First Amendment — Free Speech Clause: Political Speech

Amdt1.7.11.1 Overview of Campaign Finance

Federal and state governments regulate political campaign financing. At the federal level, the Federal Election Campaign Act (FECA)¹ imposes contribution limits, source restrictions for contributions, disclosure and disclaimer requirements for political advertising, and a presidential public financing system.² In a landmark 1976 ruling, Buckley v. Valeo, and its progeny, the Supreme Court has held that such regulation can infringe on First Amendment guarantees of freedom of speech and association.³ According to the Court, limits on campaign contributions—which involve giving money to an entity, such as a candidate’s campaign committee—and expenditures—which involve spending money directly for electoral advocacy—implicate rights of political expression and association under the First Amendment.⁴ Likewise, the Court has held that campaign disclosure and disclaimer requirements can infringe on the right to privacy of association and belief as guaranteed under the First Amendment.⁵ In evaluating challenges under the First Amendment, the Court has assigned different standards of review to various types of campaign finance regulation, based on the burdens imposed and the government interests served.⁶

Amdt1.7.11.2 Campaign Finance Contribution Limits and Source Restrictions

The Supreme Court in Buckley v. Valeo held that contribution limits are subject to a more lenient standard of review than expenditure limits because they impose only a marginal restriction on speech and will be upheld if the government can demonstrate that they are a “closely drawn” means of achieving a “sufficiently important” governmental interest.¹ Unlike expenditure limits, which reduce the amount of expression, the Court opined that contribution limits involve “little direct restraint” on the speech of a contributor.² While acknowledging that a contribution limit restricts an aspect of a contributor’s freedom of association by affecting a contributor’s ability to support a candidate, the Court determined that a contribution limit still permits symbolic expressions of support and does not infringe on a contributor’s freedom to speak about candidates and issues.³

Under the First Amendment, the Supreme Court has evaluated the constitutionality of specific types of contribution limits. In Buckley, the Court upheld the constitutionality of the Federal Election Campaign Act (FECA)⁴ base limits, which cap the amounts of money an individual can contribute to a candidate, party, or political committee.⁵ In assessing whether a contribution limit is closely drawn, the Court determined it necessary to examine whether the limit is so low that it significantly impedes a candidate from raising the necessary funds for effective advocacy.⁶ In Nixon v. Shrink Missouri Government PAC, the Court announced that while limits must be closely drawn to a sufficiently important interest, the amount of the limitation “need not be ‘fine tuned.’”⁷ In contrast, in Randall v. Sorell, in a plurality opinion, the Court determined that contribution limits were too low to comport with First Amendment free-speech guarantees when they were substantially lower than limits previously upheld by the Court and limits in effect in other states.⁸

Similarly, in McConnell v. FEC, the Supreme Court upheld against facial constitutional challenges, among other things, a prohibition on national political parties fundraising or spending federally-unregulated funds, known as soft money.⁹ The Court determined that the subject provisions of law are, in effect, contribution limits and source restrictions—not expenditure limits because they do not limit the total amount of funds that parties can spend.¹⁰ Hence, the Court applied the “less rigorous” standard of scrutiny that it applied in Buckley to contribution limits.¹¹ However, the McConnell Court invalidated a prohibition on individuals age seventeen and under from making contributions, reasoning that minors enjoy First Amendment protection and that the prohibition was not closely drawn to serve a sufficiently important government interest.¹²

The Court has considered the constitutionality of aggregate contribution limits, which cap the total amount that an individual can contribute to a candidate, political party, or political committee. In Buckley, the Court upheld the constitutionality of a FECA aggregate contribution limit in effect in 1976, characterizing the limit as a “quite modest restraint” that served to prevent circumvention of base limits.¹³ In McCutcheon v. FEC, however, in a plurality opinion, the Court invalidated a similar aggregate limit, determining that regardless of whether strict scrutiny or the “closely drawn” standard applies, the Court needed to “assess the fit” between the government’s stated objective and the means to achieve it.¹⁴ Observing a “substantial mismatch” between the two, the opinion concluded that even under the more lenient standard of review, the limits could not be upheld.¹⁵

In Davis v. FEC, the Supreme Court held that a FECA provision establishing a series of staggered increases in contribution limits for candidates whose opponents significantly self-finance their campaigns violates the First Amendment.¹⁶ The Court reasoned that limits on a candidate’s right to advocate for his or her own election are not justified by the compelling governmental interest of preventing corruption because the use of personal funds actually lessens a candidate’s reliance on outside contributions, thereby counteracting coercive pressures and risks of abuse that contribution limits seek to avoid.¹⁷

The Supreme Court has also upheld the constitutionality of laws limiting who can make a campaign contribution, known as a source restriction. In FEC v. Beaumont, the Supreme Court upheld the constitutionality of a FECA prohibition on corporations making direct campaign contributions from their general treasuries in connection with federal elections.¹⁸ The Court observed that large, unlimited contributions can threaten “political integrity,” necessitating restrictions in order to counter corruption or its appearance.¹⁹ In that same vein, while not issuing an opinion, the Supreme Court in Bluman v. FEC affirmed a lower court ruling that upheld the constitutionality of another FECA source restriction that prohibits contributions by foreign nationals.²⁰

Amdt1.7.11.3 Campaign Finance Expenditure Limits

In contrast to contribution limits, the Supreme Court has determined that expenditure limits impose a substantial restraint on speech and association and, hence, are subject to a strict scrutiny standard of review that requires narrow tailoring to serve a compelling governmental interest.¹ According to the Court in Buckley v. Valeo, expenditure limits impose a restriction on the amount of money that a candidate can spend on communications, thereby reducing the number and depth of issues discussed and the size of the audience reached.² Such restrictions, the Court determined, are not justified by an overriding governmental interest because expenditures do not involve money flowing directly to the benefit of a candidate’s campaign fund and hence, the risk of quid pro quo corruption does not exist.³ Upon a similar premise, the Court rejected the government’s interest in limiting the ability of a wealthy candidate to draw upon personal wealth to finance a campaign and invalidated a law limiting expenditures from personal funds.⁴ When a candidate self-finances, the Court observed, the candidate’s dependence on outside contributions is reduced, thereby lessening the risk of corruption.⁵

Relying on Buckley, in the 2010 decision of Citizens United v. FEC, the Court invalidated two FECA prohibitions on independent electoral spending by corporations and labor unions.⁶ The Court invalidated, first, the long-standing prohibition on corporations and labor unions⁷ using their general treasury funds for independent expenditures,⁸ and second, a Bipartisan Campaign Reform Act (BCRA) prohibition on the use of such funds for electioneering communications.⁹ According to the Court, independent expenditures and electioneering communications are protected speech, regardless of whether the speaker is a corporation. Although the statutory prohibition contained an exception that permitted the use of corporate treasury funds to establish, administer, and solicit contributions to a political action committee (PAC) for such spending,¹⁰ the Court determined that merely permitting speech through a PAC does not equate to allowing a corporation to speak directly because corporations and PACs are separate associations.¹¹ The Court also concluded that upholding the ban on corporate independent electoral spending would have the “dangerous, and unacceptable” result of permitting Congress to prohibit the political speech of media corporations.¹²

While invalidating the FECA ban on corporate and union-funded independent expenditures, the Citizens United ruling also overturned a 1990 ruling, Austin v. Michigan Chamber of Commerce,¹³ determining that it conflicted with a 1978 precedent, First National Bank of Boston v. Bellotti.¹⁴ In Bellotti, the Court had invalidated a state prohibition on corporate independent expenditures related to referenda, holding that the government cannot restrict political speech because the speaker is a corporation.¹⁵ Criticizing the Austin decision for “bypass[ing] Buckley and Bellotti,” the Court in Citizens United rejected the “antidistortion interest” that the Court in Austin “identified” to justify limits on political speech.¹⁶ According to the Court, independent expenditures, including those made by corporations, do not cause corruption or the appearance of corruption.¹⁷ The Court further denounced the Austin precedent for permitting “interfer[ence] with the ‘open marketplace’ of ideas protected by the First Amendment” through a ban on speech by millions of associations of citizens—many of them small corporations without large aggregations of wealth.¹⁸

Similarly, in invalidating the BCRA-enacted prohibition on corporate and union treasury-funded electioneering communications, the Citizens United ruling overruled a portion of its 2003 decision in McConnell v. FEC that upheld the facial validity of the prohibition, concluding that the McConnell decision had relied on Austin.¹⁹ The Court reached this conclusion despite a limiting principle imposed by a 2007 ruling, FEC v. Wisconsin Right to Life, Inc. (WRTL).²⁰ In WRTL, the Court had narrowed the definition of an electioneering communication to mitigate concerns that the law could prohibit First Amendment protected issue speech, known as issue advocacy. According to the Court in WRTL, the term “electioneering communication” could constitutionally encompass only express advocacy²¹—communications expressly advocating for the election or defeat of a clearly identified candidate, including for example, statements such as “vote for” or “vote against”—or the “functional equivalent” of express advocacy. Further, the Court in WRTL advised that communications that could reasonably be interpreted as something other than an appeal to vote for or against a specific candidate could not be considered electioneering communications.

Amdt1.7.11.4 Campaign Finance Disclosure and Disclaimer Requirements

The Supreme Court has generally affirmed the constitutionality of campaign disclosure requirements. In Buckley v. Valeo, the Court identified three governmental interests justifying Federal Election Campaign Act (FECA) disclosure requirements.¹ First, the Court determined that disclosure provides the electorate with information as to the source of campaign money, how it is spent, and “the interests to which a candidate is most likely to be responsive”—an informational interest.² Second, the Court stated that disclosure serves to deter corruption and its appearance by uncovering large contributions and expenditures “to the light of publicity,” observing that with this information, voters are better able to detect illicit “post-election special favors” by an officeholder in exchange for the contributions.³ Third, the Court identified disclosure requirements as an essential method of detecting violations for referral to law enforcement.⁴ In upholding the constitutionality of FECA’s disclosure requirements for independent expenditures, the Court determined that so long as they encompass only funds used for express advocacy communications, the requirement is constitutional.⁵ Likewise, in McConnell v. FEC, rejecting a facial challenge to enhanced disclosure requirements, the Court observed that the Buckley ruling distinguished between express advocacy and issue advocacy for the purposes of statutory construction, not constitutional command, and therefore, the First Amendment did not require creating “a rigid barrier” between the two in this case.⁶ In other words, the Court determined, because electioneering communications are intended to influence an election, the absence of “magic words” of express advocacy does not obviate the government’s interest in requiring disclosure of such ads in order to combat corruption or its appearance.⁷

Expanding on its holding in Buckley, in subsequent campaign finance disclosure cases, the balancing of interests has tipped in favor of the constitutionality of disclosure requirements under the First Amendment. In Citizens United v. FEC, the Court upheld FECA’s disclosure requirements for electioneering communications as applied to a political documentary and broadcast advertisements promoting it.⁸ The Court determined that while they may burden the ability to speak, disclosure requirements “impose no ceiling on campaign-related activities,” and “do not prevent anyone from speaking.”⁹ Accordingly, the Court evaluated the requirements under a standard of “exacting scrutiny,” a less-rigorous standard than the “strict scrutiny” standard the Court has used to evaluate restrictions on campaign expenditures.¹⁰ Exacting scrutiny requires a “substantial relation” between the disclosure requirement and a “sufficiently important” government interest, the Court announced.¹¹ Further, in Doe v. Reed, the Court upheld the constitutionality of a Washington State public records law.¹² Categorizing the statute as a disclosure requirement and, therefore, “not a prohibition of speech,” the Court evaluated the law under the standard of exacting scrutiny.¹³ The Court determined that the law was substantially related to the governmental interest of safeguarding the integrity of the electoral process and announced that public disclosure “promotes transparency and accountability in the electoral process to an extent other measures cannot.”¹⁴

Similar to disclosure requirements, the Supreme Court has upheld the constitutionality under the First Amendment of campaign finance disclaimer requirements.¹⁵ In McConnell v FEC, the Supreme Court upheld the facial validity of the FECA disclaimer requirements, as amended by Bipartisan Campaign Reform Act (BCRA).¹⁶ Specifically, the Court determined that the FECA disclaimer requirement “bear[ ] a sufficient relationship to the important governmental interest of ‘shedding the light of publicity on campaign financing.’”¹⁷ Revisiting the issue in Citizens United, the Court upheld the disclaimer requirement in BCRA as applied to a political documentary and the broadcast advertisements that an organization planned to run promoting the movie.¹⁸ According to the Court, while they may burden the ability to speak, like disclosure requirements, disclaimer requirements “impose no ceiling on campaign-related activities,” and “do not prevent anyone from speaking.”¹⁹

Amdt1.7.11.5 Lobbying

To lobby means generally “to try to persuade a government official . . . in an attempt to influence some action proposed to be taken.”¹ In its most basic form, lobbying is a form of petitioning the government,² a right protected under the First Amendment.³

While the First Amendment protects the right to petition, the Supreme Court has determined that Congress may regulate individuals who are paid to lobby Congress. For example, Congress may require that lobbyists register, make specific disclosures, and submit reports to Congress. In United States v. Harriss, individuals charged with violating the Federal Regulation of Lobbying Act argued that the registration, reporting, and disclosure requirements of that statute violated their right to petition under the First Amendment.⁴ In upholding the Act, the Court recognized that “[p]resent-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected.”⁵ According to the Court, it is important that elected representatives have the necessary information to be able to “evaluate such pressures.”⁶ Rather than prohibiting lobbying, the Act merely required a “modicum of information” from those hired to influence Congress to make transparent “who is being hired, who is putting up the money, and how much.”⁷ Requiring disclosures about lobbying activities was within Congress’s “power of self-protection,” for the purpose of maintaining “the integrity of a basic governmental process.”⁸

Beyond regulating paid lobbyists, the Court has also held that Congress has no obligation to subsidize the lobbying activities of private entities. In Cammarano v. United States, the Court upheld a regulation that denied a tax deduction for business expenses spent on lobbying.⁹ The Court explained that the taxpayers were not being denied a tax deduction for engaging in constitutionally protected activities, rather, they were “simply being required to pay for those activities entirely out of their own pockets.”¹⁰ Citing Cammarano, the Court subsequently upheld a statutory provision that similarly denied tax benefits for lobbying activities.¹¹ In Regan v. Taxation With Representation of Washington, a nonprofit organization challenged the denial of its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code because a substantial part of its activities were lobbying related.¹² The organization claimed, among other things, that the prohibition on lobbying activities under 501(c)(3) violated the First Amendment.¹³ In rejecting this argument, the Court determined that Congress had not infringed on or regulated any First Amendment activity, rather, it had “merely refused to pay for the lobbying our of public moneys.”¹⁴

Although the Court has allowed Congress to regulate paid lobbyists and to decline to subsidize lobbying activity, it has refused to apply other laws when their application chills the underlying exercise of the right to petition the government. For example, the Noerr-Pennington doctrine—established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.¹⁵ and United Mine Workers v. Pennington¹⁶—provides limited immunity from antitrust liability for those “engaging in conduct . . . aimed at influencing decisionmaking by the government.”¹⁷ Under this line of cases, competitors who work in concert to influences the government do not violate the Sherman Antitrust Act.¹⁸ The Court has reiterated that the Noerr-Pennington doctrine was crafted to “avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances.”¹⁹ The right to petition extends to “all departments of the Government,” and includes access to administrative agencies and courts.²⁰ The Noerr-Pennington doctrine shields efforts to influence public officials “regardless of intent or purpose.”²¹ The Court, however, has recognized a “sham exception” to the doctrine, excluding conduct from immunity that is a “mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor.”²²

Amdt1.7.11.6 Legislative Investigations

As discussed in an earlier essay, Congress possesses an inherent power of investigation in aid of legislation.¹ Nonetheless, the government’s power of investigation is subject to First Amendment restrictions when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. In early cases, the Supreme Court narrowly construed the authority of congressional committees in order to avoid First Amendment infringement.² Later cases introduced a test that balanced the interests of the legislative bodies in inquiring about both protected and unprotected associations and conduct against what were perceived to be limited restraints upon the speech and association rights of witnesses, and upheld committee investigations.³ Later, the Court articulated the balance somewhat differently and required that the investigating agency show “a subordinating interest which is compelling” to justify the inquiry’s restraint on First Amendment rights.⁴