Supreme Court Review,
First Amendment &
Campaign Finance
Litigation
2 hours
Copyright © 2017 by Comedian of Law LLC
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First Amendment
Congress shall make no law respecting the establishment of religion or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of grievances.
U.S. Const. amend. I.
History of Campaign Finance Regulations
Early America and the President who never told a lie: Let’s start back way at the beginning.
George Washington. Now he did not belong to a political party. Not so coincidentally, there
was also no funny business going on with George. But since then, we’ve had political parties
and … we have had a lot of funny business. Now of course, back in that day, there was no
social media. No Facebooking. Presidents didn’t tweet. Ah … those were the days! But …
there were newspapers. And newspapers informed the public. So you wanted to win the
election? You needed the newspapers to like you.
So at this time, the Federalists, led by Alexander Hamilton and John Adams, were able to curry
the favor of more newspapers than the Democratic-Republicans, led by Thomas Jefferson and
James Madison. In fact, it was a 4-1 ratio of newspapers supporting the Federalists over the
Democratic-Republicans. So logically … the Federalists won the next election! John Adams
beat out Thomas Jefferson. And so the idea of buying influence was born in America.
Political patronage. Under this system, contributors to a candidate were promised sinecures,
or well paid do nothing jobs in the next administration. Do no-thing jobs in DC? What? Do you
mean there are other jobs in DC other than do nothing jobs? Who knew?
Andrew Jackson was famous for this. It was called the spoils system. And Andrew Jackson
was famous for appointing those who contributed to his campaign to plum positions within his
administration.
The spoils system lead to the assassination of one of our beloved cartoon characters who
moonlighted as President – James Garfield. Apparently, he forgot how the spoils system
worked and didn’t promote Charles Guiteau to a post in his administration. Guiteau thought he
was the reason Garfield won the presidency, and wanted the France gig. Upset that he was
not packing his bags for Paris, he shot Garfield.
Pendleton Civil Service Reform Act of 1883. The spoils system lead to the passage of the
Pendleton Civil Service Reform Act of 1883, which required that civil service positions be filled
based on merit and exam results, rather than party affiliation. This was a pivotal moment as it
relates to our current problems. Political parties got their money from the spoils system. How
it worked was those persons who received these plush jobs were expected to pay “taxes” to
the parties that were responsible for them getting their jobs. You get a plush job, you pay your
dues. But since those jobs were being cut back, the political parties had to go elsewhere to
get their funding. So they turned to corporations and wealthy individuals. But a different kind
of shake-down occurred as they threatened corporations with new regulations if they didn’t pay
their dues.
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Things took a subtle, if not dramatic shift, during the 1896 election. Wealthy Ohioan Mark
Hanna came up with a new campaign strategy. He asked corporations to get involved in
politics. He asked corporations to give a quarter of one percent of their earnings to the
republican party. The Republican party used that money to run a new campaign with posters,
badges, and buttons bearing McKinley’s image. It worked, and McKinley won. Money equals
power. And more money equals … more power!
But there was public backlash to this. People didn’t like the idea of the wealthy and
corporations having an undue influence in politics. So naturally, there was some public
backlash to this. Up next – Big Teddy. The Trust buster. Teddy Roosevelt became president,
and seized on this anti-corporate sentiment. And he proposed that all contributions by
corporations should be forbidden by law.
Tillman Act of 1907. The Tillman Act prohibited corporations and national banks from
contributing money directly to presidential or congressional campaigns.
Federal Corrupt Practices Act of 1910. This Act required House candidates to publically
disclose campaign spending and contributions.
Taft-Hartly Act of 1947 prohibited corporate expenditures as well as corporate contributions.
Birth of the PAC. Because corporations couldn’t spend its own treasury dollars on a candidate,
they still wanted the influence. So a system was created whereby the employees would pool
their money together, outside of the corporate treasury, and this pooled money would then be
used to buy influence. Labor Unions created a segregated fund, separate from its general
treasury, where members could give to the union for the purpose of making campaign
contributions and expenditures.
Publically Funded Elections and the Revenue Act of 1971. Another way to curb corruption was
to create publically funded elections. This Act established a public campaign fund for eligible
presidential candidates.
Watergate. Created significant public mistrust of government. happened.
The Federal Elections Campaign Act.
• Created the FEC to enforce compliance with campaign finance law.
• Set strict contribution limits.
• Limited the amount of money a candidate could give to his own campaign
• Placed total spending limits for presidential and congressional elections.
• Created a voluntary system of public financing for presidential elections.
Buckley v. Valeo, 424 U.S. 1 (1976)
• “Virtually every means of communicating ideas in today’s mass society requires the
expenditure of money.”
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The government pointed to a 1972 report that found that 2-3 percent of the wealthiest
people in the country were responsible for 95 percent of the financing for congressional
elections.
In addition, the report found that many interest groups gave money to two or more
opposing candidates running for the same office.
Contribution limits on individuals were upheld.
The Independent expenditure limits on individuals were struck down.
The court left intact the prohibitions on corporate contributions and expenditures.
Issue advocacy was permitted. A corporation could not make political contributions or
expenditures, but it could advocate for issues. So what is the difference between
issues and supporting a candidate? The prohibitions only pertained to expenditures for
communications that in express terms advocate the election or defeat of a clearly
identified candidate for federal office.
This gave rise to magic words. As long as the communication avoided the magic
words, it was likely ok. Magic words included: “vote for” “elect” “support” “cast your
ballot for” defeat or reject.
The court also struck down the limitation on how much candidates could spend on their
own campaigns.
In addition, the court struck down ceilings on overall campaign expenditures.
The Court upheld the disclosure requirements.
Bipartisan Campaign Reform Act, aka BCRA, aka McCain-Feingold. McCain Feingold was
really designed to confront two problems that had been identified since FECA was passed: soft
money and issue ads. In 1984, soft money only accounted for 5% , or 21.6 million of the total
spending of the two major political parties. By 2000, soft money accounted for 42%, or 498
million of the two major parties total spending. In addition, the vast majority of this soft money
was given by large donors. For instance, in 2000, 60% of the soft money originated from only
800 donors. And again, the largest of these corporate donors were giving to both parties.
McCain Feingold prohibited political parties from raising or spending any money not subject to
the federal limits. This ended soft money at the party level.
Recent Supreme Court Cases on Campaign Finance Activity
Citizens United v. FEC, 558 U.S. 310 (2010)
Facts: A political advocacy group wanted to produce and promote a movie called Hillary during
the 2008 Presidential election, but refrained from doing so because BCRA prohibited
corporations from making independent political expenditures during federal elections. In
addition, BCRA required those who made the independent expenditure to disclose the
speaker.
Issue: Can Congress prohibit corporations from making independent political expenditures
during a federal election?
Holding: No.
Rationale/interesting quotes:
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The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions
of McConnell v. FEC by holding that political speech may not be banned based on the
speaker's corporate identity.
By a 5-to-4 vote, the majority held that corporate funding of independent political
broadcasts in candidate elections cannot be limited.
The majority maintained that political speech is indispensable to a democracy, which is
no less true because the speech comes from a corporation.
The majority also held that the BCRA's disclosure requirements as applied were
constitutional, reasoning that disclosure is justified by a "governmental interest" in
providing the "electorate with information" about election-related spending resources.
The Court upheld the disclosure requirements for political advertising sponsors and it
upheld the ban on direct contributions to candidates from corporations and unions.
McCutcheon v. FEC, 134 S. Ct. 1434 (2014)
Facts: BCRA imposed separate limits on the amounts that individuals may contribute to federal
candidates and other political committees. Adjusted for inflation, individual could contribute up
to $2,500 per election to federal candidates, up to $30,800 per calendar year to a national
party committee and up to $5,000 per calendar year to any non-party political committee.
BCRA also imposed an overall limit on the aggregate amount individuals could contribute in a
two-year period. After adjusted for inflation, an individual could contribute no more than a total
of $46,200 to all federal candidates, and no more than $70,800 to federal political action
committees and political party committees.
Alabama resident Shaun McCutcheon wanted to contribute more than the current biennial limit
permits, and the RNC would like to receive contributions from individuals like Mr. McCutcheon
that exceeded the aggregate limits.
McCutcheon challenged both the $46,200 aggregate limit on candidate contributions and the
$70,800 aggregate limit on other contributions as violating the First Amendment.
Issue: Can Congress limit the aggregate amount that an individual can contribute in an election
cycle to all candidates?
Holding: No.
Rationale/interesting quotes:
• “The right to participate in democracy through political contributions is protected by the
First Amendment, but that right is not absolute. Our cases have held that Congress
may regulate campaign contributions to protect against corruption or the appearance of
corruption. See, e.g., Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per curiam).”
• “Congress may target only a specific type of corruption—‘quid pro quo’ corruption . . .
Spending large sums of money in connection with elections, but not in connection with
an effort to control the exercise of an officeholder’s official duties, does not give rise to
quid pro quo corruption. Nor does the possibility that an individual who spends large
sums may garner ‘influence over or access to’ elected officials or political parties.”
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The Court concluded that “the aggregate limits on contributions do not further the only
governmental interest this Court accepted as legitimate in Buckley. They instead
intrude without justification on a citizen’s ability to exercise ‘the most fundamental First
Amendment activities.’”
While the Court’s decision removed the overall cap on individual contributions, it did not
affect the Act’s base limits on individual contributions to federal candidate campaigns,
PACs or party committees.
Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)
Facts: Arizona enacted a campaign finance law that provides matching funds to candidates
who accept public financing. The law gave an initial sum to candidates for state office who
accepted public financing and then provided additional matching funds based on the amounts
spent by privately financed opponents and by independent groups. In 2008, some Republican
candidates and a political action committee, the Arizona Free Enterprise Club, filed suit arguing
that to avoid triggering matching funds for their opponents, they had to limit their spending and
thus their speech.
Issue: Does the First Amendment prohibit linking the publically financed funds with the giving/
spending of opponents?
Holding: Yes
Rationale/interesting quotes:
• “Arizona's matching funds scheme substantially burdens political speech and is not
sufficiently justified by a compelling interest to survive First Amendment scrutiny….”
• Justice Elena Kagan dissented, joined by Justices Ruth Bader, Stephen Breyer and
Sonia Sotomayor. "The First Amendment's core purpose is to foster a healthy, vibrant
political system full of robust discussion and debate…. Nothing in Arizona's anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional
protection. To the contrary, the Act promotes the values underlying both the First
Amendment and our entire Constitution by enhancing the 'opportunity for free political
discussion to the end that government may be responsive to the will of the people.'"
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014)
Facts: Prior to the 2010 general election, Susan B. Anthony List announced that it intended to
put up a billboard in the district of then-Congressman Steven Driehaus. The billboard would
have asserted that Driehaus's voted in favor of taxpayer-funded abortion. Citing threats of legal
action by Driehaus's counsel, the company that owned the billboard space refused to put up
the ad. Driehaus filed a complaint with the Ohio Elections Commission alleging that SBA List
violated Ohio's campaign laws by making false statements about his voting record. SBA List
filed an action in federal district court arguing that the Ohio statutes infringed upon its rights to
free speech and association under the First Amendment. Driehaus withdrew his complaint
upon losing his bid for re-election and subsequently moved to Swaziland for an assignment
with the Peace Corps.
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Issue: Does Susan B. Anthony List have standing to bring this pre-enforcement challenge?
Holding: Yes
Rationale/Interesting quotes
• A preenforcement challenge to an Ohio statute that prohibits certain “false statements”
during a political campaign is justiciable, and the challengers have alleged a sufficiently
imminent injury for purposes of Article III, when they have pleaded specific statements
that they intend to make in future election cycles that are arguably proscribed by the
Ohio law and there is a history of past enforcement of the law insofar as one challenger
was the subject of a complaint in a recent election cycle.
• Pre-enforcement challenges are justiciable when circumstances indicate that threatened
enforcement of the statute is sufficiently imminent.
• The petitioners' political speech focused on the issue of support for the Affordable Care
Act, not simply on Driehaus, and thus was likely to continue despite Driehaus'
departure. The Court determined that there was a threat of future enforcement even
though petitioners maintained their statements were true.
• Because the respondents did not disavow enforcement if petitioners carried out their
speech in the future, the Court held that the prospect of enforcement was not "imaginary
or speculative" and that petitioners had shown sufficient injury for pre-enforcement
review.
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