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Judicial campaign speech
By Tony Mauro, First Amendment Center Legal Correspondent
Updated February 2010
For more than 30 years after the Watergate scandal in the early 1970s, Congress and the Supreme Court were mostly on the same page concerning campaign-finance regulation.
Though First Amendment concerns were always present, the perceived need for limits and rules in the interest of minimizing the perceived corrupting influence of money in politics usually took precedence. Most campaign-finance measures passed by Congress, even though they touched on core political speech, were upheld by the Supreme Court.
That seeming consensus began unraveling in 2007, and collapsed dramatically in January 2010 when the Supreme Court, voting 5-4, struck down major laws and precedents that restricted independent expenditures in campaigns by corporations and unions. The seismic shift came in the case of Citizens United v. Federal Election Commission, a dispute over the airing of an anti-Hillary Clinton movie-documentary in 2008 that was produced by a conservative group funded with corporate money.
What had once been seen as acceptable restrictions on corporate electioneering in the months before an election were now viewed by the Court as “classic examples of censorship.” Those were the words of Justice Anthony Kennedy, who wrote the majority ruling in the Jan. 21, 2010, Citizens United decision. He added, “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.”
In a 1990 decision, Austin v. Michigan Chamber of Commerce, the Court had upheld a state restriction on corporate campaign spending, on the grounds that corporations’ “immense aggregations of wealth” would distort the political process. But now, in Citizens United, that precedent and its rationale were swept aside. “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,” Kennedy wrote. “If the anti-distortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.”
But the Kennedy majority did not stop there. Overturning Austin, Kennedy said, also dictated overturning part of McConnell v. Federal Election Commission,the 2003 decision that had upheld the ban on using corporate funds for express advocacy. The ban was included in the 2002 Bipartisan Campaign Reform Act,so that provision was also struck down.
All in all, Citizens United was an earth-shaking change in how the Supreme Court viewed the balance between freedom of speech and regulating campaigns. “A disaster for the American people and a dark day for the Supreme Court,” said Fred Wertheimer of Democracy 21, a longtime campaign-finance reform leader. Steve Simpson of the libertarian Institute for Justice was delighted. “The Court has finally struck down blatant censorship that masquerades as campaign reform.”
But in many ways, it was an earthquake that had its beginnings as far back as 2002. That was when President George W. Bush signed the Bipartisan Campaign Reform Act — popularly known as McCain-Feingold after its Senate sponsors and often as BCRA. In his signing statement, Bush said he was doing so in spite of his view that parts of the law “present serious constitutional concerns.”
From that date on, the Bush administration dutifully defended the law in the courts, as the executive branch is normally obliged to do. Solicitor General Theodore Olson defended the law in McConnell in 2003, though as a private attorney later on, he spearheaded the Citizens United strategy to overturn the corporate limits he had once defended.
But the biggest change came in 2005 and 2006, with the appointment by Bush of two new Supreme Court justices. Though Bush may not have had the goal of overturning McCain-Feingold in mind when making his choices, the new justices helped solidify skepticism toward the most ambitious campaign-finance law in history.
John Roberts Jr., who replaced William Rehnquist as chief justice in 2005, has proven to be as much of a skeptic as his predecessor, if not more so — so his appointment did not appreciably change the vote equation in campaign-finance cases. But the tipping point came in 2006, when Samuel Alito Jr. replaced Sandra Day O’Connor. O’Connor had generally supported campaign-finance laws, but Alito has provided the fifth vote to opponents.
“The only relevant thing that has changed since Austin and McConnell is the composition of this Court,” said Justice John Paul Stevens in his dispirited dissent in Citizens United. At a Georgetown University Law Center forum after the Citizens United decision, Justice Sandra Day O’Connor said, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.”
The change in the Court’s lineup showed itself quickly. In Federal Election Commission v. Wisconsin Right to Life (2007), the Supreme Court ruled that at least as it pertained to the election advertisements at issue in the case, the “electioneering ad” restriction in BCRA was an unconstitutional restriction on core political speech. It was the same provision at issue later in Citizens United,but in this case, the question was whether the ban on corporate spending extended to ads that related to issues rather than to the election of candidates. The disputed Wisconsin Right to Life ads spotlighted the issue of filibustering judicial nominees, and mentioned senators involved — one of whom was running for reelection. Keeping such ads off the air was a First Amendment violation, the Court ruled, 5-4.
“Where the First Amendment is implicated,” wrote Roberts, “the tie goes to the speaker, not the censor.” To many, the decision represented a new tone on the Court — a view that in the name of campaign reform, Congress had gone too far in manipulating what would otherwise be viewed as core political speech: campaign rhetoric in the weeks before an election. “Enough is enough,” wrote Roberts.
The next indicator of how things had changed came in 2008. In Davis v. Federal Election Commission, the Court struck down 5-4 a little-known provision of the McCain-Feingold law aimed at leveling the playing field for opponents of wealthy candidates who finance their own campaigns.
That goal of equalizing speech is not sufficient to justify the law, and would have “ominous implications” if accepted, the Court ruled, because government in effect would be manipulating candidate speech. The so-called “millionaire’s amendment” ruled on in Davis required self-financing candidates to declare their intention to spend more than $350,000 of their own funds, and then to report when they cross that line. Opponents of those candidates were then allowed to raise more money from individuals ($6,900 as opposed to the usual maximum of $2,300), among other benefits.
Significantly, Justice Alito, the new justice, wrote for the majority, asserting that this “asymmetrical” treatment of opposing candidates “impermissibly burdens” the wealthy candidate’s First Amendment right to spend his own money for campaign speech. Alito said the law forced a self-financing candidate to make the unappealing choice between limiting his or her own spending and triggering a system that helps his or her opponent raise significantly more money.
Prophetically, Rick Hasen, an election-law expert Loyola Law School in Los Angeles, saw in the Davis decision the seeds of a shift on the limits on corporate expenditures. If the Court was concerned about millionaires’ speech rights, he said, it might also worry about corporate speech. “The corporate and union spending limits are clearly on borrowed time,” said Hasen. He proved right inCitizens United.
Background on McConnell v. FEC
But this hard shift toward skepticism would have been difficult to predict in the first round of litigation that sprang up immediately after BCRA was signed into law in 2002.
Within hours of the signing, opponents went to federal court to file First Amendment challenges against the law, which eventually grew into litigation with more than 80 plaintiffs. One complaint called the legislation the most sweeping effort to criminalize political speech since the Alien and Sedition Acts passed by Congress more than 200 years ago.
But after a 19-month appeals process that resulted in one of the lengthiest opinions in Supreme Court history, the nation’s highest court, on Dec. 10, 2003, rendered its 5-4 verdict. “With two relatively minor exceptions,” Chief Justice Rehnquist announced from the bench in McConnell v. Federal Election Commission, “the entire statute is constitutional.”
To the surprise of many, the Court in its 298-page opinion narrowly upheld all of the provisions of the law that were most important — including the sections viewed as most vulnerable. One was a ban on so-called soft money that has flooded into federal campaigns in recent elections. This, as Rehnquist defined it, is “money raised outside the source and amount limitations established by the Federal Election Campaign Act.” The electioneering-ad ban that ultimately fell in Citizens United was also upheld. The only sections of the law struck down would have restricted donations to campaigns by minors and required parties to choose between making coordinated or independent expenditures to benefit their candidates.
The Court seemed to go out of its way in McConnell to defer to Congress, which it said had “particular expertise” in regulating campaigns, and which could fairly undertake efforts to reduce corruption in the political system. But dissenting justices were fearful that the Court’s deferential attitude toward Congress gave short shrift to First Amendment concerns.
In a dissent, Justice Antonin Scalia called McConnell a “sad day for freedom of speech.” The same Court that has protected tobacco advertising and virtual child pornography, Scalia lamented, now has “smiled with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.”
The constitutional debate reflected in McConnell was not new. For nearly 30 years, efforts to change the way campaigns are run and paid for have had to surmount not only political opposition but an even bigger obstacle as well: the First Amendment.
‘Mother’s milk of politics’
Explaining why the First Amendment is implicated by campaign-finance “reform” begins with two words: Money talks. Money, famously described as the “mother’s milk of politics” by the late California political operative Jesse Unruh, is intimately connected to the expression of political views that is at the core of what the First Amendment was meant to protect.
From a candidate’s point of view, money pays for disseminating his or her views through speeches, paid advertisements and letters to voters. For those who contribute money to candidates, their contribution becomes a classic expression of political views by the simple act of favoring one candidate over another. Any legislation that seeks to regulate, limit or even shut off the flow of campaign money, therefore, raises substantial First Amendment concerns.
But what proponents call reform efforts have persisted, and harmonizing their stated good-government goals with First Amendment values is a constant challenge for legislators and the courts.
Cleaning up American political campaigns has been a goal for reformers for more than a century. In 1907, Progressive Era concern about “fat cat” contributions led to passage of the Tillman Act, which prohibited contributions from corporations and national banks to candidates for federal office. That law set a baseline for early reform that has gone relatively unquestioned. Citizens United left in place the ban on corporate contributions to candidates.
Enforcement and further legislation to restrict campaign money were half-hearted for decades after that, until the 1972 Watergate break-in and resulting scandal. Secret and illegal individual contributions had been made to President Richard Nixon’s re-election campaign in 1972, and many of those that were not secret were huge. More than 140 contributors donated more than $50,000 each, and one insurance executive donated $2 million. Some contributions were intended to influence pending government action or to win ambassadorships, it was revealed.
The revelations were among the factors that led to Nixon’s resignation in 1974 and left Congress and the public eager to find ways of reforming the campaign and election process. Congress responded by amending a 1971 law that required reporting of campaign contributions and expenditures. The amendments imposed strict limits on both contributions to candidates and parties and spending by candidates in federal elections. An individual, for example, could give a maximum of $1,000 to a candidate for federal office and $20,000 to a political party.
On the spending side, the law limited House candidates to spending $70,000 per election, Senate campaigns to 12 cents per voter and presidential candidates to $20 million for the general election. It also limited the amount of money a candidate could draw from his or her own funds for a campaign, and limited to $1,000 the amount someone could spend on behalf of a candidate independently from the candidate’s campaign. An independent Federal Election Commission was created to implement the law, and Congress approved expanded public funding for presidential elections. Anticipating a challenge, Congress also authorized a fast-track process for the courts to review the law so that regulations could be in place for the 1976 election.
The Buckley case
It did not take long for challengers to emerge. Conservative New York Sen. James Buckley and liberal Democrat and former Minnesota Sen. Eugene McCarthy filed suit, arguing that the limits in the law violated their own First Amendment rights as candidates, as well as the rights of campaign contributors and political and other organizations to take part in the democratic process. As a formality, they filed suit against Francis Valeo, secretary of the U.S. Senate.
An appeals court upheld most of the law, and the challenge, Buckley v. Valeo,moved quickly to the Supreme Court, where it was argued in November 1975.
The Supreme Court was under considerable pressure to act quickly; the first federal campaign funds for the 1976 election were due to be paid out to candidates on Jan. 2, 1976.
To speed the opinion writing, the Court decided to assign a committee of justices to draft a “per curiam” or unsigned decision. Each justice would write a separate section of the decision. But in the end, with several justices writing separate dissents, the Jan. 30, 1976, decision turned into one of the lengthiest in Supreme Court history — and one of the most difficult to interpret.
The Court ruled in Buckley that the post-Watergate limit placed on the amount of money a candidate for federal office might spend was an unconstitutional violation of the candidate’s freedom of speech. Such a limit, it said, posed “substantial rather than merely theoretical restraints on the quantity and diversity of political speech.”
Campaign spending by candidates, the Court reasoned, was closely related to political speech, which the Court has always given the highest level of First Amendment protection. Campaign money is spent on fliers, campaign advertising and generally getting the candidate’s message out — all core political speech. Under the Court’s First Amendment precedents, the more valuable the speech, the harder it is for government to restrict it, so the Court struck down the spending limits. For the same reason, the limit on candidates’ ability to use their own money was also struck down.
But another provision of the law, limiting the amount of money that individuals and organizations could contribute to a candidate, was deemed constitutional. This section, too, implicated the First Amendment, the Court found, but it limited activities that were, in effect, one step removed from political speech.
“While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor,” the Court said.
The limit on contributions also served the important government interest of preventing corruption, the Court said, making it easier to justify as a limitation on the First Amendment. When an individual gives money to a campaign, the Court suggested, the money’s relationship to important, protected speech is less direct, because the money is used for expression by the recipient of the money, not the donor. Therefore, it can be regulated more easily.
The Court also struck down the method of appointing members of the FEC, which was charged with implementing the law.
A series of shifting majorities dictated each result. The limits on expenditures were struck down by a 7-1 vote, while limits on campaign contributions were upheld 6-2. Composition of the FEC was ruled unconstitutional by an 8-0 vote. Justices Lewis F. Powell Jr., William J. Brennan Jr. and Potter Stewart were in the majority in all of the votes, while Chief Justice Warren Burger and Justices Harry A. Blackmun, William H. Rehnquist, Byron R. White and Thurgood Marshall dissented in certain sections of the decision. Justice John Paul Stevens, new on the Court, did not participate.
The outcome of Buckley, which sharply divided the Court, was clearly a compromise, one that was both praised and criticized.
In their separate writings, most justices saw First Amendment problems with the broad new regime of campaign regulations. But some thought that at least some portions of the law should be upheld. To strike a compromise, the BuckleyCourt made a distinction between campaign contributions — money given by individuals, companies or political committees to candidates or parties — and campaign expenditures, defined as money spent by the candidates or parties to win votes. This distinction has been questioned, but it was key to the Court’s resolution of the case because it enabled the Court to treat the two types of transactions differently under the First Amendment.
But the distinction between spending and contributions was supported by only five justices, and several others criticized the majority’s rationale. “The contribution limitations infringe on First Amendment liberties and suffer from the same infirmities that the Court correctly sees in the expenditure ceilings,” Chief Justice Burger wrote. He added, perhaps presciently, “What remains after today’s holding leaves no more than a shadow of what Congress contemplated. I question whether the residue leaves a workable program.”
Justice White wrote: “It would make little sense to me, and apparently made none to Congress, to limit the amounts an individual may give to a candidate or spend with his approval but fail to limit the amounts that could be spent on his behalf. Yet the Court permits the former while striking down the latter limitation.”
Effects of Buckley
Soon after the Buckley case was decided, Congress abided by the Court’s judgment by repealing the expenditure limits on all candidates except those who accepted public funding.
But beyond the immediate impact, the Court’s complex decision in Buckley v. Valeo has impeded every subsequent effort to limit the influence of money in campaigns. Sen. Orrin Hatch, R-Utah, has described the Buckley ruling as “the granddaddy” of cases affecting reform. “Buckley established the free-speech paradigm in which to weigh the competing campaign-reform proposals,” Hatch said. At both the federal and state level, efforts to restrict campaign spending are challenged and usually are struck down because of Buckley‘s “money-is-speech” rationale. Joshua Rosenkranz, executive director of the Brennan Center for Justice, once described the Buckley decision as “the tree in the middle of the ball field” that all players in the campaign-reform field had to deal with and work around.
Justices themselves have expressed concerns about the viability of the dichotomy between expenditures and contributions that is at the heart of theBuckley decision. “The very disaffection or distrust that the Court cites as the justification for limits on direct contributions has now spread to the entire political discourse,” said Justice Anthony Kennedy in dissent in Nixon v. Shrink Missouri Government PAC (2000). “Buckley has not worked.”
But a majority of the Court has generally stuck with the basic framework ofBuckley in decisions that have followed, such as Colorado Republican Federal Campaign Committee v. FEC (1996) and a successor case, FEC v. Colorado Republican Federal Campaign Committee (2001). Citizens United (2010) also is consistent with the Buckley framework.
In the 2001 Colorado Republican case, Justice Clarence Thomas was joined only by Justices Antonin Scalia and Anthony Kennedy in arguing that Buckleyshould be overturned. “I remain baffled that this court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend,” Thomas wrote.
Thomas’ remark points to another truth about the Supreme Court’s treatment of the First Amendment generally. Since Buckley was handed down, the Court has strengthened the freedom of speech in other contexts, to the point where even if the Court ultimately overturned Buckley, it would still have to assess campaign-reform measures in First Amendment terms.
“As long as American free-speech doctrine and culture remain so intolerant of the regulation of speech, any attempts to permit the regulation of electoral speech must confront the question of whether the domain of electoral speech can be distinguished from the larger domains it might be thought to inhabit,” wrote Frederick Schauer and Richard H. Pildes in the 1999 book If Buckley Fell.“If the regulation of electoral speech cannot be distinguished from these larger domains, then the regulation of electoral speech would be constitutionally doomed even were Buckley v. Valeo no longer the law.”
New laws, new challenges
Critics say that because the Buckley decision left campaign spending unregulated, the demand for money in politics has increased uncontrollably, creating incentives to get around the contribution limits. Like rising floodwaters, campaign money eventually overcomes the barriers that are meant to contain it. In a 1999 law review article, “The Hydraulics of Campaign Finance Reform,” Samuel Issacharoff and Pamela Karlan identified what they called the “Third Law of Political Motion,” namely that “every reform effort to constrain political actors produces a corresponding series of reactions by those with power to hold onto it.”
In 2008, candidates and parties spent more than $5.9 billion in federal presidential and congressional elections. Before 2002, the use of so-called “soft money” — independent donations used for party-building and other political-party purposes that are not subject to the same regulations as “hard money” donations — skyrocketed, reaching $487 million in the 2000 election. Worried that candidates can be just as beholden to these independent donors as to direct contributors, Congress banned soft money in 2002 BCRA, but overall election spending continued to rise.
As more and more special-interest money poured into political campaigns, reformers campaigned persistently for new legislation to build on the post-Watergate law. For years, new proposals would be defeated by a combination of political self-interest and First Amendment concerns.
But finally, a confluence of forces made 2002 the year campaign-finance legislation passed. Various fundraising scandals, as well as the political popularity of longtime reform advocate Sen. John McCain, R-Ariz., gave new momentum for substantial change. The House of Representatives passed the McCain-Feingold bill — known formally as the Bipartisan Campaign Reform Act — on Feb. 14, 2002, by a vote of 240 to 189. On March 20, the Senate passed the bill by a vote of 60 to 40. The legislation was set to take effect on Nov. 6, the day after the 2002 elections.
The bill’s sponsors said it was drafted with Buckley v. Valeo and First Amendment concerns in mind, and they said they were confident the new law would pass constitutional muster. “The First Amendment does not condemn us to a debased political process awash in unlimited, disguised donations,” said former solicitor general Seth Waxman, leading lawyer for the supporters of the BCRA. “We can have both free speech and a government of which our citizens are proud.”
The legislation was an amalgam of different features aimed at the biggest perceived problems on the campaign landscape:
- Perhaps the most significant provision bans all soft-money contributions to national political parties. These contributions have been permitted before, to pay for party-building and get-out-the-vote efforts. (Unaffected by Citizens United.)
- A second major provision prohibits corporations, trade associations and unions from directly paying for so-called “electioneering communications” that refer to candidates within 60 days of a general election or 30 days of a primary. These ads or communications can still be financed by corporate or union political-action committees, however, which operate under rules that require disclosure of donors and the amount of donations. (Overturned byCitizens United.) There is a $5,000 limit on contributions to PACs. (Unaffected by Citizens United.)
- The law also increases hard-money contribution limits — contributions whose donors are identified under existing disclosure rules. Individuals may donate up to $2,000 per candidate per election, instead of $1,000; up to $25,000 per national party committee, up from $20,000; and up to $10,000 per state and local party committee, instead of $5,000. The $5,000 limit on individual donations to PACs was not changed by the legislation.(Unaffected by Citizens United.)
- Other sections of the 2002 law prohibited contributions to candidates from individuals under 17, and from foreign nationals. (Unaffected by Citizens United.)
- Still another provision of the law denied candidates the lowest advertising rates on broadcast outlets unless they pledge not to refer specifically to any other candidate in the election. (Unaffected by Citizens United.)
The law’s critics predicted that major portions would not withstand First Amendment scrutiny. “I filed suit to defend the First Amendment right of all Americans to be able to fully participate in the political process,” said Sen. Mitch McConnell, R-Ky., the leading critic of the legislation.
The most vulnerable provision of the legislation, most agreed, was its prohibition of “electioneering” ads. Noted First Amendment lawyer Floyd Abrams, part of the legal team challenging the law, said, “Do you really want to limit speech at the time it matters most?”
Soon after Bush signed BCRA, the litigation went before a special three-judge panel in the District of Columbia, as required by the law. Reflecting the complexity of the law, and perhaps some internal squabbling, the panel did not issue its ruling in McConnell v. FEC until May 2, 2003, more than a year later. The panel produced more than 1,600 pages of mix-and-match opinions that upheld some provisions of the law but struck down others.
The panel struck down the calendar-based ban on electioneering ads. But, somewhat inexplicably, the ruling also upheld a modified “backup” version of this provision under which any communication broadcast by a group that promotes or attacks a specific candidate for federal office may not be paid for from corporate and union treasuries — no matter when the ad is run. Supporters of the legislation said that these organizations can get their messages across in other ways.
The free-speech argument against the soft-money ban was accepted in part by panel, which ruled that parties could raise soft money and spend it for so-called “mixed” party purposes such as voter-registration and “get out the vote” campaigns.
Both sides appealed the ruling, and just over a month later, the Supreme Court agreed to review the cases on an expedited basis. The Court scheduled an unusual four-hour session of oral arguments for Sept. 8, 2003 – a month before it normally commences its fall term. The tenor of the oral arguments left Court-watchers uncertain about the outcome, but many were convinced that at least some of the law would be struck down.
In the end, however, the voices of justices like Stevens and Stephen Breyer must have held sway, persuading the majority to leave the law reasonably intact — unlike its 1974 predecessor. They also convinced fellow justices to back away from their previous tendency to second-guess congressional motives. The evidence of a broken political system was strong enough, the majority agreed, to justify giving Congress the leeway to devise various ways of restricting campaign money.
The main Stevens-O’Connor ruling voiced broad suspicion of money in politics that goes beyond what it termed “classic quid pro quo” donations that buy the vote of an officeholder or candidate.
Stevens and O’Connor recited the “disturbing” findings of the Senate committee that looked into campaign abuses in the 1996 presidential election. The torrent of soft money resulted in a “meltdown” of the campaign-finance system, the committee concluded.
Giving the First Amendment too much weight in the context of campaign regulation, the majority asserted, “would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies but according to the wishes of those who have made large financial contributions valued by the officeholder.” Joining Stevens and O’Connor were Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.
Commentators were surprised that the majority gave the First Amendment such short shrift. “To me the big picture is the Court’s cursory dismissal of First Amendment arguments,” said Loyola Law School professor Rick Hasen, who runs an election-law blog. Although Hasen supported the ruling in general, he criticized the justices for reaching their decision “too easily.”
All of the classic First Amendment arguments that usually work to strike down government regulation of speech — vagueness, overbreadth, content discrimination and violation of associational rights — were cast aside with brief treatment.
Hasen wrote, “Buckley may not quite be dead yet, but the opinion marks the completion of a seismic shift … away from Buckley and toward a more holistic view of the democratic process and the proper role of money in politics.”
Dissenting justices saw this shift as an omen of future First Amendment decisions that would give legislative goals too much weight at the expense of traditional free-speech concerns. “Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption,” wrote Rehnquist.
Justice Thomas’ dissent was, as expected, the most sweeping. He even objected to parts of the law requiring campaign donors to identify themselves to the FEC. “The right to anonymous speech cannot be abridged based on the interests asserted by the defendants,” Thomas wrote.
But Thomas also saw long-term danger in what the majority had ruled. “The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press.” Thomas explained that, through editorials, news organizations and media companies seek to influence elections, just as other corporations try to do with campaign contributions. If the majority endorsed the idea that Congress has considerable leeway to stop efforts at “circumvention” of campaign laws, Thomas asserted, there would be little to stop Congress from regulating the media as well.
Justice Kennedy was also sharply critical in his dissent. “The Court, upholding multiple laws that suppress both spontaneous and concerted speech, leaves us less free than before, … . Today’s decision breaks faith with our tradition of robust and unfettered debate.”
In the aftermath of McConnell, it would have been hard to discern any real difference in the conduct of campaigns. Issue ads still appeared in primary states such as Iowa and New Hampshire, but they appeared to be legal because they either did not mention candidates’ names or they were financed by “hard money” — money legally raised under disclosure and contribution limits.
Political parties also adjusted to the soft-money ban, which shut down a significant source of funds. Independent organizations sprang up to undertake some of the same get-out-the-vote efforts that parties used to fund with soft money.
The Court majority appeared to recognize that no matter how comprehensive the BCRA appeared to be, new ways to raise and spend campaign money would be found, but it also seemed to encourage Congress to regulate those new pathways as well.
“We are under no illusion that BCRA will be the last congressional statement on the matter,” wrote Stevens and O’Connor in the Court’s main ruling inMcConnell. “Money, like water, will always find an outlet.”
In 2006, the Court examined a Vermont case that could have triggered a complete reappraisal of Buckley. Instead, however, the case resulted in a reaffirmation of Buckley’s holdings.
Ruling in Randall v. Sorrell, the high court on June 27, 2006, struck down Vermont’s sharp limitations on campaign contributions and spending. While the ruling was a fractured mess (six of the nine justices wrote opinions in the case, and dissenting Justice John Paul Stevens referred to the ruling as “today’s cacophony”), the justices said they were not sweeping aside 30 years of election-finance precedent but rather finding only that Vermont’s law — the strictest in the nation — set limits that unconstitutionally hamstrung candidates.
Legal experts agreed that the ruling did little to change established precedent.
It “does not alter the longstanding constitutional framework established inBuckley v. Valeo,” said Democracy 21′s Fred Wertheimer, adding, “Numerous campaign-finance laws have been upheld as constitutional under this framework over the past 30 years.”
Several other conclusions emerged after the 2006 ruling:
- The Court’s newest members at that point, Chief Justice Roberts and Justice Alito, pointedly did not join the Thomas and Scalia wrecking crew. Roberts, who seemed generally skeptical of campaign regulations during oral argument in February, signed on to Breyer’s main opinion, which was a warm embrace of Buckley. Alito, for his part, diverged from Breyer slightly, arguing that the Court did not need to reexamine Buckley to resolve the issue at hand. That might be an invitation to future Buckley challenges, but Alito was not ready to take on that battle with Randall. Neither Alito nor Roberts joined a concurrence by Kennedy that expressed general skepticism about the Court’s campaign jurisprudence. And neither new justice objected to at least some limitations on campaign contributions.Election-law expert Rick Hasen said after the 2006 ruling that Roberts may have been “voting strategically” to position himself as a moderate before moving toward the Thomas-Scalia position in future cases.
- Limits on campaign expenditures are unlikely to find majority support from the Court anytime soon. In Buckley, the Court said limiting what a candidate can spend has a direct impact on his or her free-speech rights. In 2006, only three justices — Stevens, Souter, and Ginsburg — were willing to disturb that doctrine. Campaign reformers were disappointed. “The decision marks a lost opportunity to end the arms race for campaign cash and make elections a contest of ideas rather than dollars,” said Stuart Comstock-Gray of the National Voting Rights Institute, which supported the Vermont law. Stevens seemed to agree, asserting that William Jennings Bryan, Abraham Lincoln and John Kennedy did not spend a dime to make memorable and effective campaign statements.
- Even limits on campaign contributions have their limits. While embracing the Buckley holding on campaign contributions, the Court agreed with Breyer: “We must recognize the existence of some lower bound.” Vermont’s contribution maximums of $200 in some cases, which applied to both individuals and parties, are “too restrictive,” Breyer said, and limited the ability of candidates and parties to mount effective campaigns. This determination is likely to slow reform efforts that include contribution limits that are substantially lower than existing ones — though Randallleaves room for further litigation.“Battles will rage across the country over the constitutionality of particular contribution-limit laws,” said Hasen. Still, this section of Randall was heartening to the American Civil Liberties Union, which opposes speech-limiting campaign-reform measures. “Contributions limits cannot be set so low that they prevent candidates from getting their message to the voters,” said ACLU legal director Steven Shapiro. “Vermont’s law had less to do with preventing corruption than suppressing speech.”
The Court affirmed its central role in ensuring that the democratic process functions. In some politically charged cases — such as those challenging political gerrymandering — the Court has withdrawn from battle, preferring to let elected branches make the decisions. But Breyer made it clear, in striking down Vermont’s low contribution limits, that the Court would intervene whenever “the constitutional risks to the democratic electoral process become too great.” NYU’s professor Pildes said of Randall, “The Court in this decision makes as clear as it has in any constitutional decision involving democratic institutions that the Court views itself as having an essential role to play in preserving the structural integrity of the democratic process.”
But the Randall decision did not prevent further litigation seeking to topple BCRA. James Bopp Jr., the leading legal strategist in First Amendment challenges to campaign-finance laws, viewed the electioneering-ad ban as a sinister effort by incumbents — namely the members of Congress who passed the law — to muzzle their challengers, who might benefit most from pre-election ads that question their policy positions. “Incumbent politicians have no constitutional authority to quash criticism of their conduct in office. The American Revolution was fought, and the First Amendment enacted, precisely to protect the people’s right to criticize the government,” said Bopp, who represented Wisconsin Right to Life in its effort to upend FEC rules.
The Court, in deciding FEC v. Wisconsin Right to Life (2007), ruled that “These cases are about political speech.” Roberts wrote, “Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election.”
In dissent, Justice Souter appeared to despair that the majority did not think that regulation was needed in the face of ever-increasing amounts of money spent on campaigns. Noting that federal and state campaigns had cost more than $4 billion in 2004, Souter suggested that much of that money was donated by individuals and corporations who thought they were buying some level of access by giving money to the candidates. “At a critical level, contributions that underwrite elections are leverage for enormous political influence,” wrote Souter. “Devoting concentrations of money in self-interested hands to the support of political campaigning therefore threatens the capacity of this democracy to represent its constituents and the confidence of its citizens in their capacity to govern themselves.”
But in the Wisconsin Right to Life decision, it appeared the Court majority was ready to give that argument less importance than it had before. Justices Scalia, Kennedy and Thomas, joined in a separate opinion that said the Court should go further in overturning its 2003 McConnell decision.
They noted that in the 1940s, the Supreme Court swiftly reversed its views in a First Amendment context, first barring and then permitting public school students to refuse to recite the Pledge of Allegiance. “This Court has not hesitated to overrule decisions offensive to the First Amendment … and to do so promptly where fundamental error was apparent.” McConnell was fundamentally flawed, they suggested, and deserved reversal right away. Chief Justice Roberts did not go that far, and Justice Alito joined Roberts in taking a go-slow approach.
In the Citizens United ruling in early 2010, however, Roberts and Alito were ready to take the next step. They joined the majority in a major rejection of the corporate expenditure provisions of McCain-Feingold and McConnell.Respecting precedent, though important, is not an ironclad rule, said Roberts in a concurrence. “If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants,” wrote Roberts, who was joined by Alito.
Citizens United marked a major turning point in the century-long history of efforts to regulate campaign money. The increasingly intricate regulatory regime began to collapse of its own weight because, in the Supreme Court’s view, it was choking political speech when it is needed the most: before an election.
In the wake of Citizens United, Congress began to return to the drawing board to find new ways to deal with the influence of campaign money without hindering campaign speech. Some limits remain on the books, though opponents of McCain-Feingold, emboldened by Citizens United, are making plans to target those provisions, as well.
It is new territory for Congress, but it has no choice: the Supreme Court has spoken.
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By the time America’s next president is named this November, campaign spending for all the candidates who ran in the election is projected to total about $4.4 billion—on television ads alone. In the wake of Citizens United, the landmark 2010 Supreme Court case that loosened restrictions on political expenditures, campaign financing has gone through the roof. Super PACs and the country’s wealthiest of the wealthy contribute enormous amounts of money to campaigns, helping candidates fight their way into—and stay in—the national spotlight.
But to what extent can money buy power? Dismantling campaign finance laws can create more incentive for candidates to bend their will to the people who write the biggest checks. Yet money on its own clearly isn’t enough to win a presidential race. Jeb Bush’s super PAC has raised more money in the first half of 2015 than President Obama’s main super PAC did for the entire 2012 election cycle. But Bush is still trailing behind Donald Trump, whose media attention has allowed him to spend just a fraction of Bush’s costs on his campaign.
So when does money go from being necessary for a candidate’s voice to be heard to corrupting the political process? In advance of a January 12 Zócalo event, “What Will the Presidential Elections Cost Us?”, we asked a variety of political analysts: How can we mitigate the effects of “big money” on American politics?
Miriam Marks: Create a more timely and effective system of donor disclosure
While campaign finance information must be made public by law, that doesn’t mean it’s easy to track down. Federal candidates’ reporting requirements allow them to submit campaign donor information on a quarterly basis and sometimes on handwritten documents that must be manually typed in by data-entry specialists. Super PACs, the more formidable big-money vehicles that emerged from the Citizens United decision, can accept unlimited contributions but need only file donors’ information quarterly in general election years and on a semi-annual basis in odd-numbered years. As a result, the identity of the largest donors to super PACs cannot be determined until months after the contributions were made.
The picture is no brighter with so-called “secret money groups”—organizations such as 501(c)(4) social welfare groups that are not required to disclose their donors under current IRS rules despite increasing levels of political activity. These groups are playing a large role in campaign finance precisely because they are able to operate entirely beyond the realm of disclosure and can exert their influence by funding candidates and super PACs in anonymity.
Better disclosure rules would require more frequent filing deadlines for entities that do file, with mandatory 24-hour reporting for large contributions. They would require a complete move away from any forms without machine-readable data. And they would need appropriate enforcement in tandem from the Federal Election Commission, the six-commissioner elections watchdog agency that unfortunately continues to be gridlocked by partisanship. These improvements would not only assist the journalists, researchers, and members of the public working to expose big money’s influence on politics in real-time, but would also potentially deter some of the most egregious cases of such influence by increasing accountability more generally.
Miriam Marks is data director at MapLight, a nonpartisan, nonprofit research organization that tracks money’s influence on politics
Ann M. Ravel: Enforce the laws that already exist
The 2016 election promises to be the most expensive in history, but the problem with money in politics isn’t the sheer amount being spent. Instead, the problem is a political system in which the overwhelming majority of political contributions come from a tiny number of individuals. In the first part of the 2016 election campaign cycle, just 158 families, along with companies they own or control, contributed nearly half of all the money that was raised to support the presidential candidates. Meanwhile, a huge number of people around the country are so disillusioned with government that they don’t even vote, let alone contribute to political causes.
We need to find new ways to engage more individuals in the political process, so that public policy decisions can reflect the input of all citizens, not just those of the donor class. To do so, some states are introducing constitutional amendments aimed at encouraging voter participation and civic engagement by improving disclosure of the true sources of political spending. Other states are experimenting with public financing of political campaigns. One promising development comes from Seattle, where a recently approved program will provide all qualified voters with four $25 vouchers they can use to support the candidates of their choosing.
On the federal level, the Federal Election Commission needs to enforce laws that require public disclosure of campaign finance information—laws that Congress established the commission to implement, and that the Supreme Court has repeatedly held are a crucial component of our democratic system of government. Disclosing the sources of political spending helps voters make informed decisions at the ballot box, and fosters trust in the political process. When even Justice Kennedy, the author of the Citizens United decision, acknowledges the disclosure system isn’t working, we need to do more.
Ann M. Ravel served as chair of the Federal Election Commission for 2015 and as the commission’s vice chair for 2014. She previously served as chair of the California Fair Political Practices Commission
Paul Jacob: Free up campaign finance even more
The effects of so-called “big money” on American politics are largely positive. In political discourse, more voices are preferable to fewer, but without the money to advertise or hire other speakers, a candidate lacks a large enough megaphone to reach the voting public with his or her ideas.
People will not agree, of course, with every message that garners enough funding to reach their eyes and ears. Yet even disagreeable ideas and candidacies have a right to be heard. Moreover, our democratic process functions better when ideas, both positive and negative, receive a public hearing.
While some observers decry that billionaires are buying our elections, this is demonstrably false. Certainly, Sheldon Adelson, Paul Singer, and the Koch brothers did not want President Obama to be re-elected in 2012, nor did Michael Bloomberg, George Soros, and Tom Steyer wish to see Republicans enlarge their congressional majority in 2014.
Super PACs do allow a handful of wealthy donors—or even a single one—to keep a candidacy alive when otherwise it might fold for lack of funds. But voters ultimately make the decision on each candidacy. If fundraising to carpet-bomb the public with TV spots were the sole determinant of political campaigns, Jeb Bush would be running away with this year’s GOP presidential race and asking former President Phil Gramm for an endorsement.
The best way to mitigate the negative effects of big money? Further free up the campaign finance system. Allow political parties to raise unlimited contributions again. And just as millionaires can make mega-contributions to super PACs, or nonprofit groups and Bruce Springsteen can perform a very valuable concert to influence voters, individual citizens should be free to contribute as much as they can to do likewise.
Will this corrupt candidates? Let the voters decide, candidate by candidate.
Paul Jacob is president of Citizens in Charge, a national organization advocating for every American’s right to initiative and referendum without regard to politics or party. He authors a daily commentary at ThisIsCommonSense.com
Lee Drutman: Institute small-donor matching
Running for public office is depressingly expensive these days. On average, it costs about $1.6 million to land a House seat, and about $10.5 million for a Senate seat. To pay for this, candidates naturally gravitate towards the wealthiest donors, who can write the biggest checks.
The problem is that these donors are a tiny, unrepresentative group. This winnows the potential pool of candidates down to only those who can effectively raise money from these donors. It also requires candidates to spend considerable time with these campaign donors, listening sympathetically. The result is a political agenda largely hemmed in by these donors’ preferences.
We need an alternative path to office. We need a system that encourages candidates to connect broadly with constituents first and directly—not only through massive ad-buys after they’ve raised their millions. Luckily, this system already exists: New York City now gives candidates for mayor, city council, and other offices $6 in public funding for every one dollar they raise in small individual contributions (as long as candidates abide by certain limits). This system, known as small-donor matching, resulted in wider participation and more donor diversity across income and race. Now, there is federal legislation in the works: The Government by the People Act (HR 20) would provide a 6-to-1 match for “small dollar” contributions up to $150—and a $25 tax credit for such donations.
A small-donor matching system changes the calculus of running for office. It pushes candidates to reach out more widely, engaging more citizens. And it provides a path for candidates who do not wish to climb through the needle’s eye of elite donor support. Given that campaign finance limits face serious obstacles in our current environment, small-donor matching systems are a promising—and constitutional—solution.
Lee Drutman is a senior fellow in the political reform program at New America, and the author of The Business of America Is Lobbying: How Corporations Became Political and Politics Became More Corporate
Bradley Smith: Embrace higher spending
This question presumes that we ought to mitigate the effects of “big money.” Is that right? What are the effects?
There is considerable evidence that higher spending in politics helps voters identify candidates, place them on an ideological scale, and connect them to stances on issues. Money is also used to fund voter registration and get-out-the-vote efforts.
Money can make races less equal, but it can also make them more equal. For example, it can balance out newspaper endorsements, name recognition unrelated to political achievement or acumen, and non-monetary support from special interest groups such as unions or trade associations. And while people often complain about the negativity of campaigns when they complain about money in politics, media coverage of candidates is often more negative than advertising.
It is alleged that money “drowns out” voices, but it more often makes new voices heard. If you were introducing a new soft drink, which would you prefer—a ban on spending on soft drink advertisements, or unlimited spending on soft drink ads? The latter would clearly be preferable, even if Coke spent more than you would on advertising. In a modern society, money is needed to promote a mass message.
There are real concerns money poses about equality and corruption, but the cure is often worse than the disease. Before the 1970s, the idea of limiting individual contributions to candidates was pretty much unheard of, and campaign finance laws were almost nonexistent. Has all the regulation since, aimed at limiting the effects of big money, made things better?
Bradley Smith is the chairman of the Center for Competitive Politics and former chairman of the Federal Election Commission
Craig Holman: Rely on public financing of elections and overturn Citizens United
Today, two opposing currents of thought on money in campaigns are streaming through America’s political culture. The first is that unlimited and unregulated money in politics creates a robust democracy. The second is that letting the vast imbalance of wealth dominate the political sphere is a danger to democracy, which is premised upon the principle of equality.
Polls show that attitudes lean toward the latter. Republicans, Independents, and Democrats alike are alarmed by money’s growing role. Many are strongly opposed to “dark money” in elections—funds given to nonprofits that lawfully are allowed to spend money on elections without disclosing their donors—and disgruntled by the Citizens United ruling. Yet congressional Republicans have blocked all legislative and regulatory efforts to open the books on money in politics, and the deadlocked Federal Elections Commission is unable to prevent candidates from skirting finance laws.
My organization, Public Citizen, is pushing for an executive order to require government contractors to disclose their political spending. I believe that the best ways to mitigate big money’s effects on politics are advocating for public financing of elections, especially at the state level where opportunities exist; pressing to limit “pay-to-play”—when businesses contribute to campaigns in the hopes of procuring government contracts—around the nation; and mobilizing legislators and the public to pass a constitutional amendment that would overturn the wildly unpopular Citizens United decision.
Craig Holman is a government affairs lobbyist for Public Citizen. Previously, he was a senior policy analyst at the Brennan Center for Justice, New York University School of Law. This article was written for Zocalo Public Square