First Amendment:

Congress shall make no law respecting an 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.

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.

Footnotes

1

See Buckley v. Valeo, 424 U.S. 1, 23 (1976).

2

See id.

3

See id. Essentially, quid pro quo corruption captures the notion of “a direct exchange of an official act for money.” See, e.g., McCutcheon v. FEC, 572 U.S. 185, 192 (2014).

4

See id. at 58.

5

See id. at 53 ( “[T]he use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act’s contribution limitations are directed.” )

6

558 U.S. 310 (2010). See also Am. Tradition P’ship. v. Bullock, 567 U.S. 516 (2014) (per curiam) (rejecting arguments attempting to distinguish a state law from the federal law invalidated by Citizens United and reiterating that “political speech does not lose First Amendment protection simply because its source is a corporation.” ).

7

Although the issue before the Court was limited to the application of the prohibition on independent expenditures and electioneering communications to Citizens United, a corporation, the reasoning of the opinion also appears to apply to labor unions. ( “The text and purpose of the First Amendment point in the same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.” ) Citizens United, 558 U.S. at 376.

8

Codified at 52 U.S.C. § 30118(a) (defining an “independent expenditure” as a communication that “expressly advocat[es] the election or defeat of a clearly identified candidate” and is not coordinated with any candidate or party).

9

Codified at 52 U.S.C. §§ 30118(b)(2), 30104(f)(3) (defining an “electioneering communication” to include “any broadcast, cable, or satellite” transmission that “refers to a clearly identified” federal office candidate and is transmitted within sixty days of a general election or thirty days of a primary).

10

52 U.S.C. § 30118(b)(2)(c). The law also permits a corporation to establish a PAC in order to make contributions. As a result of Citizens United, corporations are currently only required to use PAC funds to make contributions, not expenditures.

11

See Citizens United, 558 U.S. at 337.

12

Id. at 351.

13

494 U.S. 652 (1990).

14

Id. at 348. ( “The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them.” )

15

435 U.S. 765 (1978).

16

Citizens United, 558 U.S. at 348 (determining that “the corrosive and distorting” impact of large amounts of money that were acquired with the benefit of the corporate form, but were unrelated to the public’s support for the corporation’s political views, constituted a sufficiently compelling governmental interest to justify such a restriction).

17

See id. at 357.

18

Id. at 354.

19

See id. at 365–66. Referencing Justice Antonin Scalia’s concurrence in WRTL, the Court agreed with the conclusion that “Austin was a significant departure from ancient First Amendment principles,” and held “that stare decisis does not compel the continued acceptance of Austin.” Id. at 319 (quoting WRTL, 551 U.S. at 449 (Scalia, J., concurring in part and concurring in judgment)).

20

551 U.S. 449 (2007). WRTL was decided four years after the Supreme Court upheld the electioneering communication prohibition against a First Amendment facial challenge in McConnell v. FEC, 540 U.S. 93 (2003). While not expressly overruling McConnell, the Court in WRTL limited the prohibition’s application.

21

In Buckley, the Supreme Court provided the genesis for the concept of issue and express advocacy communications. In order to avoid invalidation of a provision of FECA on grounds of unconstitutional vagueness, the Court applied a limiting construction so that the provision applied only to noncandidate “expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office” (that is, express advocacy). In a footnote, the Court explained that this limiting construction would restrict the application of the provision to communications containing express advocacy terms, such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” and “reject.” Buckley, 424 U.S. at 44, n.52.