the amount that a candidate may spend out of his own resources, but, if a candidate spends more than a particular amount, the government may not penalize the candidate by authorizing the candidate’s opponent to receive individual contributions at higher than the normal limit. In Davis v. Federal Election Commission, the Court struck down, as lacking a compelling governmental interest, a federal statute that provided that, if a “self-financing” candidate for the House of Representatives spends more than a specified amount, then his opponent may accept more individual contributions than otherwise permitted. The statute, the Court wrote, imposed “a special and potentially significant burden” on a candidate “who robustly exercises [his] First Amendment right.”73 Citing Buckley, the Court stated that a burden “on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption.” This is because “reliance on personal funds reduces the threat of corruption, and therefore . . . discouraging the use of personal funds[ ] disserves the anticorruption interest.”74 Citing Buckley again, the Court added that the governmental interest in equalizing the financial resources of candidates does not provide a justification for restricting expenditures, and, in fact, to restrict expenditures “has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office… Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to the outcome of an election.”75

740 424 U.S. at 48.

741 424 U.S. at 39-51. Justice White dissented. Id. at 257. In an oblique return to the right-privilege distinction, the Court agreed that Congress could condition receipt of public financing funds upon acceptance of expenditure limitations. Id. at 108-09. In Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980), aff'd by an equally divided Court, 455 U.S. 129 (1982), a provision was invalidated which limited independent political committees to expenditures of no more than $1,000 to further the election of any presidential candidate who received public funding. An equally divided affirmance is of limited precedential value. When the validity of this provision, 26 U.S.C. § 9012(f), was again before the Court in 1985, the Court invalidated it. FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985). In an opinion by Justice Rehnquist, the Court determined that the governmental interest in preventing corruption or the appearance of corruption was insufficient justification for restricting the First Amendment rights of committees interested in making independent expenditures on behalf of a candidate, since “the absence of prearrangement and coordination undermines the value of the expenditure to the candidate, and thereby alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Id. at 498. See also Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996) (the First Amendment bars application of the Party Expenditure Provision of the Federal Election Campaign Act, 2 U.S.C. § 441a(d)(3), to expenditures that the political party makes independently, without coordination with the candidate).

742 424 U.S. at 51-54. Justices Marshall and White disagreed with this part of the decision. Id. at 286.

743 424 U.S. at 54-59. The reporting and disclosure requirements were sustained. Id. at 60-84.

73 128 S. Ct. 2759, 2771, 2772 (2008). The statute was § 319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. 107-155, 116 Stat. 109, 2 U.S.C. § 441a-1(a), which was part of the so-called “Millionaire’s Amendment.”

74 128 S. Ct. at 2773 (emphasis in original). Justice Stevens, in the part of his dissenting opinion joined by Justices Souter, Ginsburg, and Breyer, found that the Millionaire’s Amendment does not cause self-funding candidates “any First Amendment injury whatsoever. The Millionaire’s Amendment quiets no speech at all. On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard… Enhancing the speech of the millionaire’s opponent, far from contravening the First Amendment, actually advances its core principles.” Id. at 2780.

75 128 S. Ct. at 2773-74. The Court also struck down the disclosure requirements in § 319(b) of BCRA because they “were designed to implement the asymmetrical contribution limits provided for in § 319(a), and . . . § 319(a) violates the First Amendment.” Id. at 2775.

Although the Court in Buckley upheld the Act’s reporting and disclosure requirements, it indicated that under some circumstances the First Amendment might require exemption for minor parties able to show “a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.”744 This standard was applied both to disclosure of contributors’ names and to disclosure of recipients of campaign expenditures in Brown v. Socialist Workers ‘74 Campaign Committee,745 in which the Court held that the minor party had established the requisite showing of likely reprisals through proof of past governmental and private hostility and harassment. Disclosure of recipients of campaign expenditures, the Court reasoned, could not only dissuade supporters and workers who might receive reimbursement for expenses, but could also dissuade various entities from performing routine commercial services for the party and thereby “cripple a minor party’s ability to operate effectively.”746

The Court has apparently extended the reasoning of these cases to include not just disclosure related to political contributions, but also to disclosure related to legally "qualifying" a measure for the ballot. In Doe v. Reed,76 the Court found that signing a petition to initiate a referendum was a protected form of political expression, and that a state requirement to disclose the names and addresses on those petitions to the public would be subjected to "exacting scrutiny."77 The Court upheld the disclosure requirement on its face, finding that it furthered the state’s interest in detecting fraud and mistake in the petitioning process, while also providing for transparency and accountability. The case was remanded, however, to ascertain whether in this particular instance (a referendum to overturn a law conferring rights to gay couples) there was a "reasonable probability" that the compelled disclosures would subject the signatories to threats, harassment, or reprisals from either government officials or private parties.78

In Nixon v. Shrink Missouri Government PAC,747 the Court held that Buckley v. Valeo “is authority for state limits on contributions to state political candidates,” but state limits “need not be pegged to Buckley’s dollars.”748 The Court in Nixon justified the limits on contributions on the same grounds that it had in Buckley: “preventing corruption and the appearance of it that flows from munificent campaign contributions.”749 Further, Nixon did “not present a close call requiring further definition of whatever the State’s evidentiary obligation may be” to justify the contribution limits, as “there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters.”750 As for the amount of the contribution limits, Missouri’s fluctuated in accordance with the consumer price index, and, when suit was filed, ranged from $275 to $1,075, depending on the state office or size of constituency. The Court upheld these limits, writing that, in Buckley, it had “rejected the contention that $1,000, or any other amount, was a constitutional minimum below which legislatures could not regulate.”751 The relevant inquiry, rather, was “whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.”752

744 424 U.S. at 74.

745 459 U.S. 87 (1982).

746 459 U.S. at 97-98.

76 130 S. Ct. 2811 (2010).

77 Reed, 130 S. Ct at 2821. Five Justices joined the majority opinion written by Chief Justice Roberts - Justices Kennedy, Ginsburg, Breyer, Alito and Sotomayor. One might question, however, what level of scrutiny Justice Breyer would support, since he also joined a concurrence by Justice Stevens, which suggested that the disclosure of the name and addresses on the petitions is not "a regulation of pure speech," and consequently should be subjected to a lesser standard of review. 130 S. Ct. at 2829 (Stevens, J., concurring in part and in judgment). Justice Breyer, in his own concurrence, suggests that "in practice [the standard articulated in both the majority and Justice Steven's concurrence] has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon the others." 130 S. Ct. 2822 (Breyer, J., concurring). Justice Scalia, on the other hand, questioned whether "signing a petition that has the effect of suspending a law fits within 'freedom of speech' at all." 130 S. Ct. at 2832 (Scalia, J., concurring in judgement).

78 130 S. Ct. at 2821 (citation omitted).

747 528 U.S. 377 (2000).

748 528 U.S. at 381-82.

749 528 U.S. at 390.

750 528 U.S. at 393, 395.

751 528 U.S. at 397.

752 528 U.S. at 397.

Outside the context of contributions to candidates, however, the Court has not been convinced of the justifications for limiting such uses of money for political purposes. Thus, a municipal ordinance regulating the maximum amount that could be contributed to or accepted by an association formed to take part in a city referendum was invalidated.753 While Buckley had sustained limits on contributions as a prophylactic measure to prevent corruption or its appearance, no risk of corruption was found in giving or receiving funds in connection with a referendum. Similarly, the Court invalidated a criminal prohibition on payment of persons to circulate petitions for a ballot initiative.754

Venturing into the area of the constitutional validity of governmental limits upon political spending or contributions by corporations, a closely divided Court struck down a state law that prohibited corporations from expending funds in order to influence referendum votes on any measure save proposals that materially affected corporate business, property, or assets. The free discussion of governmental affairs “is the type of speech indispensable to decisionmaking in a democracy,” the Court said, “and this is no less true because the speech comes from a corporation rather than an individual”755 It is the nature of the speech, not the status of the speaker, that is relevant for First Amendment analysis, thus allowing the Court to pass by the question of the rights a corporate person may have. The “materially affecting” requirement was found to be an impermissible proscription of speech based on content and identity of interests. The “exacting scrutiny” that restrictions on speech must pass was not satisfied by any of the justifications offered and the Court in any event found some of them impermissible.

753 Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1980). It is not clear from the opinion whether the Court was applying a contribution or an expenditure analysis to the ordinance, see id. at 301 (Justice Marshall concurring), or whether in this context it makes any difference.

754 Meyer v. Grant, 486 U.S. 414 (1988). The Court subsequently struck down a Colorado statute that required ballot-initiative proponents, if they pay circulators, to file reports disclosing circulators’ names and addresses and the total amount paid to each circulator. Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999). Although the Court upheld a requirement that proponents' names and the total amount they have spent to collect signatures be disclosed, as this served “as a control or check on domination of the initiative process by affluent special interest groups” (id. at 202), it found that “[t]he added benefit of revealing the names of paid circulators and the amounts paid to each circulator . . . is hardly apparent and has not been demonstrated.” Id. at 203. The Court also struck down a requirement that circulators be registered voters, as the state’s interest in ensuring that circulators would be amenable to subpoenas was served by the requirement that they be residents a requirement on which the Court had no occasion to rule.

755 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). Justice Powell wrote the opinion of the Court. Dissenting, Justices White, Brennan, and Marshall argued that while corporations were entitled to First Amendment protection, they were subject to more regulation than were individuals, and substantial state interests supported the restrictions. Id. at 802. Justice Rehnquist went further in dissent, finding no corporate constitutional protection. Id. at 822.

Bellotti called into some question the constitutionality of the federal law that makes it unlawful for any corporation or labor union “to make a contribution or expenditure in connection with any election” for federal office or “in connection with any primary election or political convention or caucus held to select candidates” for such office.756 Three times the opportunity has arisen for the Court to assess the validity of the statute and each time it has passed it by.757 One of the dissents in Bellotti suggested its application to the federal law, but the Court saw several distinctions.758 While the dissent's concerns were ultimately realized in Citizens United v. FEC,79 it was only after many years of the Court either distinguishing Bellotti or applying it narrowly.

Other aspects of the federal provision have been interpreted by the Court. First, in FEC v. National Right to Work Committee,759 the Court unanimously upheld section 441b’s prohibition on corporate solicitation of money from corporate nonmembers for use in federal elections. Relying on Bellotti for the proposition that government may act to prevent “both actual corruption and the appearance of corruption of elected representatives,” the Court concluded that “there is no reason why . . . unions, corporations, and similar organizations [may not be] treated differently from individuals.”760 However, an exception to this general principle was recognized by a divided Court in FEC v. Massachusetts Citizens for Life, Inc.,761 holding the section’s independent expenditure limitations (not limiting expenditures but requiring only that such expenditures be financed by voluntary contributions to a separate segregated fund) unconstitutional as applied to a corporation organized to promote political ideas, having no stockholders, and not serving as a front for a “business corporation” or union. One of the rationales for the special rules on corporate participation in elections—elimination of “the potential for unfair deployment of [corporate] wealth for political purposes”—has no applicability to such a corporation “formed to disseminate political ideas, not to amass capital.”762 The other principal rationale—protection of corporate shareholders and other contributors from having their money used to support political candidates to whom they may be opposed—was also deemed inapplicable. The Court distinguished National Right to Work Committee because “restrictions on contributions require less compelling justification than restrictions on independent spending,” and also explained that, “given a contributor’s awareness of the political activity of [MCFL], as well as the readily available remedy of refusing further donations, the interest protecting contributors is simply insufficient to support § 441b’s restriction on ... independent spending.”763 What the Court did not address directly was whether the same analysis could have led to a different result in National Right to Work Committee.764

756 2 U.S.C. § 441b. The provision began as § 313 of the Federal Corrupt Practices Act of 1925, 43 Stat. 1074, prohibiting contributions by corporations. It was made temporarily applicable to labor unions in the War Labor Disputes Act of 1943, 57 Stat. 167, and became permanently applicable in § 304 of the Taft-Hartley Act. 61 Stat. 159.

757 All three cases involved labor unions and were decided on the basis of statutory interpretation, apparently informed with some constitutional doubts. United States v. CIO, 335 U.S. 106 (1948); United States v. United Automobile Workers, 352 U.S. 567 (1957); Pipefitters v. United States, 407 U.S. 385 (1972).

758 First National Bank of Boston v. Bellotti, 435 U.S. 765, 811-12 (1978) (Justice White dissenting). The Court emphasized that Bellotti was a referendum case, not a case involving corporate expenditures in the context of partisan candidate elections, in which the problem of corruption of elected representatives was a weighty problem. “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” Id. at 787-88 & n.26.

79 130 S. Ct. 876 (2010).

759 459 U.S. 197 (1982).

760 459 U.S. at 210-11.

761 479 U.S. 238 (1986). Justice Brennan’s opinion for the Court was joined by Justices Marshall, Powell, O'Connor, and Scalia; Chief Justice Rehnquist, author of the Court’s opinion in National Right to Work Comm., dissented from the constitutional ruling, and was joined by Justices White, Blackmun, and Stevens.

762 479 U.S. at 259.

763 479 U.S. at 259-60, 262.

764 The Court did not spell out whether there was any significant distinction between the two organizations, NRWC and MCFL; Chief Justice Rehnquist’s dissent suggested that there was not. See 479 U.S. at 266.

Clarification of Massachusetts Citizens for Life was afforded by Austin v. Michigan State Chamber of Commerce,765 in which the Court upheld application to a nonprofit corporation of Michigan’s restrictions on independent expenditures by corporations. The Michigan law, like federal law, prohibited such expenditures from corporate treasury funds, but allowed them to be made from separate “segregated” funds. This arrangement, the Court decided, serves the state’s compelling interest in assuring that corporate wealth, accumulated with the help of special advantages conferred by state law, does not unfairly influence elections. The law was sufficiently “narrowly tailored” because it permits corporations to make independent political expenditures through segregated funds that “accurately reflect contributors’ support for the corporation’s political views.”766 Also, the Court concluded that the Chamber of Commerce was unlike the MCFL in each of the three distinguishing features that had justified an exemption from operation of the federal law. Unlike MCFL, the Chamber was not organized solely to promote political ideas; although it had no stockholders, the Chamber’s members had similar disincentives to forego benefits of membership in order to protest the Chamber’s political expression; and, by accepting corporate contributions, the Chamber could serve as a conduit for corporations to circumvent prohibitions on direct corporate contributions and expenditures.767

In FEC v. Beaumont,80 the Court held that the federal law that bars corporations from contributing directly to candidates for federal office may constitutionally be applied to nonprofit advocacy corporations. Corporations may make such contributions only through PACs, and the Court in Beaumont wrote that, in National Right to Work, it had “specifically rejected the argument . . . that deference to congressional judgments about proper limits on corporate contributions turns on details of corporate form or the affluence of particular corporations.”81 Though nonprofit advocacy corporations, the Court held in Massachusetts Citizens for Life, have a First Amendment right to make independent expenditures, the same is not true for direct contributions to candidates.

In McConnell v. Federal Election Commission,82 the Court upheld against facial constitutional challenges key provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA). A majority opinion coauthored by Justices Stevens and O’Connor upheld two major provisions of BCRA: (1) the prohibition on “national party committees and their agents from soliciting, receiving, directing, or spending any soft money,”83 which is money donated for the purpose of influencing state or local elections, or for “mixed-purpose activities — including get-out-the-vote drives and generic party advertising,”84 and (2) the prohibition on corporations and labor unions’ using funds in their treasuries to finance “electioneering communications,”85 which BCRA defines as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal Office,” made within 60 days before a general election or 30 days before a primary election. Electioneering communications thus include both “express advocacy and so-called issue advocacy.”86

As for the soft-money prohibition on national party committees, the Court applied “the less rigorous scrutiny applicable to contribution limits.”87 and found it “closely drawn to match a sufficiently important interest.”88 The Court’s decision to use less rigorous scrutiny, it wrote, “reflects more than the limited burdens they [i.e., the contribution restrictions] impose on First Amendment freedoms. It also reflects the importance of the interests that underlie contribution limits — interests in preventing ‘both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.’”89

As for the prohibition on corporations and labor unions’ using their general treasury funds to finance electioneering communications, the Court applied strict scrutiny, but found a compelling governmental interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideals.”90 These corrosive and distorting effects result both from express advocacy and from so-called issue advocacy. The Court also noted that, because corporations and unions “remain free to organize and administer segregated funds, or PACs,” for electioneering communications, the provision was not a complete ban on expression.91 In response to the argument that the justifications for a ban on express advocacy did not apply to issue advocacy, the Court found that the “argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy.”92

The limitations on electioneering communication, however, soon faced renewed scrutiny by the Court. In Wisconsin Right to Life, Inc. v. Federal Election Comm’n (WRTL I),v the Court vacated a lower court decision that had denied plaintiffs the opportunity to bring an as-applied challenge to BCRA’s regulation of electioneering communications. Subsequently, in Federal Election Commission v. Wisconsin Right to Life (WRTL II),94 the Court considered what standard should be used for such a challenge. Chief Justice Roberts, in the controlling opinion,95 rejected the suggestion that an issue ad broadcast during the specified periods before elections should be considered the “functional equivalent” of express advocacy if the “intent and effect” of the ad was to influence the voter’s decision in an election.96 Rather, Chief Justice Roberts’ opinion held that an issue ad is the functional equivalent of express advocacy only if the ad is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”97

Then came the case of Citizens United v. FEC,98 which significantly altered the Supreme Court's jurisprudence on corporations and election law. In Citizens United, a non-profit corporation released a film critical of then-Senator Hillary Clinton, a candidate in the Democratic Party’s 2008 Presidential primary elections, and sought to make it available to cable television subscribers within 30 days of that primary. The case began as another as-applied challenge to BCRA, but the Court asked for reargument, and, in a 5-4 decision, not only struck down the limitations on electioneering communication on its face (overruling McConnell) but also rejected the use of the antidistortion rationale (overruling Austin).

In Citizens United, the Court argued that there was a tension between the right of corporations to engage in political speech, as articulated in Bellotti and its progeny, and the limitations on such speech allowed in Austin to avoid the disproportionate economic power of corporations. Reasoning that the Court had rejected similar attempts to level the playing field among differing voices with disparate economic resources,99 the Court held that the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity of necessity prevents distinctions based on wealth.100 In particular, the Court noted that media corporations, although statutorily exempted from these restrictions, do not receive special constitutional protection under the First Amendment,101 and thus would be constitutionally vulnerable under an antidistortion rationale.

The Court also held that the ability of a corporation to form a PAC neither allowed that corporation to speak directly, nor did it provide a sufficient alternative method of speech. The Court, found that PACs are burdensome alternatives that are “expensive to administer and are subject to extensive regulation.”102 The Court noted that the difficulty in establishing a PAC might explain why fewer than 2,000 of the millions of corporations in the country have PACs. Further, the Court argued that even if a corporation did want to establish a PAC to speak to an urgent issue, that such corporation might not be able to establish one in time to address issues in a current campaign.

While the holding of Citizens United would appear to diminish the need for corporations to create PACs in order to engage in political speech, it is not clear what level of regulation will now be allowed over speech made directly by a corporation.103 The Court did uphold the requirements under BCRA that electioneering communications funded by anyone other than a candidate must include a disclaimer regarding who is responsible for the content of the communication, and that the person making the expenditure must disclose to the FEC the amount of the expenditure and the names of certain contributors. The Court held that these requirements could be justified based on a governmental interest in “provid[ing] the electorate with information” about the sources of election-related spending, helping citizens “make informed choices in the political marketplace,” and facilitate the ability of shareholders to hold corporations accountable for such political speech.104

In Randall v. Sorrell, a plurality of the Court struck down a Vermont campaign finance statute’s limitations on both expenditures and contributions.105 As for the statute’s expenditure limitations, the plurality found Buckley to control and saw no reason to overrule it and no adequate basis upon which to distinguish it. As for the statute’s contribution limitations, the plurality, following Buckley, considered whether the “contribution limits prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy’; whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to survive First Amendment scrutiny.”106 The plurality found that they were.107 Vermont’s limit of $200 per gubernatorial election “(with significantly lower limits for contributions to candidates for State Senate and House of Representatives) . . . are well below the limits this Court upheld in Buckley,” and “are the lowest in the Nation.”108 But the plurality struck down Vermont’s contribution limits “based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on volunteer activity in Vermont elections.”109

765 494 U.S. 652 (1990).

766 494 U.S. at 660-61.

767 494 U.S. at 661-65.

80 539 U.S. 146 (2003). 81 539 U.S. at 157. 82 540 U.S. 93 (2003). 83 540 U.S. at 133. 84 540 U.S. at 123. 85 540 U.S. at 204. 86 540 U.S. at 190. 87 540 U.S. at 141. 88 540 U.S. at 136 (internal quotation marks omitted). 89 540 U.S. at 136. 90 540 U.S. at 205. 91 540 U.S. at 204. 92 540 U.S. at 206. 93 546 U.S. 410 (2006). 94 551 U.S. 449 (2007). 95 Only Justice Alito joined Parts III and IV of Chief Justice Roberts’ opinion, which addressed the issue of as-applied challenges to BCRA. Justices Scalia (joined by Kennedy and Thomas) concurred in the judgment, but would have overturned McConnell and struck down BCRA’s limits on issue advocacy on its face. 96 The suggestion was made that an “intent and effect” standard had been endorsed by the Court in McConnell, which stated that “[t]he justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect.” 540 U.S. at 206. While acknowledging that an evaluation of the “intent and effect” had been relevant to the rejection of a facial challenge, Chief Justice Roberts’ opinion in WRTL II denied that such a standard had been endorsed for as-applied challenges. 551 U.S. 464-69. 97 551 U.S. at 469-70. 98 130 S. Ct. 876 (2010). 99 See Buckley, 424 U.S. at 49 (First Amendment’s protections do not depend on the speaker’s “financial ability to engage in public discussion.”); Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008) (invalidating the cap on contributions to one candidate if the opponent made certain expenditures from personal funds). 100 Citizens United, slip. op. at 34. 101 130 S. Ct. at 905-06. 102 130 S. Ct. at 897. For example, a PAC must appoint a treasurer, keep detailed records of persons making donations, preserve receipts for three years, must report changes to its organizational statement within 10 days, and must file detailed monthly reports with the FEC. Id. 103 For instance, while the Court in National Right to Work allowed restrictions on corporate solicitation of other corporations for PAC funds, the Court might be disinclined to allow restrictions on corporations soliciting other corporations for funds to use for direct independent expenditures. 104 130 S. Ct. at 913-14 (citations omitted). The Court had previously acknowledged that as-applied challenges would be available to a group if it could show a “reasonable probability” that disclosure of its contributors’ names would “subject them to threats, harassment, or reprisals from either Government officials or private parties.” McConnell, 540 U.S. at 198 (quoting Buckley, 427 U.S. at 74). 105 548 U.S. 230 (2006). Justice Breyer wrote the plurality opinion, with only Chief Justice Roberts joining it in full. Justice Alito joined the opinion as to the contribution limitations but not as to the expenditure limitations. Justice Alito and three other Justices concurred in the judgment as to the limitations on both expenditures and contributions, and three Justices dissented. 106 548 U.S. at 248 (citation omitted). 107 Although, as here, limits on contributions may be so low as to violate the First Amendment, “there is no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all …” Davis v. Federal Election Commission, 128 S. Ct. 2759, 2771 (2008) (dictum). 108 548 U.S. at 249 (citation omitted). The plurality noted that, “in terms of real dollars (i.e., adjusting for inflation),” they were lower still. Id. at 250. 109 548 U.S. at 253.

Government as Regulator of the Electoral Process: Lobbying.—Legislators may be greatly dependent upon representations made to them and information supplied to them by interested parties, and therefore may desire to know what the real interests of those parties are, what groups or persons they represent, and other such information. But everyone is constitutionally entitled to write his congressman or his state legislator, to cause others to write or otherwise contact legislators, and to make speeches and publish articles designed to influence legislators. Conflict is inherent. In the Federal Regulation of Lobbying Act,768 Congress by broadly phrased and ambiguous language seemed to require detailed reporting and registration by all persons who solicited, received, or expended funds for purposes of lobbying, that is to influence congressional action directly or indirectly. In United States v. Harriss,769 the Court, stating that it was construing the Act to avoid constitutional doubts,770 interpreted covered lobbying as meaning only direct attempts to influence legislation through direct communication with members of Congress.771 So construed, the Act was constitutional; Congress had “merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose,” and this was simply a measure of “self-protection.”772

768 60 Stat. 812, 839 (1946), 2 U.S.C. §§ 261-70.

769 347 U.S. 612 (1954).

770 347 U.S. at 623.

771 347 U.S. at 617-24.

Other statutes and governmental programs affect lobbying and lobbying activities. It is not impermissible for the Federal Government to deny a business expense tax deduction for money spent to defeat legislation which would adversely affect one’s business.773 But the antitrust laws may not be applied to a concert of business enterprises that have joined to lobby the legislative branch to pass and the executive branch to enforce laws which would have a detrimental effect upon competitors, even if the lobbying was conducted unethically.774 On the other hand, allegations that competitors combined to harass and deter others from having free and unlimited access to agencies and courts by resisting before those bodies all petitions of competitors for purposes of injury to competition are sufficient to implicate antitrust principles.775

772 347 U.S. at 625. Justices Douglas, Black, and Jackson dissented. Id. at 628, 633. They thought the Court’s interpretation too narrow and would have struck the statute down as being too broad and too vague, but would not have denied Congress the power to enact narrow legislation to get at the substantial evils of the situation. See also United States v. Rumely, 345 U.S. 41 (1953).

773 Cammarano v. United States, 358 U.S. 498 (1959).

774 Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961). See also UMW v. Pennington, 381 U.S. 657, 669-71 (1965).

775 California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). Justices Stewart and Brennan thought that joining to induce administrative and judicial action was as protected as the concert in Noerr but concurred in the result because the complaint could be read as alleging that defendants sought to forestall access to agencies and courts by plaintiffs. Id. at 516.

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