Nahmod Law

This is the first of two posts on the Supreme Court‘s controversial First Amendment corporate expenditure decision dealing with campaign financing of federal elections, Citizens United v. FEC, No. 08-205 (1-21-10). This post, by way of background, sets out the important Supreme Court campaign finance decisions that led up to Citizens United,  a 5-4 decision whose majority opinion was authored by Justice Kennedy (over 50 pages) and whose dissenting opinion was authored by Justice Stevens (over 80 pages).

The next post will directly address Citizens United.

Buckley.  The story begins in 1976 with Buckley v. Valeo, 424 U.S. 1 (1976), a case involving the constitutionality under the First Amendment of various provisions of the Federal Election Campaign Act of 1971, together with related provisions of the Internal Revenue Code of 1954, as amended in 1974. These campaign finance reform provisions were enacted largely in response to the Watergate era campaign scandals of the Nixon administration. What is of primary concern for our purposes are those provisions limiting individual political contributions and expenditures relative to a clearly identified candidate for federal office, as well as those limiting campaign spending by candidates for federal office. The Act set out an individual contribution cap of $1,000 per candidate, an individual expenditure cap of $1,000 per candidate and an overall individual contribution cap of $25,000 in a single year. Expenditures coordinated with candidates counted as contributions. Other provisions restricted a candidate’s use of personal and family resources and limited the overall amount that a candidate could spend in campaigning for federal office.

In a bifurcated decision, the Court upheld the contribution limits but invalidated the expenditure limits. Applying strict scrutiny or something very close to it, the Court found that the contribution limits were constitutional. On the free speech side, there were associational and symbolic speech considerations, albeit with the mitigating factor that the contributor was not speaking directly so much as giving money to a “mouthpiece.” On the government side, there was the powerful interest in avoiding quid pro quo corruption and the appearance of corruption, and the danger of public loss of faith in the political process. This interest outweighed the free speech interest.

However, the expenditure limits violated the First Amendment because they directly limited the quantity of high value political speech of  individuals and candidates. The government interest in avoiding corruption and its appearance was inadequate to justify the expenditure caps, particularly in light of the expenditure coordination rules and the fact that individuals and groups could avoid expenditure caps simply by not referring to a specific candidate. “[T]he concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Bellotti.  Two years later, in 1978, came First National Bank of Boston v. Bellotti, 435 U.S. 765 (978), where the Court struck down a state statute prohibiting contributions and expenditures by corporations for the purpose of affecting referendum votes unless the referendum materially affected the property, business or assets of the corporation. The Court declared that the issue was not whether corporations had First Amendment rights, but rather that the statute was directed at speech indispensable to democratic decision-making.  The First Amendment rights of the potential audience to receive information were also adversely affected. The Court rejected the arguments that the statute was necessary to protect the integrity of the electoral process, to avoid unduly influencing the outcome and to avoid adversely affecting confidence in democracy. It also disagreed with the contention that corporations would otherwise drown out differing points of view.

The dissenters (White, Brennan and Marshall) maintained that the self-fulfillment rationale of the First Amendment was clearly not pertinent. Also, even though corporations were governed by the statute, individuals, shareholders, officers and customers could still express their views. The statute was not directed at equalizing voices but instead was designed to prevent advantaged corporations, permitted by the state to amass wealth for certain economic purposes, from using their wealth unfairly in the political process. “[The] State need not permit its own creation to consume it.”

Austin.  The third crucial case for our purposes is Austin v. Michigan Chamber of Commerce , 494 U.S. 652 (1990), handed down in 1990, which upheld a state statute prohibiting corporations from using corporate general treasury funds for independent expenditures for or against any candidate for state office, but allowing such expenditures from segregated funds used solely for political purposes (PACS). The Court emphasized the unique legal and economic characteristics of corporations (limited liability for owners and managers, perpetual life, separation of ownership and control and favorable treatment of the accumulation and distribution of assets), the unfair political advantages they have in the marketplace of ideas and the corrosive and distorting effects of immense aggregations of wealth. The statute was not about equalizing the relative influence of speakers on elections. Accordingly there was a compelling interest justifying the statute and the statute was sufficiently narrowly tailored because of the PAC option.

Justice Scalia dissented, arguing that the majority had permitted an unconstitutional condition. Also, the statute’s purpose was clearly to prevent speech; this was directly contrary to democratic traditions. Justice Kennedy, joined by Justices O’Connor and Scalia, also dissented and argued that a PAC was a burdensome disincentive to speech.

McConnell (and Wisconsin Right to Life).  The fourth important pre-Citizens United case, McConnell v. FEC, 540 U.S. 93 (2003), was handed down in 2003. The Bipartisan Campaign Reform Act of 2002 (BCRA), otherwise known as McCain/Feingold, amended the 1971 FECA. BCRA dealt with several post-Buckley developments, including issue ads and “soft money” (hard money is money contributed for the purpose of influencing an election for federal office; soft money is money, unregulated by the FEC, that is contributed to support activities intended to influence state and local elections, for voters’ drives, generic party advertising and for legislative advocacy advertisements (issue ads) which do not expressly advocate a candidate’s election or defeat.) There is much in this case, but for present purposes, what’s most important is the following.

Title II of Act used a new term, electioneering communication, and defined it as covering any broadcast, cable or satellite communication that refers to a clearly identified candidate for federal office that is made within 60 days before a general election and within 30 days before a primary and that is targeted to the relevant electorate.

Justices Stevens and O’Connor, joined by Souter, Ginsburg and Breyer, upheld the Act’s prohibition on corporations and unions from using funds in their general treasuries to finance such electioneering communications. This created no First Amendment problem because Congress’s power to prohibit corporations from using treasure funds to expressly advocate the election or defeat of candidates in federal elections “has been firmly embedded in our law.” The PAC option provided a constitutionally sufficient opportunity to engage in such express advocacy and BCRA merely extended this principle to electioneering communications. In addition, this provision was constitutional even for not for profit corporations such as the ACLU, NRA and NOW.

Justice Scalia dissented in part: “Given the premises of democracy, there is no such thing as too much speech.” Justice Kennedy, joined in part by Chief Justice Rehnquist and Justices Scalia and Thomas, also dissented in part. In his view, government could not be trusted to moderate its own rules for suppression of speech. Also, Austin was wrongly decided: the corporation as corporation was denied the opportunity to engage in political speech and PACs weren’t adequate constitutionally. Moreover, this prohibition of electioneering communications by corporations and unions could not be justified by the interest in preventing corruption and the appearance of corruption, the primary interest identified in Buckley.

Finally, it is worth noting the Court’s 2007 decision in FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007), where the Court, foreshadowing the outcome in Citizens United, found that BCRA could not be constitutionally applied to WRTL’s televised political advertisements—electioneering communications–that criticized Wisconsin’s senators for participating in a filibuster involving several of President Bush’s judicial nominees. The speech here was not the functional equivalent of express advocacy under the Act. Significantly, Justice Scalia, joined by Justices Kennedy and Thomas, concurred, but argued that Austin should not have been extended to electioneering communications and that, in so doing, McConnell was wrong and should be overruled. Also of interest, Justice Souter, joined by Stevens, Ginsburg and Breyer, dissented, and argued that the majority’s newly minted and limiting definition of electioneering communications—the ad must be susceptible only to the interpretation that it is an appeal to vote for or against a specific candidate—effectively overruled McConnell.

All of this set the stage for Citizens United which was handed down three years later.