Whereas my previous posts have focused on a quantitative analysis of public policy, this post addresses the issue of campaign finance from a constitutional law standpoint. Over the past semester I’ve had the privilege of reading in detail many court cases through American history as a result of a class I took called Civil Liberties. Public policymaking requires an analysis of both the economic implications and the legal justification. In this post, I focus on the Supreme Court cases Buckley v. Valeo (1976) and Citizens United v. Federal Election Commission (2010), the latter of which overturned part of the Bipartisan Campaign Reform Act (BCRA) of 2002.
Buckley was the first major Supreme Court case which dealt with campaign finance and political speech. There are several aspects of campaign finance that the Court addressed in Buckley: contributions by individuals and corporations to particular candidates, independent expenditures on behalf of a candidate, contributions by candidates to their own campaigns, and expenditures by campaigns.
The Court ruled in Buckley that restrictions on expenditures by campaigns reduce quantity of expression by “restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” The Court claimed that political communications, such as rallies, pamphlets, or media campaigns are “indispensable instruments of effective political speech,” and that financing these activities counts as speech for constitutional purposes. So limits on direct expenditures, by a campaign or individual, were found unconstitutional.
Contributions to a candidate or political group, on the other hand, could be regulated. “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 involve speech by someone other than the contributor.” The Court argued that large contributions are frequently made “to secure a political quid pro quo” from politicians, and can be regulated for the purpose of reducing the appearance of corruption, since it does not impose a direct restraint on political speech. In addition, the Court held that the First Amendment’s protection of free speech is not dependent on an individual’s wealth, and so limiting an individual’s contributions to his or her own campaign is unconstitutional.
In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA), which was sponsored by Senators John McCain and Russell Feingold. The act increased the limits on contributions to candidates and parties. Currently, individuals and (single-candidate) political action committees (PACs) may give $2,500 to a particular candidate and $30,800 to a national party committee.
Though several other cases on campaign finance were heard by the Supreme Court between 2002 and 2010, Citizens United is the most recent major case. The non-profit corporation Citizens United released a documentary in January 2008 attacking Hillary Clinton. The BCRA prohibited corporations from broadcasting within thirty days of a primary any advertisement that advocated the election or defeat of a specific candidate. The major questions in this case were whether a corporation or union is considered an individual for constitutional purposes, and whether restrictions on candidate-specific media violate the First Amendment.
Justice Anthony Kennedy’s majority opinion reaffirmed that political speech is protected speech. He stated that the First Amendment does not distinguish between the media and other corporations, and groups of individuals are afforded the protection of free speech just as much as individuals. He wrote, “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.” Media corporations were thus protected under the First Amendment, and thus the BCRA’s restrictions on corporate independent expenditures were unconstitutional.
I remember being in Aruba when this decision was handed down and seeing President Obama appear in an ad denouncing the court’s decision:
http://www.youtube.com/watch?v=nOMwtauuzs8
Citizens United was a close 5-4 vote, with the more conservative wing of the Court – Roberts, Alito, Thomas, Kennedy, and Scalia – in the majority and Stevens, Sotomayor, Breyer, and Ginsburg voting in the minority. The majorities in Buckley and Citizens United both found political communications to be a form of speech protected by the First Amendment, and upheld restrictions on contributions but not expenditures. According to the Court, money is speech, and the level of protection afforded an individual of his right to free speech does not depend on his or her wealth.
Is the Court right?
– Anthony
Where's the Beef? 