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Introduction
"Money talks:"
Does that
mean cash contributions are "speech" within the meaning of the First
Amendment?
In Buckley v Valeo (1976), the Supreme Court answered,
"Yes"--at
least for cash contributions to political campaigns. The Court
concluded
that money is an essential ingredient of a modern political campaign,
being
required to rent halls, pay for candidate travel, and--most
importantly--but
advertising time and space. As such, cash contributions are too
closely
tied to expressive activities to be considered merely "conduct."
Buckley
considered
the constitutionality of a federal campaign financing law that imposed
numerous restrictions on both candidate's own spending and the
contributions
of individuals to campaigns. The challenge to the act was brought
by unlikely political bedfellows, including conservative Senator James
Buckley and liberal anti-war candidate Eugene McCarthy.
The Court in Buckley
upheld some of the provisions of the act, while striking down
others.
In particular, the Court invalidated limits placed on the personal
expenditures
of candidates for federal office, thus paving the way for runs by
wealthy
candidates such as Ross Perot in 1992. The Court also struck down
a $1000 limit on individual spending on behalf of a campaign,
concluding
that the restriction was not closely tailored to serving the
government's
asserted interest in preventing corruption. On the other hand, the
Court
upheld limits on individual contributions to campaigns and the
use
of federal matching funds for candidates who agree to abide by federal
spending limits. The Court also upheld donor disclosure
requirements,
except as they apply to controversial third parties where disclosure
might
prove embarrassing to donors.
Citizens
Against Rent
Control (1981) considered the legality of a Berkeley, California
ordinance
limiting contributions to campaigns to support or oppose ballot
measures
to $250. The Court invalidated the limitation, concluding that
the
concern in Buckley about "buying influence" had little applicability in
the case of ballot measures. In reaching its conclusion, the
Court
seemed either to be applying strict scrutiny--or something very close
to
it.
In 2007, the
Court signalled a new willingness to strike down campaign finance
regulations. In Federal
Election Commission v Wisconsin Right to Life, the Court voted 5
to 4 to invalidate a key section of the McCain-Feingold Act that banned
corporations and unions from buying broadcast ads that mention the
names of candidates for federal office in the weeks immediately before
an election.
Cases
Buckley
v Valeo (1976)
Citizens
Against Rent Control v Berkeley (1981)
McConnell
v F.E.C. (2003) (full text)
Questions
1. Do you agree that
campaign
financing laws raise serious First Amendment issues?
2. How strong
is the
government interest in preventing very wealthy individuals or
corporations
from having undue influence over election outcomes?
3. How strong
is the
government interest in preventing individuals or corporations from
effectively
"buying access" to candidates that they support financially?
4. How would
the First
Amendment apply to limitations on contributions to political parties,
as opposed to the candidates themselves? |
Senator James L. Buckley (R-NY)(3 of
clubs) and Senator
Eugene McCarthy (D-Minn.)(3 of hearts), plaintiffs in the Supreme Court
case
of Buckley v Valeo (cards copyrighted
by Action
Publishing).
Senators Russ Feingold (D-Wis) and John
McCain (R-Ariz),
authors of the Bipartisan Campaign Reform Act (BCRA). The U. S.
Supreme
Court upheld all but a few minor provisions of the act in a 298-page 5
to 4 decision announced December 10, 2003. (McConnell v F.E.C.)
A key provision of the Act was invalidated, however, in 2007 in F.E.C. v Wisconsin Right to Life.
The New York Times
had this to say about the decision:
The Supreme Court delivered a stunning
victory for political
reform yesterday, upholding the McCain-Feingold campaign finance law
virtually
in its entirety. The court rejected claims that the law violates the
First
Amendment, making it clear that Congress has broad authority in acting
against the corrupting power of money in politics. The ruling is cause
for celebration, but it should also spur Congress to do more to clean
up
our political system.
The Bipartisan Campaign Reform Act of
2002, widely known
as McCain-Feingold, closed two gaping loopholes in campaign finance
law.
One was "soft money," the unlimited, and often very sizable,
contributions
to political parties that were then funneled into federal campaigns.
The
other concerned sham "issue ads," commercials run just before an
election
that were unregulated because they purported to be about political
issues
but were actually intended to help particular candidates.
Groups ranging from the National Rifle
Association to
the American Civil Liberties Union, joined by some elected officials,
rushed
into court to challenge the law as an infringement on the First
Amendment.
The Supreme Court rejected those claims, 5 to 4. Given the choice of
seeing
the law as a restriction on speech or as a needed corrective to
corruption
in politics, the court came down firmly on the side of considering it a
corrective. It made clear that the free-speech test that applies to
campaign
contributions is a more forgiving one than is generally used for laws
that
prohibit speech itself. And it underscored that Congress had important
interests in preventing both political corruption and the appearance of
corruption.
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