The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Political expression is at the heart of First Amendment activity and the Supreme Court has
granted it great deference and protection. However, according to the Court in its landmark 1976
decision, Buckley v. Valeo, an absolutely free political marketplace is not required by the First
Amendment—nor is it desirable—because without reasonable regulation, corruption will result.
Most notably, the Buckley Court ruled that the spending of money in campaigns, whether as a
contribution or an expenditure, is a form of “speech” protected by the First Amendment. The
Court upheld some infringements on free speech, however, in order to further the governmental
interests of protecting the electoral process from corruption or the appearance of corruption.
In Buckley, the Supreme Court considered the constitutionality of the Federal Election Campaign
Act of 1971 (FECA), requiring political committees to disclose campaign contributions and
expenditures and limiting, to various degrees, the ability of persons and organizations to make
contributions and expenditures. While First Amendment freedoms and campaign finance
regulation present conflicting means of attempting to preserve the integrity of the political
process, the Court resolved this conflict in favor of the First Amendment interests and subjected
any regulation burdening free speech and free association to “exacting scrutiny.” Under this
standard of review, a court will evaluate whether the government’s interests in regulating are
compelling, examine whether the regulation burdens and outweighs First Amendment liberties,
and inquire as to whether the regulation is narrowly tailored to serve the government’s interests. If
a regulation meets all three criteria, a court will uphold it.
This report first discusses the key holdings enunciated by the Supreme Court in Buckley,
including those upholding reasonable contribution limits, striking down expenditure limits,
upholding disclosure reporting requirements, and upholding the system of voluntary presidential
election expenditure limitations linked with public financing. It then examines the Court’s
extension of Buckley in several subsequent cases, evaluating them in various regulatory contexts:
contribution limits (California Medical Association v. FEC; Citizens Against Rent Control v.
Berkeley; Nixon v. Shrink Missouri Government PAC; FEC v. Beaumont); expenditure limits
(First National Bank of Boston v. Bellotti; FEC v. Massachusetts Citizens for Life; Austin v.
Michigan Chamber of Commerce; FEC v. National Right to Work; Colorado Republican Federal
Campaign Committee (Colorado I) v. FEC; FEC v. Colorado Republican Federal Campaign
Committee (Colorado II); FEC v. Democratic Senatorial Campaign Committee; FEC v. National
Conservative Political Action Committee; Randall v. Sorrell); disclosure requirements (Buckley v.
American Constitutional Law Foundation; Brown v. Socialist Workers ‘74 Campaign Committee;
FEC v. Akins; McIntyre v. Ohio Elections Commission); and political party soft money and
electioneering communication restrictions (McConnell v. FEC; Wisconsin Right to Life, Inc. v.
FEC (WRTL II)).

Introduc tion ..................................................................................................................................... 1
Buckley v. Valeo...............................................................................................................................2
Contribution and Expenditure Limits.................................................................................3
Reporting and Disclosure Requirements.............................................................................4
Voluntary Presidential Election Expenditure Limits Linked With Public Financing..........5
Issue and Express Advocacy Communications...................................................................6
Contribution Limits.........................................................................................................................6
Limiting Individual Contributions to Political Action Committees (California
Medical Association v. FEC)...........................................................................................6
Limiting Contributions in Connection With Ballot Initiatives (Citizens Against
Rent Control v. Berkeley).................................................................................................8
Establishing Contribution Limit Amounts (Nixon v. Shrink Missouri Government
PA C ) ................................................................................................................................. 9
Prohibiting Contributions by Tax-Exempt Corporations (FEC v. Beaumont)..................10
Expenditure Limits.........................................................................................................................11
Prohibiting or Limiting Corporate Expenditures (First National Bank of Boston v.
Bellotti; FEC v. Massachusetts Citizens for Life, Inc.; Austin v. Michigan
Chamber of Commerce).................................................................................................12
Restricting From Whom Labor Unions Can Solicit PAC Funds (FEC v. National
Right to Work) ...............................................................................................................18
Limiting Political Party Expenditures (Colorado Republican Federal Campaign
Committee v. FEC (Colorado I); FEC v. Colorado Republican Federal
Campaign Committee (Colorado II); FEC v. Democratic Senatorial Campaign
Committee) ..................................................................................................................... 19
Limiting Political Action Committee Independent Expenditures (FEC v. National
Conservative Political Action Committee).....................................................................22
Limiting Expenditures by Candidates (Randall v. Sorrell)...............................................23
Disclosure Requirements...............................................................................................................24
Requiring Reporting and Disclosure (Buckley v. American Constitutional Law
Foundation; Brown v. Socialist Workers ‘74 Campaign Committee; FEC v. Akins)...........25
Requiring Attribution Disclosure by Individuals Distributing Leaflets in Issue-Based
Elections (McIntyre v. Ohio Elections Commission)............................................................27
Political Party Soft Money and Electioneering Communication Restrictions...............................29
McConnell v. FEC...................................................................................................................29
Restricting Political Party Soft Money.............................................................................29
Prohibiting Corporate and Labor Union Treasury Fund Financing of
Electioneering Communications....................................................................................31
Requiring Sponsors of Election-Related Advertisements to Self-Identify (“Stand-
By-Your-Ad Provision”)................................................................................................33
Requiring Political Parties to Choose Between Coordinated and Independent
Expenditures After Nominating a Candidate.................................................................34
Prohibiting Campaign Contributions by Minors Age 17 and Under.................................34
Establishing Staggered Increases in Contribution Limits if Opponent Spends
Certain Amount in Personal Funds (“Millionaire Provisions”): Challengers
Held to Lack Standing...................................................................................................35

Supreme Court Deference to Congressional Findings......................................................35
Wisconsin Right to Life, Inc. v. FEC (WRTL II)......................................................................35
Prohibiting Corporate and Labor Union Treasury Fund Financing of
Electioneering Communications....................................................................................37
Conclusion ..................................................................................................................................... 40
Author Contact Information..........................................................................................................40

Campaign finance regulation invokes two conflicting values implicit in the application of the
First Amendment’s guarantee of free political speech and association. On the one hand, political
expression constitutes “core” First Amendment activity, which the Supreme Court grants the
greatest deference and protection in order to “assure [the] unfettered interchange of ideas for the ¹
bringing about of political and social changes desired by the people.” On the other hand, ²
according to the Court in its landmark 1976 decision, Buckley v. Valeo, an absolutely free
“political marketplace” is neither mandated by the First Amendment, nor is it desirable, because
when left uninhibited by reasonable regulation, corruptive pressures undermine the integrity of
political institutions and undercut public confidence in republican governance. In other words,
although the Court reveres the freedoms of speech and association, it has upheld infringements on
these freedoms in order to further the governmental interests of protecting the electoral process
from corruption or the appearance of corruption.
Case law subsequent to Buckley further illustrates that neither the freedom of speech and
association nor the government’s regulatory powers are absolute. Accordingly, Supreme Court
campaign finance holdings embody the doctrinal tension between striking a reasonable balance
between protecting the liberty interests in free speech and association, on the one hand, and
upholding campaign finance regulation enacted with the intent to encourage political debate while
protecting the election process from corruption, on the other. The Court appears to uphold First
Amendment infringements by campaign finance regulation only insofar as the regulation is
deemed necessary to preserve the very system of representative democracy that unregulated First ³
Amendment freedoms purport to insure.
In Buckley, the Court reviewed the constitutionality of the Federal Election Campaign Act of ⁴

1971 (FECA), requiring political committees to disclose political contributions and expenditures,

and limited to various degrees, the ability of natural persons and organizations to make political
contributions and expenditures. While First Amendment freedoms and campaign finance
regulation present conflicting means of preserving the integrity of the democratic political
process, the Court resolved this conflict in favor of First Amendment interests and subjected any
regulation burdening free speech and free association activities to “exacting scrutiny.” Under this
standard of review, the Court evaluates whether the state’s interests in regulation are compelling,
examines whether the regulation burdens and outweighs First Amendment liberties, and inquires
whether the regulation is narrowly tailored to further its interest. If a regulation meets all three
criteria, the Court will uphold it.

¹^R^o^th^v^.^Uⁿ^ite^d^Sta^t^e^s^,³⁵^{4 U}^.^S.⁴^76,⁴⁸^{4 (}¹⁹⁵⁷⁾^.
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²⁵⁴^{, 2}⁶⁶⁽¹⁹⁶⁴⁾⁾^.
⁴^{2 U}^.^S^.^C^.^{§ 4}³¹^et^seq^.

This report discusses the critical holdings and rationales enunciated by the Buckley Court and
then examines the Court’s extension of Buckley in subsequent cases. Buckley’s extensions are
evaluated in various regulatory contexts: contribution limits, expenditure limits, disclosure
requirements, and political party spending and electioneering communication restrictions. When
discussing the Court’s rationale in each case, facts relevant to a regulator are highlighted: the
object of regulation (e.g., a corporation, labor union, or natural person); the asserted liberty
interest (e.g., freedom of speech or association); the asserted regulatory interest (e.g., deterring
corruption); the triggers of the regulatory interests (e.g., political advantages gained by assuming
the corporate form); the means by which the regulator obtained those interests (e.g., limiting
campaign contributions); the extent to which the regulation burdened First Amendment liberties
(e.g., completely prohibiting expenditures above a certain dollar amount); and the scope of
regulation (e.g., whether the regulation was “narrowly tailored” to serve the compelling
governmental interests).

In Buckley v. Valeo, the Supreme Court considered the constitutionality of the Federal Election ⁵
Campaign Act of 1971 (FECA), as amended in 1974, and the Presidential Election Campaign ⁶
Fund Act. The Court upheld the constitutionality of certain statutory provisions, including (1) ⁷
contribution limitations to candidates for federal office, (2) disclosure and record-keeping ⁸⁹
provisions, and (3) the system of public financing of presidential elections. The Court found
other provisions unconstitutional, including (1) expenditures limitations on candidates and their ¹⁰¹¹
political committees, (2) the $1,000 limitation on independent expenditures, (3) expenditure ¹²
limitations by candidates from their personal funds, and (4) the method of appointing members ¹³
to the Federal Election Commission. In general, the Court struck down expenditure limitations,

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^t^h^ei^{r “asso}^ci^atⁱ^oⁿ^a^l^”^val^u^e.
⁶^{26 U}^.^S.C^.^§⁹⁰⁰¹^et^seq^.
⁷^{2 U}^.^S^.^C^.^{§ 4}^41a^.
⁸^{2 U}^.^S^.^C^.^{§ 4}³⁴^.
⁹^Se^e^Su^btitle^H^of^the^Inte^rⁿ^a^l^Re^v^e^nue^Code^of¹⁹⁵^{4, c}^odifⁱ^e^d^a^t²⁶^U.S.C^.^§⁹⁰⁰¹^et^seq^.
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^f^unding^.
¹¹^For^m^e^r^l^y^{18 U}^.^S.C^.^§⁶⁰^8e^.
¹²^For^m^e^r^l^y^{18 U}^.^S.C^.^§⁶⁰^8a^.
¹³^Fo^rm^erl^y²^U.S.C.^§⁴³⁷^c^(a)(1⁾⁽^A^-^C).

but upheld reasonable contribution limitations, disclosure requirements,¹⁴ and voluntary spending
limits linked with public financing provisions.
In considering the constitutionality of these statutes, the Buckley Court applied the standard of
review known as “exacting scrutiny,” a standard applied by a court when presented with
regulations that burden core First Amendment activity. Exacting scrutiny requires a regulation to
be struck down unless it is narrowly tailored to serve a compelling governmental interest.
When analyzing First Amendment claims, a court will generally first determine whether the
challenged government action implicates “speech” or “associational activity” guaranteed by the
First Amendment. Most notably, the Buckley Court held that the spending of money, whether in
the form of contributions or expenditures, is a form of “speech” protected by the First
Amendment. A number of principles contributed to the Court’s analogy between money and
speech. First, the Court found that candidates need to amass sufficient wealth to amplify and ¹⁵
effectively disseminate their message to the electorate. Second, restricting political contributions
and expenditures, the Court held, “necessarily reduces the quantity of expression by restricting
the number of issues discussed, the depth of the exploration, and the size of the audience reached.
This is because virtually every means of communicating ideas in today’s mass society requires ¹⁶
the expenditure of money.” The Court then observed that a major purpose of the First
Amendment was to increase the quantity of public expression of political ideas, as free and open
debate is “integral to the operation of the system of government established by our ¹⁷
Constitution.” From these general principles, the Court concluded that contributions and
expenditures facilitated this interchange of ideas and could not be regulated as “mere” conduct ¹⁸
unrelated to the underlying communicative act of making a contribution or expenditure.
However, according to the Court, contributions and expenditures invoke different degrees of First ¹⁹
Amendment protection. Recognizing contribution limitations as one of FECA’s “primary
weapons against the reality or appearance of improper influence” on candidates by contributors,
the Court found that these limits “serve the basic governmental interest in safeguarding the ²⁰
integrity of the electoral process.” Thus, the Court concluded that “the actuality and appearance
of corruption resulting from large financial contributions” was a sufficient compelling interest to
warrant infringements on First Amendment liberties “to the extent that large contributions are ²¹
given to secure a quid pro quo from [a candidate.]” Short of a showing of actual corruption, the

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Court found that the appearance of corruption from large campaign contributions also justified ²²
these limitations.
Reasonable contribution limits, the Court noted, leave “people free to engage in independent
political expression, to associate [by] volunteering their services, and to assist [candidates by ²³
making] limited, but nonetheless substantial [contributions].” Further, a reasonable contribution
limitation does “not undermine to any material degree the potential for robust and effective
discussion of candidates and campaign issues by individual citizens, associations, the institutional ²⁴
press, candidates, and political parties.” Finally, the Court found that the contribution limits of
FECA were narrowly tailored insofar as the act “focuses precisely on the problem of large ²⁵
campaign contributions.”
On the other hand, the Court determined that FECA’s expenditure limits on individuals, political
action committees (PACs), and candidates imposed “direct and substantial restraints on the ²⁶
quantity of political speech” and were not justified by an overriding governmental interest. The
Court rejected the government’s asserted interest in equalizing the relative resources of candidates
and in reducing the overall costs of campaigns. Restrictions on expenditures, the Court held,
constitute a substantial restraint on the enjoyment of First Amendment freedoms. As opposed to
reasonable limits on contributions, which merely limit the expression of a person’s “support” of a
candidate, the “primary effect of [limitations on expenditures] is to restrict the quantity of ²⁷
campaign speech by individuals, groups and candidates.” “A restriction on the amount of money
a person or group can spend on political communication during a campaign necessarily reduces
the quantity of expression by restricting the number of issues discussed, the depth of their ²⁸
exploration, and the size of the audience reached,” the Court noted.
The Court also found that the government’s interests in stemming corruption by limiting
expenditures were not compelling enough to override the First Amendment’s protection of free
and open debate because unlike contributions, the risk of quid pro quo corruption was not present, ²⁹
as the flow of money does not directly benefit a candidate’s campaign fund. Upon a similar
premise, the Court rejected the government’s interest in limiting a wealthy candidate’s ability to
draw upon personal wealth to finance his or her campaign, and struck down the personal ³⁰
expenditure limitation.
In Buckley, the Supreme Court generally upheld FECA’s disclosure and reporting requirements,
but noted that they might be found unconstitutional as applied to certain groups. While compelled

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²⁹^Id^.^a^t⁵⁵^.
³⁰^Id^.^a^t^51-⁵⁴^{. T}^h^e^Cou^r^{t d}ⁱ^sting^u^is^he^{d t}^h^{is h}^o^ld^ing^f^r^om^its^v^a^lida^{tion of}^Su^btitle^H,^w^h^ic^{h pr}^ov^ide^s^f^o^{r the}^p^u^b^lic
^fⁱⁿ^aⁿ^cⁱⁿ^{g o}^f^p^r^esi^d^en^tⁱ^a^l^el^ectⁱ^oⁿ^s^.^Lⁱ^mⁱ^t^a^tⁱ^oⁿ^s^on^exp^e^ndⁱ^t^u^res^b^y^p^r^esi^d^en^tⁱ^a^l^candⁱ^d^a^t^e^{s recei}^viⁿ^g^p^u^b^lⁱ^c^f^unds^w^e^r^e
^dⁱ^stⁱⁿ^guⁱ^s^h^a^b^l^e^b^ecau^{se t}^h^{e accep}^t^aⁿ^{ce o}^f^publ^ic^f^unds^w^a^s^v^o^lunta^r^y^.

disclosure, in itself, raises substantial freedom of private association and belief issues, the Court
held that these interests were adequately balanced by the state’s regulatory interests. The state
asserted three compelling interests in disclosure: (1) providing the electorate with information
regarding the distribution of capital between candidates and issues in a campaign, thereby
providing voters with additional evidence upon which to base their vote; (2) deterring actual and
perceived corruption by exposing the source of large expenditures; and (3) providing regulatory
agencies with information essential to the election law enforcement. However, when disclosure
requirements expose members or supporters of historically suspect political organizations to ³¹
physical or economic reprisal, then disclosure may fail constitutional scrutiny as applied to a ³²
particular organization.
The Supreme Court in Buckley upheld the constitutionality of the system of voluntary presidential
election expenditure limitations linked with public financing, through a voluntary income tax ³³
checkoff. The Court found no First Amendment violation in disallowing taxpayers to earmark
their $1.00 “checkoff” for a candidate or party of the taxpayer’s choice. As the checkoff
constituted an appropriation by Congress, it did not require outright taxpayer approval, as “every
appropriation made by Congress uses public money in a manner to which some taxpayers ³⁴
object.” The Court also rejected a number of Fifth Amendment due process challenges,
including a challenge contending that the public financing provisions discriminated against minor
and new party candidates by favoring major parties through the full public funding of their
conventions and general election campaigns, and by discriminating against minor and new parties ³⁵
who received only partial public funding under the act. The Court held that “[a]ny risk of harm
to minority interests ... cannot overcome the force of the governmental interests against the use of
public money to foster frivolous candidacies, create a system of splintered parties, and encourage ³⁶
unrestrained factionalism.”

³¹^Se^e^Natioⁿ^a^{l A}^sso^ciatioⁿ^f^o^{r t}^h^e^A^d^van^c^e^m^en^{t o}^f^Co^lo^red^P^e^o^p^l^e^(NAACP⁾^v.^A^l^ab^ama,³⁵⁷^U.^S^.⁴⁴⁹⁽¹⁹⁵⁸⁾^.^T^h^e
^r^e^a^s^oningⁱⁿ^B^u^ckl^ey^a^nd^Br^owⁿ^v^.^Socⁱ^a^lis^{t W}^o^r^k^e^r^s^‘⁷^{4 C}^a^m^pai^gn^C^o^m^m^.^,⁴⁵^{9 U}^.^S.⁸⁷⁽¹⁹⁸²⁾^,^dis^c^us^s^e^d^infr^a,^ha^s
^his^t^or^ic^a^l^r^ootsⁱⁿ^NA^{ACP v}^.^A^l^a^b^a^ma^{. I}ⁿ^NAAC^P^{, t}^h^e^C^o^ur^{t a}^d^dr^e^s^s^e^{d w}^h^e^t^he^r^a^non-^pr^of^it^or^g^a^niz^a^tion’^s
^a^s^s^o^cⁱ^a^tiona^{l rig}^h^ts^w^e^re^a^b^ridg^e^d^by^a^s^t^a^t^e^s^t^a^t^ute^c^o^m^p^e^lling^dis^c^los^u^re^of^its^m^e^m^b^e^r^s^a^{nd a}^g^eⁿ^ts^w^{ithout re}^g^a^{rd to}
^theⁱ^{r p}^o^siti^{on a}^{nd re}^sp^onsi^b^ilit^ie^{s in t}^h^e^a^ssocⁱ^a^tion.^T^h^e^or^g^a^niz^a^tⁱ^on^didⁿ^o^{t c}^o^m^p^ly^w^{ith the}^disc^l^o^sure^re^quire^m^e^nt.
^Fⁱⁿ^dⁱⁿ^{g f}^o^{r t}^h^{e NA}^A^C^P^,^t^h^{e C}^o^u^r^t^h^e^l^d^t^h^at^t^h^{e f}^r^eed^o^m^o^f^as^so^ci^atⁱ^oⁿⁱ^s^an^“iⁿ^s^ep^arabl^e^asp^ect^{” o}^f^t^h^{e f}^r^eed^o^m^s
^gu^aran^t^eed^b^y^t^h^{e F}ⁱ^rst^and^F^o^u^r^t^een^t^h^Am^en^d^m^en^t^s^,^{see i}^d^.^at⁴^60-6¹^;^t^h^at^co^m^p^el^l^e^d^dⁱ^scl^o^su^{re o}^f^t^h^e^asso^ci^atⁱ^oⁿ^’^s
^me^m^b^ershⁱ^p^w^o^u^l^d^ef^f^e^ctⁱ^v^el^y^re^s^t^raiⁿ^t^h^at^f^r^eed^o^m^,^se^{e id}^.^at⁴⁶¹^-⁴⁶³^;^and^t^h^at^,^un^d^e^{r st}^rⁱ^ct^scru^tⁱⁿ^y^,^t^h^{e st}^at^e’s
^inte^re^{sts in}^disc^losu^re^w^e^re^insuf^f^ic^ie^{nt to}^ov^e^r^c^o^m^e^the^a^ssocⁱ^a^{tion’s de}^priv^a^tion^of^rig^h^t,^{see i}^d^.^a^t⁴^63-³⁶^{6. T}^h^e^C^o^ur^t
^st^ressed^t^h^at^t^h^{e “vi}^t^a^l^rel^a^tⁱ^oⁿ^s^hⁱ^p^b^e^t^w^een^f^r^eed^o^m^t^o^asso^ci^at^{e an}^d^p^rⁱ^v^ac^yⁱⁿ^oⁿ^e^{’s asso}^ci^atⁱ^oⁿ^s^”^w^a^{s u}ⁿ^d^u^l^y
^bur^de^ne^d^by^the^dis^c^los^u^r^e^r^e^q^u^ir^em^eⁿ^{t, a}^s^pa^s^t^r^e^v^e^la^{tion of}^m^e^m^b^e^r^ship^ideⁿ^t^ity^re^sulte^dⁱⁿ^econ^o^mⁱ^{c rep}^rⁱ^s^al^,^l^o^{ss o}^f
^e^m^ploy^m^e^{nt, thre}^a^t^of^phy^sic^a^l^c^o^e^r^cⁱ^{on, a}ⁿ^d^othe^{r m}^a^nif^e^sta^{tions of}^public^hostili^ty^.^Id^.^at⁴⁶^2.
³²^S^{ee a}^l^so^Mc^Iⁿ^ty^r^e^v^.^O^h^{io Ele}^c^tⁱ^ons^C^o^m^m^is^sⁱ^{on, 51}^{4 U}^.^S^.³³⁴⁽¹⁹⁹⁵⁾⁽^f^ur^the^r^de^fⁱⁿⁱ^ng^the^s^c^ope^o^f^B^u^ckl^ey^’s
^dis^c^los^u^r^e^j^u^rⁱ^s^p^r^ude^nc^e^t^o^pr^os^c^r^ibe^dis^c^los^u^r^e^r^e^qu^ir^e^m^eⁿ^ts^tha^t^inf^r^ing^e^{on t}^h^e^rⁱ^g^h^t^of^aⁿ^indⁱ^vⁱ^du^a^l^to^pu^blis^{h a}^nd
^dis^t^rib^u^te^le^a^f^le^ts^a^nony^m^ous^l^y^{, e}^x^pre^s^sⁱ^ng^a^politic^a^l^poi^nt^of^vⁱ^ew^{, in a}^re^f^e^re^nda^or^othe^r^is^s^u^e^-^ba^s^e^{d e}^l^e^c^tion),
^dⁱ^scu^ssedⁱⁿ^fra^.
³³^{26 U}^.^S.C^.^§⁹⁰⁰¹^et^seq^.
³⁴^Se^e^Buc^k^le^y^,⁴²⁴^U^.^S.^a^t⁸⁵^.
³⁵^S^{ee i}^d^.^a^t⁸⁶^.
³⁶^Id^.^a^t¹⁰^1.

In Buckley, the Supreme Court provided the genesis for the concept of issue and express
advocacy communications. In order to pass constitutional muster and not be struck down as
unconstitutionally vague, the Court ruled that FECA can only apply to non-candidate
“expenditures for communications that in express terms advocate the election or defeat of a
clearly identified candidate for federal office,” i.e., expenditures for express advocacy ³⁷
communications. In a footnote to the Buckley opinion, the Court further defines “express words
of advocacy of election or defeat” as, “vote for,” “elect,” “support,” “cast your ballot for,” “Smith ³⁸
for Congress,” “vote against,” “defeat,” and “reject.” Communications not meeting the express
advocacy definition are commonly referred to as issue advocacy communications.
In its rationale for establishing such a bright line distinction between issue and express advocacy,
the Court noted that the discussion of issues and candidates as well as the advocacy of election or
defeat of candidates “may often dissolve in practical application.” That is, candidates—especially
incumbents—are intimately tied to public issues involving legislative proposals and governmental ³⁹
actions, according to the Court.

This section analyzes several Supreme Court opinions decided subsequent to Buckley in which
the Court evaluated the constitutionality of contribution limitations. Specifically, in California ⁴⁰
Medical Association v. Federal Election Commission (FEC), the Court upheld limits on
contributions from an unincorporated association to its affiliated, non-party, multicandidate ⁴¹
political action committee (PAC). In Citizens Against Rent Control v. Berkeley, the Court
reviewed a statute severely limiting the ability of an unincorporated association to raise funds
through contributions in connection with its activities in a ballot initiative, holding that the limit
unduly burdened the association’s free speech and association rights. In Nixon v. Shrink Missouri ⁴²
Government PAC, the Court evaluated campaign contribution limit amounts and considered,
among other things, whether Buckley’s approved contribution limits established a minimum for
state limits, with or without adjustment for inflation, and concluded that Buckley did not. Finally,
in FEC v. Beaumont, the Court reaffirmed the prohibition on all corporations—including tax-
exempt corporations—making direct treasury contributions in connection with federal elections.
California Medical Association (CMA) v. Federal Election Commission (FEC)⁴³ considered
whether the rationale behind the Buckley Court affording such high protection to campaign

³⁷^Id^.^a^t⁴⁴^.
³⁸^Id^.,^n.⁵²^.
³⁹^Buc^k^le^y^,⁴²⁴^U^.^{S. a}^t⁴²^.^S^{ee a}^l^so^FEC^v^.^Ma^s^s^a^c^hus^e^tts^C^itiz^eⁿ^s^f^o^r^Lⁱ^f^e^{, I}ⁿ^c^{., 47}^{9 U}^.^S^.²³⁸⁽¹⁹⁸⁶⁾^{, dis}^c^us^s^e^dⁱⁿ^f^r^a^.
⁴⁰⁴⁵^{3 U}^.^S^.¹⁸²⁽¹⁹⁸¹⁾^.
⁴¹⁴⁵^{4 U}^.^S^.²⁹⁰⁽¹⁹⁸¹⁾^.
⁴²⁵²^{8 U}^.^S^.³⁷⁷⁽²⁰⁰⁰⁾^.
⁴³⁴⁵^{3 U}^.^S^.¹⁸²⁽¹⁹⁸¹⁾^.

contributions extended to political action committee (PAC) contributions as well. This case
involved 2 U.S.C. § 441a(a)(1)©) of FECA, which limits individual contributions to PACs to ⁴⁴
$5,000 per year. An unincorporated association of medical professionals, (“the doctors”) and the
association’s affiliated political action committee (“the PAC”) challenged FECA’s contribution
limits, alleging, inter alia, violation of their free speech and association rights. The doctors argued
that § 441a(a)(1)©) was unconstitutional because it inhibited their use of the PAC as a proxy for ⁴⁵
their political expression. Moreover, the doctors contended that the contribution limit did not
serve a compelling state interest because the risk of corruption is not present where money does ⁴⁶
not flow directly into a candidate’s coffers.
Unpersuaded, the Supreme Court upheld FECA’s contribution limits. In evaluating the doctor’s
free speech interest, the Court held that the doctors’ “speech by proxy” theory was not entitled to
full First Amendment protection because Buckley reserved this protection for independent and ⁴⁷
“direct” political speech. The Court found that the PAC was not simply the doctors’ “political
mouthpiece,” but was a separate legal entity that received funding “from multiple sources” and ⁴⁸
engaged in its own, independent political advocacy. In rejecting the doctors’ “speech by proxy”
theory, the Court construed the doctors’ relationship with the PAC as providing “support” through
campaign contributions, which does not warrant the same level of First Amendment protection as ⁴⁹
independent political speech.
In evaluating the state’s interests, the CMA Court rejected the PAC and the doctors’ argument that
the risk of corruption is not present when contributions are made to a PAC. The Court interpreted
this argument as implying that Congress cannot limit individuals and unincorporated associations
from making contributions to multicandidate political committees. This rationale, the Court held,
undercuts FECA’s statutory scheme by allowing individuals to circumvent FECA’s limits on ⁵⁰⁵¹
individual contributions and aggregate contributions by making contributions to a PAC.
Hence, the doctor’s rationale would erode Congress’ legitimate interest in protecting the integrity ⁵²
of the political process. Under Buckley, the Court held that the state’s regulatory interests
outweighed the doctors’ relatively weak free speech interest.

⁴⁴^S^{ee i}^d^.^a^t¹^84.^A^re^la^te^{d prov}^isio^{n, 2}^U.S.C^.^§⁴^41a^(f^{), m}^a^k^e^{s it un}^la^wf^{ul f}^o^{r a}^politic^a^l^c^o^m^m^itte^e^{to k}^now^ing^l^y
^accep^t^coⁿ^t^ri^bu^tⁱ^oⁿ^s^exceedⁱⁿ^{g t}^hⁱ^s^lⁱ^mⁱ^t^.
⁴⁵^S^{ee i}^d^.^a^t¹^95.
⁴⁶^S^{ee i}^d^.
⁴⁷^S^{ee i}^d^.^a^t¹^96.
⁴⁸^Id^.
⁴⁹^S^{ee i}^d^.^a^t¹^97.
⁵⁰^CM^A^{, 45}^{3 U}^.^S.¹⁹^{8 (}^“^Sinc^e^m^u^lt^ic^a^ndida^te^poli^tic^a^l^c^o^m^m^itte^e^s^m^a^y^c^ontrⁱ^bu^te^u^p^t^o^$⁵^,⁰⁰⁰^pe^r^y^e^a^r^{to a}ⁿ^y
^c^a^ndida^te^,^{2 U}^.^S^.^C^.^§⁴^41a⁽^a⁾⁽²⁾⁽^A⁾^{, a}ⁿ^indivⁱ^d^u^a^l^or^a^s^s^o^cⁱ^a^tion^s^e^e^k^ing^{to e}^v^a^d^e^the^$1,⁰⁰^{0 l}ⁱ^m^{it on in}^divⁱ^d^u^a^l
^c^ontri^buti^{ons c}^oul^d^[^c^haⁿⁿ^e^l^]^f^uⁿ^d^{s thr}^oug^{h a}^m^u^ltic^aⁿ^dⁱ^da^te^p^o^litⁱ^c^a^l^c^o^m^m^itte^e^”⁾^.
⁵¹^Id^.^a^t¹⁹^8-¹⁹⁹⁽^“^Iⁿ^dⁱ^vⁱ^dua^ls^c^o^ul^{d e}^v^a^d^e^the^$^25,⁰⁰^{0 l}ⁱ^m^{it on a}^g^g^r^e^g^a^t^e^a^nnua^{l c}^ontrⁱ^bu^tio^ns^to^c^aⁿ^dida^te^s^if^the^y
^w^e^r^e^a^llow^e^{d to g}ⁱ^v^e^unlim^ite^{d sum}^s^{to m}^u^ltic^a^ndida^te^polⁱ^tⁱ^cal^commi^t^t^ees,^siⁿ^{ce su}^ch^co^mmⁱ^t^t^ees^{are n}^o^t^lⁱ^mⁱ^t^e^dⁱⁿ
^the^a^g^g^r^e^g^a^t^e^am^{ount the}^y^m^a^y^contrⁱ^bute^{in a}ⁿ^y^gⁱ^v^eⁿ^y^e^a^r^”⁾^.
⁵²^S^{ee i}^d^.^a^t¹^99.

In Citizens Against Rent Control v. Berkeley,⁵³ the Supreme Court addressed whether a city
ordinance, imposing a $250 limit on contributions made to committees formed to support or
oppose ballot measures, violated a PAC’s liberty interest in free speech and free association under ⁵⁴
the Fourteenth Amendment. Citizens Against Rent Control (“the group”), an unincorporated
association formed to oppose a Berkeley ballot initiative imposing rent control on various
properties, challenged the ordinance’s constitutionality. The Court found for the group, on
freedom of association and freedom of speech grounds.
The Court held that while the limit placed no restraint on an individual acting alone, it clearly
restrained the right of association, as the ordinance burdened individuals who wished to band ⁵⁵
together to voice their collective viewpoint on ballot measures. The Court applied “exacting
scrutiny” to the ordinance, weighing the city’s regulatory interests against the group’s ⁵⁶
associational rights. While the Court noted that Buckley permitted contribution limits to
candidates in order to prevent corruption, contributions tied to ballot measures pose “no risk of ⁵⁷
corruption.” Moreover, as the ordinance required contributors to disclose their identity, the
regulation posed “no risk” that voters would be confused by who supported the speech of the ⁵⁸
association. Under “exacting scrutiny,” therefore, the $250 contribution limitation was held
unconstitutional.
Extending its holding, the Court found that the contribution limitations unduly burdened the free ⁵⁹
speech rights of the group and of individuals who wish to express themselves through the group.
Applying “exacting scrutiny,” the Court found no significant public interest in restricting debate
and discussion of ballot measures, and held that the ordinance’s disclosure requirement ⁶⁰
adequately protected the sanctity of the political system.

⁵³⁴⁵^{4 U}^.^S^.²⁹⁰⁽¹⁹⁸¹⁾^.
⁵⁴^T^h^e^Four^te^eⁿ^t^h^A^m^e^ndm^eⁿ^{t pr}^o^h^ibits^s^t^a^t^e^g^o^v^e^rⁿ^m^e^nts^f^r^o^m^de^pr^iv^ing^“^aⁿ^y^pe^r^s^on^of^lif^e^,^libe^r^ty^,^or^pr^o^p^e^r^ty^,
^w^ithout^due^pr^oc^e^s^s^of^la^w^.^”^U^.^S.^C^ONS^T^{., A}^m^{dt. 14 §}^{1. B}^y^vⁱ^r^t^ue^of^the^inc^l^usⁱ^oⁿ^of^the^te^r^m^“^libe^r^ty^,”^the^Fir^s^t
^Amen^d^m^en^t^h^a^{s b}^eco^m^e^ap^p^lⁱ^cabl^e^t^o^t^h^{e st}^at^es.^Se^e^W^h^itne^y^v^.^C^a^lif^or^nia^,²^{74 U}^.^S.³⁵^7,³⁷^{3 (}¹⁹²⁷⁾⁽^B^r^a^nde^is^,
^c^onc^ur^rⁱ^ng⁾⁽^“^[^A^]^l^l^f^unda^m^e^nta^l^rⁱ^g^h^ts^c^o^m^p^rⁱ^s^e^{d w}^{ithin the}^te^r^m^li^be^r^t^y^a^r^e^pr^ote^c^t^e^d^by^the^Fe^de^r^a^{l C}^ons^ti^tuti^on^f^r^om
ⁱⁿ^vasi^oⁿ^b^y^t^h^{e S}^t^at^es.^T^h^{e ri}^gh^t^o^f^f^r^e^e^sp^eech^[^aⁿ^d^asse^m^b^l^y^]^.^.^.^{are f}^unda^m^e^nta^l^rⁱ^g^h^ts^.”⁾^A^lthoug^{h the}^p^l^aⁱⁿ
^l^aⁿ^g^u^a^{ge o}^f^t^h^{e F}ⁱ^rst^Am^en^d^m^en^t^p^r^o^s^cri^b^{es t}^h^{e Con}^g^{ress f}^r^o^m^ab^ri^d^gⁱⁿ^{g t}^h^{e f}^r^eed^o^m^o^f^sp^eech^an^d^asso^ci^atⁱ^oⁿ^,
^Ju^stⁱ^{ce Bran}^d^eⁱ^s^{’ read}ⁱⁿ^g^o^f^t^h^{e F}^o^u^r^t^een^t^h^Am^en^d^m^en^t^h^a^{s b}^eco^{me a p}^a^rt^o^f^t^h^{e S}^u^p^r^em^{e Co}^u^r^t^’^{s i}ⁿ^co^rp^o^r^atⁱ^oⁿ
^jurⁱ^s^p^r^ude^nc^e^.^S^{ee a}^l^so^Fir^s^{t N}^a^ti^ona^{l B}^a^nk^of^B^o^s^t^{on v}^.^B^e^ll^otti^{, 4}^{35 U}^.^S.⁷⁶^5,⁷⁷^9-⁷^{80 (}¹⁹⁷⁸⁾^{, d}ⁱ^s^c^us^s^e^d^infr^a^.
⁵⁵^S^{ee i}^d^.^a^t²^96.^“^T^he^f^r^ee^dom^of^as^s^o^cⁱ^a^{tion ‘}ⁱ^s^dil^u^te^d^if^{it doe}^s^not^inc^l^u^d^e^the^rⁱ^g^h^{t t}^o^p^ool^m^one^y^t^h^r^o^ug^h
^c^ontrⁱ^buti^ons^,^f^o^r^f^unds^a^r^e^of^teⁿ^e^s^s^e^ntia^{l if}^a^d^v^o^c^a^c^y^is^{to be}^tr^uly^or^optim^a^lly^ef^f^e^c^tive^.^’^”^Id^.⁽^q^uot^ing^B^u^c^k^ley^,⁴²⁴
^U^.^{S. a}^t⁶⁵^-6^6).
⁵⁶^S^{ee i}^d^.^a^t²^98-¹⁹^{9 (}^f^indi^ng^tha^t^“^[^r^]^e^g^ula^tioⁿ^of^Fir^s^{t A}^m^e^ndm^eⁿ^{t R}ⁱ^g^h^ts^is^a^l^w^a^y^s^s^ubje^c^t^{to e}^x^a^c^ting^s^c^r^u^tiny^”⁾^.
⁵⁷^Id^{. a}^t²⁹^{8 (}^notiⁿ^g^tha^t^“^[^r^]^e^f^e^r^e^nda^a^r^e^he^{ld o}ⁿ^is^s^u^e^s^,^not^c^a^ndi^da^te^s^f^o^r^pub^lic^of^fⁱ^c^e^.^T^h^e^rⁱ^s^k^of^c^o^r^r^upti^oⁿ
^pe^rc^eⁱ^v^e^{d in c}^a^s^e^s^inv^o^lv^ing^c^aⁿ^dⁱ^da^te^e^l^e^c^{tions sim}^p^ly^{is not}^pre^s^eⁿ^{t i}ⁿ^a^p^o^p^u^la^{r v}^o^te^{on a}^pu^blic^is^sue^”^(quo^ting^Fi^rst
^Na^tiona^{l Ba}^nk^of^Bost^{on v}^.^Be^ll^o^{tti, 4}³⁵^U.S.⁷^{65 (}¹⁹⁷⁸⁾⁾^.
⁵⁸^S^{ee i}^d^.
⁵⁹^Id^.^a^t²⁹^{8 (}^f^indi^ng^tha^t^“^[^c^]^oⁿ^trⁱ^b^utio^ns^by^indivⁱ^dua^ls^t^o^s^u^pp^or^{t c}^onc^e^r^te^{d a}^c^tioⁿ^by^a^c^o^m^m^itte^e^adv^o^c^a^ting^a
^pos^iti^on^oⁿ^a^ba^ll^{ot m}^e^a^s^ure^is^be^y^{ond que}^s^tⁱ^{on a}^v^e^ry^sⁱ^gⁿⁱ^f^ic^aⁿ^{t form}^of^politic^a^l^e^x^pre^s^sⁱ^on”^).
⁶⁰^S^{ee i}^d^.^a^t²^99-³⁰^0.

In Nixon v. Shrink Missouri Government PAC,⁶¹ the Supreme Court considered, among other
things, whether Buckley’s approved limitations on campaign contributions established a minimum
for state contribution limits today, with or without adjustment for inflation. Asserting free speech
and association rights, a political action committee and a candidate challenged the facial validity ⁶²
of a Missouri regulation limiting contributions to amounts ranging from $275 to $1,075.
Missouri asserted interests similar to those articulated in Buckley, namely, that contribution limits
serve the governmental interest in avoiding the real and perceived corruption of the electoral ⁶³
process. The Eighth Circuit found these interests unpersuasive and required Missouri to show
that “there were genuine problems that resulted from the contributions in amounts greater than the ⁶⁴
limits in place . . .” The Court granted certiorari to review the agreement between the Eighth ⁶⁵
Circuit’s evidentiary requirement and Buckley.
Reversing, the Court found Missouri’s regulatory interests compelling and negated the
proposition that the $1,000 limit upheld by Buckley is a constitutional floor to state contribution ⁶⁶⁶⁷
limitations. Though the Court reviewed the case under an exacting scrutiny standard, it upheld ⁶⁸
the regulation since it “was ‘closely drawn’ to match a ‘sufficiently important interest.’”
Notwithstanding the “narrow tailoring” requirement, the Court held that the limitation’s dollar ⁶⁹
amount “need not be ‘fine tuned.’” As the risk of corruption is greater when money flows
directly into a campaign’s coffers, the Court found that contribution limits are more likely to
withstand constitutional scrutiny. In these cases, a contributor’s free speech interest is less
compelling since “contributions” merely index for candidate “support,” not the contributor’s ⁷⁰
“independent” political point of view. Addressing the lower court’s evidentiary requirement, the
Court noted that “[t]he quantum of empirical evidence needed to satisfy heightened judicial
scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the ⁷¹
justifications raised.” However, it found that Missouri cleared the standard implied by Buckley ⁷²
and its progeny. Given the relative weakness of the asserted free speech and associational
interests, as compared to the state’s weighty regulatory interest, the Court upheld the Missouri
state campaign contribution limits.

⁶¹⁵²^{8 U}^.^S^.³⁷⁷⁽²⁰⁰⁰⁾^.
⁶²^Id^.^a^t⁹⁰^{1. T}^h^e^a^m^ounts^w^e^r^e^s^t^a^t^utor^y^ba^s^e^line^s^to^be^a^d^j^u^s^t^e^d^e^a^c^h^y^e^a^r^{in lig}^ht^of^the^c^u^m^u^la^tiv^e^c^ons^um^e^r^pr^ic^e
^inde^x^.^S^{ee i}^d^.
⁶³^Id^.^a^t⁹⁰^2.
⁶⁴^Id.,^q^uotiⁿ^g¹^{61 F.3}^d⁵²^{0, 52}^1-⁵^22.
⁶⁵^S^{ee i}^d^.^a^t⁹^{03 (}^aⁿⁿ^ou^nc^ing^tha^t^[^t^]^h^e^[^F^ir^s^t^A^m^e^ndm^eⁿ^t]^ha^s^its^f^u^ll^e^s^{t a}^{nd m}^o^s^t^ur^g^e^{nt a}^p^plic^a^tio^{n pr}^e^cⁱ^s^e^l^y^{to the}
^c^ond^uc^{t of}^c^a^m^pa^ig^ns^f^o^r^polit^ic^a^l^of^fⁱ^c^e^.^”^Id^.
⁶⁶^Id^{. a}^t⁹⁰^9.
⁶⁷^Id^.^a^t⁹⁰^3.
⁶⁸^Id^{. a}^t⁹⁰^4,^qu^otiⁿ^g^B^u^c^k^le^y^,⁴²⁴^U^.^{S. a}^t²⁵^.
⁶⁹^Id^{. a}^t⁹⁰^4,^qu^otiⁿ^g^B^u^c^k^ley^,⁴²⁴^U^.^{S. a}^t³⁰^,^n.^3.
⁷⁰^Id^.^a^t⁹⁰^4-⁹⁰⁵^.
⁷¹^Id^.^a^t⁹⁰^6.
⁷²^S^{ee i}^d^.^a^t⁹^06-⁹⁰^8.

The Supreme Court in Federal Election Commission (FEC) v. Beaumont,⁷³ evaluated the
constitutional application of 2 U.S.C. § 441b of the Federal Election Campaign Act (FECA) to
North Carolina Right to Life (NCRL), a tax-exempt advocacy corporation. Section 441b prohibits
corporations, including tax-exempt advocacy corporations, from using treasury funds to make
direct contributions and expenditures in connection with federal elections. Corporations seeking
to make such contributions and expenditures may legally do so only through a political action
committee or PAC.
As it notes in Beaumont, the Supreme Court has long upheld the ban on corporate contributions,
including those made by corporations that are tax-exempt under the Internal Revenue Code. ⁷⁴
However, in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), the Court created an
exception for independent expenditures made by such entities that do not accept significant
corporate or labor union money finding that restrictions on contributions require less compelling
justification under the First Amendment than restrictions on independent expenditures. In FEC v.
Beaumont, NCRL unsuccessfully attempted to extend the MCFL exception to contributions by
tax-exempt corporations.
Finding that limits on contributions are more clearly justified under the First Amendment than
limits on expenditures, the Court reaffirmed the prohibition on all corporations making direct
treasury contributions in connection with federal elections and upheld the ban on corporate
contributions as applied to NCRL. According to the Court, quoting from some of its earlier
decisions, it has upheld the “well established constitutional validity of ... regulat[ing] corporate
contributions,” including contributions by membership corporations that “might not exhibit all the ⁷⁵
evil that contributions by traditional economically organized corporations exhibit.” Stating its
refusal to “second-guess a legislative determination as to the need for prophylactic measures
where corruption is the evil feared,” the Court rejected the argument that deference to
congressional judgments is determined by whether the corporations affected by a regulation are ⁷⁶
for-profit or non-profit.
Beaumont also clarified the standard for review applicable to campaign finance regulation under
the First Amendment. In the view of the Court, determining the appropriate standard of review
depends on the nature of the activity being regulated. Commencing with its 1976 ruling in
Buckley, the Court said that it has treated the regulation of contributions as only a “marginal”
speech restriction, subject to “relatively complaisant review under the First Amendment,” since ⁷⁷
contributions are a less direct form of speech than expenditures. Hence, the Court concluded
that instead of requiring a contribution regulation to pass strict scrutiny by meeting the
requirement that it be narrowly tailored to serve a compelling governmental interest, a
contribution regulation involving “significant interference with associational rights” passes
constitutional muster by merely satisfying the lesser requirement of “being ‘closely drawn’ to

⁷³⁵³^{9 U}^.^S^.¹⁴⁶⁽²⁰⁰³⁾^.
⁷⁴⁴⁷^{9 U}^.^S^.²³⁸⁽¹⁹⁸⁶⁾^,^dis^c^us^s^e^dⁱⁿ^f^r^a^.
⁷⁵^Be^a^u^m^{ont, 53}^{9 U}^.^{S. a}^t¹⁵^{7 (q}^uo^tⁱ^ng^N^a^tiona^{l C}^ons^e^r^v^a^tiv^e^Politic^a^l^A^c^{tion Com}^m^{., 470 U}^.^{S. a}^t⁵⁰^0-0¹^).
⁷⁶^Id^.⁽^q^u^o^ti^ng^N^a^tiona^{l Rig}^h^t^t^o^W^o^rk^Com^m^{., 459}^U^.^{S. a}^t²^10).
⁷⁷^T^h^e^C^our^{t e}^x^plaⁱ^ne^{d t}^h^a^t^“^[^w^]^hil^e^c^ontrⁱ^buti^ons^m^a^y^r^e^s^u^{lt in p}^o^lit^ic^a^l^e^x^pr^e^s^sⁱ^{on if}^s^p^eⁿ^{t by}^a^c^a^ndi^da^te^or^aⁿ
^asso^ciatioⁿ^..^{. t}^h^{e tran}^sf^o^r^m^a^tioⁿ^o^f^coⁿ^t^rib^u^ti^oⁿ^sⁱⁿ^t^o^p^o^litical^d^e^b^a^{te in}^v^o^lv^{es sp}^eech^b^y^so^m^e^oⁿ^e^o^t^h^e^{r th}^aⁿ^th^e
^c^ontrⁱ^but^or^.”^Id^.^a^t¹⁶^{1 (}^q^uot^ing^B^u^c^k^ley^,^{424 U}^.^{S. a}^t^20-²¹⁾^.

match a ‘sufficiently important interest.’”⁷⁸ The Court held that the Section 441b prohibition
passed this lower level of scrutiny because it does not render a complete ban on corporate
contributions, i.e., corporations are still permitted to use treasury funds to establish, solicit funds
for, and pay the administrative expenses of a political action committee or PAC, which can then ⁷⁹
in turn make contributions. Invoking its unanimous holding in FEC v. National Right to Work,
the Court rejected the argument that the regulatory burdens on PACs, including restrictions on
their ability to solicit funds, renders a PAC unconstitutional as the only way that a corporation can ⁸⁰
make political contributions.
In summary, the Supreme Court in FEC v. Beaumont upheld the ban on corporate contributions as
applied to NCRL because corporate campaign contributions—including contributions by tax-
exempt advocacy corporations—pose a risk of harm to the political system. Consequently, the
Court found, courts owe deference to legislative judgments on how best to address their risk of
harm. In addition, the Court announced that limits on contributions are merely “marginal” speech
restrictions subject to a “relatively complaisant” or lesser review under the First Amendment than
the strict scrutiny standard of review.

This section analyzes several Supreme Court opinions decided subsequent to Buckley in which
the Court evaluated the constitutionality of expenditure limitations. The first area of case law ⁸¹
involves the regulation of corporations. In First National Bank v. Bellotti, the Court held that
corporate speech in the form of expenditures, in a state referendum, could not be suppressed
under the First Amendment. In two other corporate speech cases, the Court generally upheld a
requirement that corporate political expenditures be made from a special segregated fund or
political action committee (PAC), but subjected this requirement to an exception for “purely”
political organizations: Federal Election Commission (FEC) v. Massachusetts Citizens for Life ⁸²⁸³
(MCFL) and Austin v. Michigan Chamber of Commerce.
The second area of case law involves the regulation of labor unions. In FEC v. National Right to ⁸⁴
Work Committee the Court upheld a regulation restricting from whom labor unions can solicit
funds for their separate segregated funds or PACs. The third area of case law addresses the
regulation of political party expenditures. In Colorado Republican Federal Campaign Committee ⁸⁵
v. FEC, the Court upheld a political party’s purchase and broadcasting of radio “attack ads,”
finding it was an “uncoordinated independent expenditure.” The fourth area of case law examines

⁷⁸^Id^.⁽^q^u^o^ti^ng^B^u^c^k^ley^,⁴²⁴^U^.^{S. a}^t²⁵⁾^.
⁷⁹^S^{ee i}^d^.^a^t¹^62-^63.⁽^“^T^h^e^P^A^C^op^tⁱ^{on a}^l^l^o^w^s^c^o^r^por^a^t^e^p^o^lit^ic^a^l^pa^r^t^ic^ipa^tio^{n w}^ithou^{t t}^h^e^te^m^p^ta^{tion t}^o^us^e^c^o^r^por^a^t^e
^f^unds^f^o^{r po}^litic^a^l^inf^l^ue^nc^e^,^qui^te^pos^sⁱ^bly^a^t^odds^w^{ith t}^h^e^s^e^ntim^ents^of^s^o^m^e^s^h^a^r^e^holde^rs^{or m}^e^m^b^e^r^s^,^a^nd^{it le}^ts^t^h^e
^g^o^v^e^rn^m^e^{nt re}^g^u^la^te^c^a^m^p^aⁱ^gⁿ^a^c^tiv^ity^throug^{h re}^gⁱ^stra^{tion a}^nd^dis^c^losure^,^see^§§⁴^32-⁴³^{4, w}^itho^u^{t j}^e^opa^r^d^iz^ing^t^h^e
^asso^ci^atⁱ^oⁿ^a^l^ri^gh^t^s^o^f^ad^vo^cac^y^o^r^ganⁱ^zatⁱ^oⁿ^s^{’ m}^e^m^b^ers^”^).
⁸⁰^Id^.^(c^iti^ng^Na^tio^na^{l Rig}^h^{t t}^o^W^o^r^k^{, 459}^U.S.^a^t²^01).
⁸¹⁴³^{5 U}^.^S^.⁷⁶⁵⁽¹⁹⁷⁸⁾^.
⁸²⁴⁷^{9 U}^.^S^.²³⁸⁽¹⁹⁸⁶⁾^.
⁸³⁴⁹^{4 U}^.^S^.⁶⁵²⁽¹⁹⁹⁰⁾^.
⁸⁴⁴⁵^{9 U}^.^S^.¹⁹⁷⁽¹⁹⁸²⁾^.
⁸⁵⁵¹^{8 U}^.^S^.⁶⁰⁴⁽¹⁹⁹⁶⁾^.

the regulation of PACs. In FEC v. National Conservative Political Action Committee (NCPAC),⁸⁶
the Court struck down a prohibition on independent expenditures above $1,000 in support of a
“publicly funded” candidate.
Finally, the issue of a state statute limiting state office candidate expenditures is examined. In ⁸⁷
Randall v. Sorrell, the Court struck down a Vermont statute imposing expenditure limits finding
that the state’s primary justification for the limits was not significantly different from Congress’
rationale for the expenditure limits that the Court struck down in Buckley.
Representing an important new emphasis on First Amendment protection of corporate free
speech, in First National Bank of Boston v. Bellotti, the Supreme Court held that the fact that the
corporation is the speaker does not limit the scope of its interests in free expression, as the scope
of First Amendment protection turns on the nature of the speech, not the identity of the speaker.
However, as demonstrated in FEC v. Massachusetts Citizens for Life, Inc. (MCFL) and Austin v.
Michigan Chamber of Commerce, the fact that the speaker is a corporation may elevate the state’s
interests in regulating a corporation’s expressive activity, on equitable grounds. MCFL and Austin
appear to expand the Court’s “governmental interest” jurisprudence from the interest identified in
Buckley, i.e., avoiding candidate corruption, to a broader interest of avoiding corruption in the
entire electoral process. Although the Court emphasized that equalizing the relative voices of
persons and entities in the political process is not a valid regulatory end, MCFL and Austin appear
to hold that the government has equitable interests in ensuring fair and open debate in the political
marketplace by preventing corporate monopolization. However, in both cases, the Court stressed
that corporate wealth, in itself, is not a valid object of speech suppression.
In First National Bank of Boston v. Bellotti,⁸⁸ the Supreme Court evaluated the constitutional
basis of a Massachusetts criminal statute, which in pertinent part, prohibited corporate
expenditures made to influence the outcome of a referendum. The statute did not completely ban
corporate expenditures: it permitted expenditures when a referendum’s outcome could materially ⁸⁹
affect a corporation’s business, property, or assets. Bellotti arose in connection with a proposed
state constitutional amendment permitting the state to impose a graduated tax on an individual’s ⁹⁰
income. When the proposal was presented to the voters, a group of corporations wanted to ⁹¹
expend money to publicize their point of view; however, their desire was burdened by the
statutory provision stating that issues concerning the taxation of individuals do not “materially ⁹²
affect” a corporate interest. The corporations sought to prevent enforcement of the statute,

⁸⁶⁴⁷^{0 U}^.^S^.¹⁽¹⁹⁸⁵⁾^.
⁸⁷⁵⁴^{8 U}^.^S^.²³⁰⁽²⁰⁰⁶⁾^.
⁸⁸⁴³^{5 U}^.^S^.⁷⁶⁵⁽¹⁹⁷⁸⁾^.
⁸⁹^Id^.^a^t⁷⁶^8.
⁹⁰^Id^{. a}^t⁷⁶^9.
⁹¹^Id^.
⁹²^Id^{. a}^t⁷⁶^8.

arguing that it was facially invalid under the First and Fourteenth Amendments.⁹³ In agreement
with the corporations, the Supreme Court struck down the statute.
First, the Bellotti Court considered whether a speaker’s “corporate” identity substantively affects
the extension of First Amendment liberties. On the state’s contention that the scope of the First
Amendment narrows when the speaker is a corporation, the Court found no constitutional ⁹⁴
support. This conclusion followed from the Court’s framing of the issues. The Court did not
address the question of whether corporate interests in free speech are coextensive with those of ⁹⁵
natural persons, finding the issue peripheral to the case’s efficient resolution. Instead, the
threshold issue was whether the statute proscribed speech that “the First Amendment was meant ⁹⁶
to protect.” In other words, the Court focused on the nature of the speech, not the identity of the
speaker. As the Massachusetts statute burdened expressive activity addressing a proposed
amendment to the state constitution, the nature of the speech fell squarely within the historic and
doctrinal mandate of the First Amendment—protecting the free discussion of governmental ⁹⁷
affairs. As the corporations asserted ‘core’ First Amendment interests, the statute was subject to
“exacting scrutiny,” triggering the remaining issues, where the Court considered whether the ⁹⁸
government’s regulatory interests were compelling and obtained by narrowly tailored means.
Massachusetts advanced two rationales for the prohibition of corporate speech: (1) elevating and
“sustaining” the individual’s role in electoral politics, and (2) ensuring that corporate political ⁹⁹
expenditures are funded by shareholders who agree with their corporation’s political views. In
the context of candidate elections, the Court found these rationales “weighty,” but in a “direct ¹⁰⁰
democracy” context, they were simply not advanced in a material way.
While ensuring that individuals sustain confidence in government and maintain an active role in ¹⁰¹
elections is “of the highest importance,” the Bellotti Court did not find that regulating corporate
speech would necessarily enhance the role of the individual in this context. The Court reasoned
that the inclusion of corporate political perspectives does not demonstrate that they will unduly ¹⁰²
“influence the outcome of a referendum vote” and stressed that restricting the speech of some ¹⁰³
to amplify the voice of others is not a valid object suppression. As such, the Court held that
permitting corporate speech in a referendum does not exert coercive pressures (real or perceived) ¹⁰⁴
on the “direct democracy” process.

⁹³^Id^.^a^t⁷⁶^9.
⁹⁴^S^{ee i}^d^.^a^t⁷^84-⁷⁸^6.
⁹⁵^S^{ee i}^d^.^a^t⁷^76.
⁹⁶^Id^.
⁹⁷^S^{ee i}^d^.^a^t⁷^76-⁷⁷^{7 (c}^iti^ng^Mills^v^.^A^l^a^b^am^a^,^{384 U}^.^S^.²¹⁴^,²¹⁸⁽¹⁹^{66) (}^not^ing^t^h^a^t^the^na^ture^of^the^c^o^rpora^tⁱ^on’s
^sp^eech^“i^{s t}^h^{e t}^y^p^e^o^f^sp^eechⁱⁿ^dⁱ^sp^en^sab^l^{e t}^o^d^eci^si^on^m^a^kiⁿ^gⁱⁿ^{a d}^e^m^o^crac^y^,^an^d^t^hⁱ^sⁱ^s^no^l^e^{ss t}^r^{ue b}^ecau^{se t}^h^e
^sp^eech^co^m^e^s^f^r^o^m^{a co}^rp^o^r^atⁱ^oⁿ^rat^h^{er t}^h^an^aⁿⁱⁿ^dⁱ^vi^du^al^”).
⁹⁸^Id^.^a^t⁷⁸^7.
⁹⁹^Id^.
¹⁰⁰^Id^.^a^t⁷⁸^8.
¹⁰¹^Id^{. a}^t⁷⁸^{9 (}^c^iti^ng^B^u^c^k^le^y^,^{352 U}^.^{S. a}^t²⁾^.
¹⁰²^Id^.
¹⁰³^Id^.
¹⁰⁴^Id^.^at⁷⁹⁰^.^M^o^r^e^o^v^er^,^th^{e C}^o^u^r^t^a^sser^t^ed^t^h^at^t^h^e^p^e^op^l^e^,^no^t^th^{e gover}ⁿ^m^eⁿ^t^,^ar^{e t}^h^{e f}ⁱⁿ^a^l^ar^bⁱ^t^e^r^{and eval}^u^a^t^o^r^o^f^t^h^e
^“^r^e^l^a^tiv^e^a^{nd c}^onf^lic^ting^a^r^g^u^m^e^nts^”^{on r}^e^f^e^r^e^ndum^is^s^u^e^s^.

Likewise, the Bellotti Court rejected the state’s purported interest in protecting minority
shareholders who object to their corporation’s majority political philosophy. With respect to this
interest, the Court found the statute was both over and under-inclusive. The statute was over-
inclusive insofar as it proscribed corporate speech, where the corporate political policy and ¹⁰⁵
speech enjoyed unanimous assent by its members. The Court emphasized that corporate
democracy informs the decision to engage in public debate, that shareholders are presumed to
protect their own interests, and that they are not compelled to contribute additional funds to their ¹⁰⁶
corporation’s political activities. The statute was under-inclusive insofar as corporations may
exert political influence by lobbying for the passage and defeat of legislation and may express its ¹⁰⁷
political views on an issue when it does arise in connection to a ballot measure. As a result, the
Court held that the statute unduly infringed on the corporations’ protected free speech interest in ¹⁰⁸
expressing its political point of view.
The Supreme Court in Federal Election Commission (FEC) v. Massachusetts Citizens for Life ¹⁰⁹
(MCFL) evaluated the constitutional application of 2 U.S.C. § 441b of the Federal Election
Campaign Act (FECA), prescribing a separate segregated fund or PAC for corporate political
expenditures. In this case, the requirement was applied to a non-profit corporation founded for
purely political purposes. The founding charter of MCFL was to “foster respect for life,” a ¹¹⁰
purpose motivating various educational and public policy activities. Drawing from its general
treasury, the corporation funded a pre-election publication entitled “Everything You Need to ¹¹¹
Know to Vote Pro-life,” which triggered litigation under § 441b. As the publication was
tantamount to an “explicit directive [to] vote for [named] candidates,” MCFL’s speech constituted
“express advocacy of the election of particular candidates,” subjecting the expenditure to ¹¹²¹¹³
regulation under the express advocacy standard first articulated by the Court in Buckley.
However, as applied to MCFL, § 441b was held unconstitutional because it infringed on protected ¹¹⁴
speech without a compelling justification.
Noting that § 441b burdened expressive activity,¹¹⁵ the Court examined the government’s
regulatory interests in alleviating corruptive influences in elections by requiring the use of
corporate PACs and the Court held that concentration of wealth, in itself, is not a valid object of ¹¹⁶
regulation. The Court noted that a corporation’s ability to amass large treasuries confers upon it
an unfair advantage in the political marketplace, as general treasury funds derive from investors’

¹⁰⁵^S^{ee i}^d^.^a^t⁷^94.
¹⁰⁶^S^{ee i}^d^.^a^t⁷^94-⁷⁹^5.
¹⁰⁷^S^{ee i}^d^.^a^t⁷^93.
¹⁰⁸^S^{ee i}^d^.^a^t⁷^95.
¹⁰⁹⁴⁷^{9 U}^.^S^.²³⁸⁽¹⁹⁸⁶⁾^.
¹¹⁰^S^{ee i}^d^.^a^t²^41-²⁴^2.
¹¹¹^S^{ee i}^d^.^a^t²^42.
¹¹²^Id^.^a^t²⁴^{9. T}^h^e^C^o^ur^{t f}^o^uⁿ^d^tha^t^t^h^e^pu^blic^a^tⁱ^on^not^oⁿ^ly^ur^g^e^{d v}^o^te^r^s^{to v}^o^te^f^o^r^“^p^r^o^-^lif^e^”^c^a^ndida^te^s^,^{but a}^l^s^o
^ideⁿ^tif^ie^{d a}ⁿ^{d pr}^ov^ide^d^ph^ot^og^r^a^phs^of^s^p^e^cⁱ^fⁱ^c^c^a^ndida^te^s^.^A^s^a^r^e^{sult, t}^h^e^C^o^ur^t^de^te^r^m^ine^d^tha^t^t^h^e^pub^lic^a^tio^{n c}^o^u^l^d
^not^be^c^o^ns^ide^r^e^d^a^“^m^e^r^e^dis^c^us^sⁱ^on”^of^pub^lic^is^s^u^e^s^.^Id^.
¹¹³^Se^e^B^u^c^k^ley^v^.^Va^le^o,⁴²^{4 U}^.^S.¹^,⁴⁴⁽¹⁹⁷⁶⁾^,^s^upr^a^.
¹¹⁴^Se^e^{FEC v}^.^Ma^s^s^a^c^hus^e^tts^Citⁱ^z^eⁿ^s^f^o^{r L}ⁱ^fe^{, Inc}^{., 4}⁷⁹^U^.^{S. a}^t²^63.
¹¹⁵^S^{ee i}^d^.^a^t²^52.
¹¹⁶^Id^{. at}²⁵⁷^(“p^o^{litical ‘f}^ree-trad^{e’ d}^o^e^{s n}^o^tⁿ^ecessaril^y^re^q^uⁱ^{re [}^t^h^a^t^p^a^rticip^an^ts^]ⁱⁿ^t^h^{e p}^o^lit^{ical m}^a^r^k^etp^l^ace
^[^c^om^pe^te^w^{ith e}^qua^{l r}^e^s^our^c^e^s^]^”⁾^.

economic evaluation of the corporation, not their support of the corporation’s politics.¹¹⁷ By
requiring the use of a PAC, § 441b ensures that a corporation’s independent expenditure fund ¹¹⁸
indexes for the “popular support” of its political ideas. The Court held that by prohibiting
general treasury fund expenditures to advance a political point of view, the regulation “ensured ¹¹⁹
that competition among actors in the political arena is truly competition among ideas.”
While the Court found these interests compelling as applied to most corporations, it held the
restriction unconstitutional as applied to MCFL. Specifically, the MCFL Court found the
following characteristics exempt a corporation from the regulation: (1) its organizational purpose
is purely political; (2) its shareholders have no economic incentive in the organization’s political
activities; and, (3) it was not founded by nor accepts contributions from business organizations or ¹²⁰
labor unions.
Carving out an exception for corporations with these characteristics, the Court raised equitable
grounds for the regulation, stressing that “[r]egulation of corporate political activity . . . has
reflected concern not about the use of the corporate form per se, but about the potential for the ¹²¹
unfair deployment of [general treasury funds] for political purposes.” The Court held that
MCFL’s general treasury is not a function of its economic success, but is an index for ¹²²
membership support of its political ideas. Thus, according to the Court, purely political
organizations such as MCFL cannot constitutionally be regulated by § 441b because their
treasuries already embody what the regulation purports to achieve: an index of the corporation’s
political support. In other words, MCFL is an example of a corporation that is not at risk for ¹²³
gaining an “unfair” advantage in the electoral process.
In Austin v. Michigan State Chamber of Commerce,¹²⁴ the Supreme Court affirmed and clarified
its MCFL holding when it considered whether a non-profit corporation’s free speech rights were
unconstitutionally burdened by a state prohibition on using general treasury funds to finance a
corporation’s independent expenditures in state elections. While prohibiting expenditures from ¹²⁵
general treasury funds, the statute permitted independent contributions as long as they were ¹²⁶
made from a separate segregated fund or PAC. Plaintiff-corporation, a non-profit founded for
political and non-political purposes, asserted that the regulation burdened its First Amendment

¹¹⁷^S^{ee i}^d^.^a^t²^{58 (}^c^ite^{d by}^A^u^s^{tin, 4}^{94 U}^.^{S. a}^t⁶⁵⁹⁾^.
¹¹⁸^Id^.²⁵^8,^{see a}^l^s^o^A^u^s^tin,⁴⁹^{4 U}^.^S^.^a^t⁶^{60 (}^h^o^l^di^ng^tha^t^t^h^e^s^e^pa^r^a^te^s^e^g^r^eg^a^t^e^d^f^{und r}^e^quir^e^m^e^{nt “}^eⁿ^s^u^r^e^s^tha^t
^e^x^pe^nditur^e^s^r^e^f^l^e^c^t^a^c^t^ua^{l pub}^lic^s^upp^or^t”⁾^.
¹¹⁹^Id^.^a^t²⁵^9.
¹²⁰^S^{ee i}^d^.^a^t²^59,²^64.
¹²¹^Id^.⁽^e^m^pha^sⁱ^s^a^dde^d)^.^S^{ee al}^so^,ⁱ^d^{. a}^t²⁶^{3 (“}^v^o^lu^nta^r^y^politic^a^l^org^a^niz^a^tions^do^no^{t su}^dde^nly^pre^s^eⁿ^{t the}^spe^c^t^e^r^of
^co^rru^p^tⁱ^oⁿ^m^e^rel^y^b^y^as^su^mⁱⁿ^g^t^h^{e co}^rp^o^r^at^{e f}^o^rm^.^”^),^{but s}^e^e^A^u^{stin, 4}⁹⁴^U.S.⁶^59,⁶^{60 (s}^ug^g^e^sting^tha^t^the^se^le^c^tioⁿ
^o^f^t^h^{e co}^rpo^r^at^{e f}^o^rmⁱⁿⁱ^t^s^el^f^t^rⁱ^g^{gers t}^h^{e st}^at^{e’s regu}^l^a^t^o^r^yⁱⁿ^t^e^rest^s;^“[^t^]^h^e^unⁱ^q^u^e^st^at^e-coⁿ^f^erred^co^rpo^r^at^{e st}^ru^ct^u^r^e
^tha^t^f^a^c^ilita^te^{s the}^a^m^a^ssing^of^la^r^g^e^tre^a^s^urie^s^w^a^rra^{nts the}^lim^{it on inde}^pe^nde^{nt e}^x^pe^ndi^ture^s”^).
¹²²^S^{ee MCF}^L^,⁴⁷^{9 U.}^S^.^{at 25}⁹^.
¹²³^S^{ee i}^d^.^a^t²^60.
¹²⁴⁴⁹^{4 U}^.^S^.⁶⁵²⁽¹⁹⁹⁰⁾^.
¹²⁵^T^h^e^s^t^a^t^ute^de^fⁱ^ne^{d “}^e^x^pe^ndit^u^r^e^”^a^s^“^a^pay^m^eⁿ^{t, d}^ona^ti^on,^loaⁿ^{, p}^l^e^d^g^e^{, or}^pr^om^is^e^of^pay^m^eⁿ^{t of}^m^oney^or
^aⁿ^y^t^hing^of^a^s^ce^rtaⁱ^na^ble^m^one^ta^ry^v^a^lue^f^o^{r g}^oods^{, m}^a^te^ria^l^s^,^s^e^r^vⁱ^c^e^s^{, or f}^a^c^ilitie^s^{in a}^s^sⁱ^s^t^aⁿ^c^e^of^{, or in}^o^p^p^o^s^itio^{n t}^o^,
^theⁿ^o^mⁱ^na^tion^or^e^l^e^c^tio^{n of}^a^c^a^ndi^da^te^.”^Id^{. a}^t⁶^{55 (}^q^u^o^ti^ng^Mic^h^{. C}^o^m^p^{. L}^a^w^s^{§ 169.}²⁰⁶⁽¹⁾⁽¹⁹⁷⁹⁾⁾^.
¹²⁶^T^h^e^Mic^h^ig^aⁿ^Sta^t^u^t^e^w^a^s^m^ode^le^{d on}^a^pr^ov^is^ion^of^the^Fe^de^r^a^{l E}^l^e^c^{tion C}^a^m^p^aⁱ^gⁿ^A^c^{t (}^F^EC^A⁾^r^e^quirⁱ^ng
^c^o^r^por^a^tⁱ^ons^a^{nd la}^bor^un^io^ns^to^us^e^a^s^e^pa^r^a^te^s^e^g^r^eg^a^t^e^d^f^und^or^P^A^C^w^h^eⁿ^m^a^kⁱ^ng^inde^pe^nde^{nt e}^x^pe^ndit^u^r^e^sⁱⁿ
^c^onne^c^tio^{n w}^{ith f}^e^de^ra^{l e}^l^e^c^tions.^Se^e^A^u^s^{tin, 4}⁹⁴^U^.^{S. a}^t⁶^56,^n.^1.

interest in political speech by limiting its spending.¹²⁷ Further, the plaintiff contended that the
regulation was not narrowly tailored to obtain the state’s interests in avoiding the appearance of ¹²⁸
corruption by limiting a corporate entity’s inherent ability to concentrate economic resources.
Although economic power, in itself, does not necessarily index the persuasive value of a
corporation’s political ideas, the state argued, a corporation’s structural ability to amass wealth ¹²⁹
makes it “a formidable political presence”—a presence which triggers its regulatory interest.
Unpersuaded by the corporation’s assertion of right, the Court upheld the regulation. Under ¹³⁰¹³¹
Buckley and MCFL, the Court addressed whether the plaintiff’s free speech interests were
burdened by the regulation; evaluated the state’s regulatory interests; and asked whether the ¹³²
regulation was narrowly tailored to achieve those interests. The Court found that the plaintiff’s
freedom of expression was burdened by the regulation, but held that the state achieved its
compelling interests by narrowly tailored means.
By limiting the source of a corporation’s independent expenditures to a special segregated fund or ¹³³
PAC, the Austin Court held that the regulation burdened the plaintiff’s freedom of expression.
The regulation placed various organizational and financial burdens on a corporation’s ¹³⁴¹³⁵
management of its PAC, limited PAC solicitations to “corporate members” only; and ¹³⁶
prohibited independent expenditures from corporate treasury funds. Similar to its finding in
MCFL, the Court found that the statute’s requirements burdened, but did not stifle, the
corporation’s exercise of free expression to a point sufficient to raise a genuine First Amendment ¹³⁷
claim. Thus, to overcome the claim, the regulation had to be motivated by compelling
governmental interests and be narrowly tailored to serve those interests.
First, the Austin Court evaluated the state’s regulatory interests. The state argued that a ¹³⁸
corporation’s “unique legal and economic characteristics” renders it a “formidable political
presence” in the market place of ideas, which necessitates regulation of its political expenditures ¹³⁹
to “avoid corruption or the appearance of corruption.” The Court stressed that the regulation’s

¹²⁷^S^{ee i}^d^.^a^t⁶^58.
¹²⁸^S^{ee i}^d^.^a^t⁶^59.
¹²⁹^Id^{. (}^q^u^o^ti^ng^Fe^de^r^a^{l Ele}^c^tio^{n C}^o^m^m^’^{n v}^.^Ma^s^s^a^c^hus^e^tts^C^itiz^eⁿ^s^f^o^r^Lⁱ^f^e^{, 479 U}^.^S^.²³⁸^,²⁵⁸⁽¹⁹⁸⁶⁾⁽^M^C^F^L⁾⁾^.
¹³⁰⁴²^{4 U}^.^S^.¹⁽¹⁹⁷⁶⁾⁽^p^e^r^c^u^rⁱ^a^m⁾^.
¹³¹⁴⁷^{9 U}^.^S^.²³⁸⁽¹⁹⁸⁶⁾^.
¹³²^Se^e^A^u^stⁱⁿ^,⁴⁹^{4 U.}^S^.^at⁶⁵⁷^.^Aⁿ^t^eced^en^t^t^o^t^h^{ese i}ⁿ^quⁱ^rⁱ^e^s,^t^h^{e Cou}^r^t^af^fⁱ^r^m^ed^t^h^at^t^h^e^p^l^ai^ntⁱ^f^f^’^{s i}ⁿ^t^e^restⁱⁿ^u^sⁱⁿ^g
^g^e^ne^ra^{l f}^unds^f^o^{r inde}^peⁿ^d^eⁿ^t^e^x^pe^ndi^ture^s^is^“^p^olitic^a^l^e^x^pre^s^sⁱ^on^a^t^the^c^o^re^of^{our e}^l^e^c^t^ora^l^proc^e^s^s^a^nd^of^the^Firs^t
^Amen^d^m^en^t^f^r^eed^o^m^s.^”^Id^.^a^t⁶⁵⁷^{, (}^q^u^o^ting^B^u^c^k^ley^,^{424 U}^.^{S. a}^t³⁹⁾^.^Mor^e^ov^e^r^{, the}^C^o^ur^t^note^d^t^h^a^t^the^plaⁱ^ntif^f^’^s
^st^at^u^s^{as a co}^rp^o^r^atⁱ^o^{n d}ⁱ^dⁿ^o^t^c^o^m^p^l^e^t^e^l^y^ero^d^eⁱ^t^s^f^r^e^e^sp^eechⁱⁿ^t^e^rest^unde^r^t^h^e^Fir^s^{t A}^m^eⁿ^d^m^eⁿ^t.^Se^e^A^u^stⁱⁿ^,⁴⁹⁴
^{U.S. a}^t⁶⁵⁷^(c^iting^Be^ll^otti,⁴^{35 U}^.^{S. a}^t⁷⁷^7).
¹³³^Se^e^A^u^s^{tin, 4}⁹⁴^U^.^{S. a}^t⁶^57.
¹³⁴^{For e}^x^a^m^ple^,^the^Cour^{t n}^o^te^d^tha^t^the^re^g^u^la^tio^{n re}^q^u^ire^d^a^co^rpo^r^atⁱ^o^{n t}^o^a^p^poⁱⁿ^t^{a t}^r^easu^r^{er t}^o^ad^mⁱⁿⁱ^st^{er t}^h^{e f}^u^nd^,
^k^e^e^p^r^e^c^o^r^d^s^of^the^f^unds^’^tr^aⁿ^s^a^c^tiona^l^his^t^or^y^,^a^{nd c}^r^e^a^t^e^a^{nd pe}^rⁱ^odic^a^lly^upda^te^aⁿ^inf^o^r^m^a^tiona^{l s}^t^a^t^em^eⁿ^{t a}^bout^the
^f^{und f}^o^r^the^s^t^a^t^e^.^Id^.^a^t⁶⁵^8.
¹³⁵^Id^.
¹³⁶^Id^.
¹³⁷^Id^.^(c^iti^ng^MCFL^{, 4}⁷⁹^U.S.^a^t²⁵²^(pl^u^ra^lity^opi^nioⁿ^)).
¹³⁸^A^s^e^x^a^m^ple^s^{, the}^{Court c}^ite^{d a}^ttr^ibute^s^t^h^a^t^eⁿ^ha^nc^e^d^a^c^o^r^pora^tⁱ^o^{n’s a}^b^ility^{to m}^a^na^g^e^a^{nd a}^ttra^c^t^c^a^p^ita^{l a}^sse^ts
^f^a^v^o^ra^ble^{to its s}^h^a^r^e^hol^de^{r’s pr}^o^p^rie^t^a^r^y^inte^re^{sts, suc}^h^a^s^pe^rpe^t^u^a^{l lif}^e^,^lim^ite^{d lia}^bility^{, a}^{nd f}^a^v^o^r^a^ble^tre^a^t^m^e^{nt w}^ith
^resp^ect^t^o^t^h^{e accu}^m^u^l^a^tⁱ^o^{n an}^{d di}^st^ri^b^u^tⁱ^oⁿ^o^f^capⁱ^t^a^l^.^Au^s^tⁱⁿ^,⁴⁹^{4 U}^.^S.^a^t⁶^58-⁶⁵^9.
¹³⁹^Id^.^a^t⁶⁵^8,⁶⁵^{9 (c}^iti^ng^Fe^de^ra^{l El}^e^c^{tion Com}^m^’^{n v}^.^Na^tiona^{l Cons}^e^r^v^a^tive^P^o^litic^a^l^A^c^{tion C}^o^m^m^itt^e^e^,⁴⁷⁰^U.S.
⁽^c^onti^nue^d.^..)

purpose was not to equalize the political influence of corporate and non-corporate speakers, but to
ensure that expenditures “reflect actual public support for political ideas espoused by ¹⁴⁰
corporations.” Moreover, the Court was careful to emphasize that the mere fact that
corporations can amass large treasuries was not its justification for upholding the statute. Rather,
the Court identified the compelling state interest as “the unique state-conferred corporate ¹⁴¹
structure,” which facilitates the amassing of large amounts of wealth. On these grounds, the
Court appeared to recognize a valid regulatory interest in assuring that the conversion of
economic capital to political capital is done in an equitable way. In other words, the Court held
that corruption of the electoral process itself, rather than just the corruption of candidates, is a
compelling regulatory interest.
After finding a compelling state interest, the Austin Court determined that the regulation was
neither over-inclusive nor under- inclusive with respect to its burden on expressive activity.
Responding to the plaintiff’s argument that the regulation was over-inclusive insofar as it
included closely held corporations, which do not enjoy the same capital resources as larger or
publicly-held corporations, the Court ruled that the special benefits conferred to corporations and ¹⁴²
their potential for amassing large treasuries justified the restriction. Plaintiff’s under-
inclusiveness argument, alleging that the regulatory scheme failed to include unincorporated labor
unions with large capital assets, fared no better. The Court distinguished labor unions from
corporations on the ground that unions “amass large treasuries ... without the significant state-¹⁴³
conferred advantages of the corporate structure.” Here again, the Court remarked that the
corporate structure, not corporate wealth, triggers the state’s interest in regulating a corporation’s ¹⁴⁴
independent expenditures. Hence, despite the burden on political speech, the Court upheld the ¹⁴⁵
regulation because it was narrowly tailored to reach the state’s compelling interests.
In sum, the Austin Court clarified MCFL and upheld the three-part test for when a corporation is
exempt from the state’s general interest in requiring a corporation to use a separate segregated ¹⁴⁶
fund or PAC for its “independent expenditures.” Under Austin, a corporation is exempt from
the PAC requirement when (1) the “organization was formed for the express purpose of ¹⁴⁷
promoting political ideas;” (2) no entity or person has a claim on the organization’s assets or
earnings, such that “persons connected with the organization will have no economic disincentive

^(...c^on^tin^ue^d)
⁴⁸⁰^{, 4}⁹⁶^-⁴⁹^{7 (}¹⁹⁸⁵⁾^{, a}ⁿ^d^MC^FL^,⁴⁷^{9 U}^.^S^.^a^t²⁵⁸⁾⁾^.
¹⁴⁰^Id^{. a}^t⁶⁶^0.
¹⁴¹^Id^.
¹⁴²^S^{ee i}^d^.^a^t⁶^63.
¹⁴³^Id^.^a^t⁶⁶^5.
¹⁴⁴^Id^.^(“^T^h^e^de^sire^to^c^o^uⁿ^te^r-ba^l^aⁿ^c^e^those^a^d^v^a^nta^g^e^s^uniq^u^e^to^the^c^o^rpora^t^e^f^o^rm^{is the}^Sta^t^e^’^{s c}^o^m^p^e^llingⁱⁿ^te^re^st
ⁱⁿ^t^hⁱ^s^case.^”)^{But se}^e^M^C^F^L^,⁴⁷^{9 U.}^S^.^at²⁵⁹^(“^[^r^]^e^gu^l^a^tⁱ^oⁿ^o^f^t^h^e^co^rp^o^r^at^e^p^o^lⁱ^tⁱ^cal^actⁱ^vⁱ^t^y^t^h^u^s^{has ref}^l^ect^ed
^c^onc^e^r^{n n}^o^{t a}^b^ou^{t t}^h^e^c^o^rp^ora^t^e^f^o^rm^pe^{r se}^{, but a}^b^o^u^{t t}^h^e^p^o^te^ntia^{l f}^o^{r unf}^aⁱ^{r de}^pl^oy^m^e^{nt of}^w^e^a^{lth f}^o^{r politic}^a^l
^pur^pos^e^s^”⁾^.
¹⁴⁵^T^h^e^C^our^{t a}^l^s^o^c^onsⁱ^d^e^r^e^d^w^h^e^t^h^e^r^the^c^o^r^p^or^a^tio^n’^s^“ⁱ^de^olog^ic^a^l^”^pur^pos^e^s^{, r}^a^the^r^thaⁿ^p^u^r^e^ly^“^e^c^onom^ic^”
^pur^pos^e^s^{, pr}^ov^ide^d^a^c^ons^tit^uti^oⁿ^a^{l w}^a^r^r^aⁿ^{t f}^o^r^“^e^x^ce^pting^”^{it f}^r^om^the^“^s^e^g^r^e^g^a^tion”^r^e^quir^e^m^e^nt.
¹⁴⁶^Se^e^A^u^stⁱⁿ^,⁴⁹^{4 U.}^S^.⁶⁶²^-⁶⁶^4.
¹⁴⁷^Id^.^a^t⁶⁶^{2 (}^q^u^o^ting^MC^FL^{, 47}^{9 U}^.^{S. a}^t²⁶⁴⁾^.

for disassociating with it if they disagree with its political activity;”¹⁴⁸ and (3) the organization is ¹⁴⁹
independent from “the influence of business corporations.”

In Federal Election Commission (FEC) v. National Right to Work Committee (NRWC),¹⁵¹ the
Supreme Court evaluated 2 U.S.C. § 441b(b)(4)©) of FECA, which requires labor unions to
solicit only “members” when amassing funds for its separate segregated fund or PAC. In
particular, the Court considered, inter alia, whether the Federal Election Commission’s (FEC)
interpretation of “member” abridged NRWC’s associational rights and held that it did not. The
NRWC, a non-profit corporation, essentially considered anyone who gave a contribution a ¹⁵²
“member.” On the other hand, the FEC advanced a narrower definition of “member,” under
which a participant would have to display various levels of involvement with the soliciting-¹⁵³
organization, beyond providing a contribution, or the participant would have to enjoy ¹⁵⁴
responsibilities, rather than mere privileges, in connection to the soliciting organization.
Persuaded by the FEC’s interpretation, the Court held that NRWC’s asserted associational
liberties were burdened by the FEC’s definition, but were overborne by the state’s regulatory ¹⁵⁵
interests. While associational rights are “basic constitutional” freedoms deserving of the ¹⁵⁶
“closest scrutiny,” they are not absolute. While § 441b restricts the solicitations of corporations
and labor unions, thereby restricting their freedom of association, the state had an interest in
hedging corporations and labor organizations’ particular legal and economic attributes, since they

¹⁴⁸^Id^.^a^t⁶⁶^{3 (}^q^u^o^ting^MC^FL^{, 47}^{9 U}^.^{S. a}^t²⁶⁴⁾^.
¹⁴⁹^Id^.^a^t⁶⁶^{4 (}^c^iti^ng^MC^FL^{, 4}⁷⁹^U^.^{S. a}^t²⁶⁴⁾^.
¹⁵⁰^Ou^t^sⁱ^d^{e t}^h^{e F}ⁱ^rst^A^m^en^d^m^en^t^an^d^B^u^ckl^ey^c^oⁿ^t^e^x^{ts, but}^re^le^v^a^{nt to the}^re^g^u^la^ti^on^of^pol^itic^a^l^a^c^tiv^itie^{s by}^la^bor
^uni^ons^{, in}^C^o^mmuⁿⁱ^ca^tⁱ^oⁿ^s^Wo^rk^{ers o}^f^A^m^eri^c^a^v.^B^eck,⁴^{87 U}^.^S.⁷³⁵⁽¹⁹⁸⁸⁾^{, t}^h^e^S^upr^e^m^e^C^our^{t c}^ons^ide^r^e^d^w^h^e^t^he^r
^the^N^a^tiona^l^L^a^bor^R^e^la^tio^ns^A^c^{t, 29 U}^.^S.C^.^§¹⁵⁸⁽^a⁾⁽³⁾^,^pe^r^m^its^a^la^bor^uni^on^{to e}^x^peⁿ^d^f^uⁿ^d^s^c^o^lle^c^t^e^d^f^r^om^due^s
^pa^yⁱ^ng^{, non-u}ⁿⁱ^{on m}^e^m^b^e^r^em^ploy^e^e^s^f^o^{r a}^c^tiv^itie^s^unre^l^a^t^e^d^{to c}^o^l^l^e^c^tiv^e^ba^rg^aⁱ^ning^{, c}^ontra^c^t^a^d^mⁱ^nis^t^ra^tio^{n, a}ⁿ^d
^gri^e^van^ce^ad^j^u^st^m^eⁿ^t^.^T^h^{e p}^l^aiⁿ^l^aⁿ^g^u^a^{ge o}^f^t^h^{e act}^p^e^r^mⁱ^t^s^an^emp^l^o^y^{er an}^d^an^excl^u^sⁱ^v^{e b}^a^rgaiⁿⁱ^{ng rep}^r^esen^t^a^tⁱ^v^{e t}^o
^eⁿ^te^{r int}^o^aⁿ^a^g^re^e^m^eⁿ^{t re}^quiri^ng^a^{ll e}^m^plo^y^e^e^s^{in the}^ba^rg^aⁱ^ning^uⁿ^{it t}^o^pa^y^pe^riodic^un^io^{n d}^u^e^s^aⁿ^d^initia^ti^on^f^e^e^s^a^s^a
^c^ondi^tio^{n of}^c^oⁿ^tin^ue^{d e}^m^ploy^m^e^{nt, w}^h^e^t^he^r^orⁿ^o^{t t}^h^e^e^m^ploy^e^e^s^othe^r^w^is^e^wⁱ^s^h^to^be^a^m^e^m^b^e^r^of^the^uⁿⁱ^on.^Se^e
^B^e^c^k^{, 487 U}^.^S^.^a^t⁷³^{6. T}^h^e^C^o^ur^t^f^{ound t}^h^a^t^C^ong^r^e^s^s^inteⁿ^d^e^d^t^o^c^o^r^r^e^c^t^a^bus^e^s^a^s^s^o^cⁱ^a^t^e^d^w^{ith “}^c^l^o^s^e^d^s^h^o^p^”
^a^g^re^em^eⁿ^ts^by^li^m^iting^c^o^m^puls^o^ry^unionis^m^{to re}^gⁱ^m^e^s^tha^t^re^quir^e^non-m^e^m^b^e^r^c^ontri^buti^ons^on^ly^ins^o^f^a^{r a}^s^the^y^a^r^e
^ne^c^e^s^s^a^r^y^{to de}^f^r^ay^the^c^o^s^t^s^of^c^o^lle^c^tiv^e^-^ba^r^g^aⁱ^ning^e^f^f^o^r^t^s^m^a^de^on^be^ha^lf^of^uni^{on a}ⁿ^d^no^n-^uⁿ^ioⁿ^e^m^plo^y^e^e^s^.^S^{ee i}^d^.
^a^t⁷⁴^{5. A}^c^c^o^r^d^ing^l^y^,^the^C^our^t^he^{ld t}^h^a^t^the^a^c^t^doe^sⁿ^o^t^pe^r^m^{it a}^unioⁿ^,^ov^e^r^the^o^b^je^c^tio^ns^of^due^s^pa^yⁱ^ng^nonm^em^be^r
^em^ploy^ee^s^,^{to e}^x^pe^{nd f}^uⁿ^d^s^c^o^lle^c^t^e^d^f^r^om^them^{on a}^c^tiv^itie^s^unre^l^a^t^e^d^{to c}^o^lle^c^tiv^e^ba^rg^aⁱ^ning^{, inc}^l^udi^ng^f^unds
^e^x^pe^nde^{d f}^o^{r p}^o^litic^a^l^a^c^tiv^itie^s.^{See i}^d^.^a^t⁷^44-⁶²^{. F}^o^r^f^u^r^t^he^r^dis^c^u^s^sⁱ^on^of^C^o^m^m^unic^a^{tion W}^o^r^k^e^r^{s of}^A^m^e^r^ic^a^v^.
^Beck,^see^C^R^S^R^e^por^{t 97-}⁶¹^8,^Th^e^Use^{of La}^{bor U}ⁿ^io^{n Due}^s^F^o^{r P}^o^litic^a^l^Pur^pose^s^{: A}^Le^gal^An^aly^s^is^{, by}^L^.^P^a^ig^e
^W^h^ita^k^e^r.
¹⁵¹⁴⁵^{9 U}^.^S^.¹⁹⁷⁽¹⁹⁸²⁾^.
¹⁵²^S^{ee i}^d^.^a^t²^{02 (}^“^A^pe^r^s^on^w^{ho, t}^h^r^oug^h^his^r^e^s^p^ons^e^[^t^o^the^or^g^a^niz^a^tion’^s^pu^blic^a^tio^ns^or^m^a^te^rⁱ^a^l^]^,^e^v^ideⁿ^c^e^s^aⁿ
^inte^nti^oⁿ^{to s}^u^p^por^t^N^R^W^C^{in pr}^om^oting^[^t^he^or^g^a^niz^a^tio^n’^s^pur^p^o^s^e^s^]^qua^lif^ie^s^a^s^a^m^e^m^b^e^r^”⁾^.^Id^.^U^nde^r^t^h^is
^de^fⁱ^nition^,^c^o^ntrib^u^t^o^rs^to^the^N^R^W^C^’s^s^e^g^r^e^g^a^t^e^d^f^{und w}^e^re^c^ons^true^{d a}^s^m^e^m^b^e^r^s^.
¹⁵³^S^{ee i}^d^.^a^t²^{03 (“}^A^pe^rs^on^isⁿ^o^{t c}^ons^ide^r^e^d^a^m^e^m^b^e^r^{... if}^the^only^re^quire^m^e^{nt f}^o^{r m}^e^m^b^e^r^s^h^{ip is}^a^c^ontri^buti^oⁿ^to
^a^s^e^pa^r^a^te^s^e^g^r^e^g^a^t^e^d^f^und”⁾^.¹¹^C^F^R^§¹¹^4.1(^e⁾⁽¹⁹⁸²⁾^.
¹⁵⁴^S^{ee NR}^WC^{, 4}^{59 U}^.^{S. a}^t²⁰^3.
¹⁵⁵^S^{ee i}^d^.^a^t²^07.
¹⁵⁶^S^{ee i}^d^.^a^t²^06-²⁰^7.

may be converted into a political advantage.¹⁵⁷ For example, corporations and labor unions can
amass large, financial “war chests,” which could be leveraged to incur political debts from ¹⁵⁸
candidates. Indeed, citing Bellotti, the Court affirmed the fundamental importance of curbing ¹⁵⁹
the potential, corruptive influence represented by political debts. The Court was further
persuaded by the state’s additional interest in protecting investors and members who provide
financial support to their organization over their objection to or distaste for the corporation’s ¹⁶⁰
majority-political philosophy. “In order to prevent both actual and apparent corruption,” the
Court concluded, “Congress aimed a part of its regulatory scheme at corporations, [reflecting a
constitutionally warranted] judgment that the special characteristics of the corporate structure ¹⁶¹
require particularly careful regulation.”
In Colorado Republican Federal Campaign Committee v. Federal Election Commission ¹⁶²
(Colorado I), the Supreme Court examined whether the FECA “Party Expenditure ¹⁶³
Provision,” which imposed dollar limits on political party expenditures “in connection with the
general election campaign of a [congressional] candidate,” was unconstitutionally enforced
against a party’s funding of radio “attack ads” directed against its likely opponent in a federal
senatorial election. This case concerned expenditures for radio ads by the Colorado Republican
Party (CRP), which attacked the likely Democratic Party candidate in the 1986 senatorial ¹⁶⁴
election. At the time the ads were purchased and aired, the CRP already transferred to the
National Republican Party the full amount of the funds it was permitted to expend “in connection ¹⁶⁵
with” senatorial elections under FECA. Finding that the CRP exceeded its election spending
limits, the FEC noted that the ads were purchased after the fund transfer and found that the ¹⁶⁶
expenditure was “in connection with the campaign of a candidate for federal office.” The CRP
challenged the constitutionality of the Party Expenditure Provision’s “in connection with” ¹⁶⁷
language as unconstitutionally vague and objected to how the provision was applied in this

¹⁵⁷^S^{ee i}^d^.^a^t²^07.
¹⁵⁸^S^{ee i}^d^.^a^t²^07-²⁰^8.
¹⁵⁹^S^{ee i}^d^.^a^t²^{09 (c}^it^ing^Be^llo^tti,⁴³^{5 U.S.}^a^t⁷^88,^n.²⁶^.).
¹⁶⁰^S^{ee i}^d^.^a^t²^08.
¹⁶¹^Id^.^a^t²⁰^9-²¹⁰^.^F^o^r^r^e^a^s^ons^sⁱ^m^ila^r^{to t}^hos^eⁱⁿ^Austⁱⁿ^and^MC^F^L^,^t^h^e^C^our^{t he}^l^d^t^h^a^t^the^r^e^g^u^la^ti^on^w^a^s^na^r^r^o^w^l^y
^ta^ilore^{d t}^o^a^ttaⁱⁿ^{its re}^g^u^la^tory^int^e^re^sts.^S^{ee i}^d^.^a^t²¹^0.
¹⁶²⁵¹^{8 U}^.^S^.⁶⁰⁴⁽¹⁹⁹⁶⁾^.
¹⁶³^{2 U}^.^S^.^C^.^{§ 4}^41a⁽^d⁾⁽³⁾^.
¹⁶⁴^Se^e⁵¹^{8 U}^.^{S. a}^t⁶¹^2.
¹⁶⁵^A^t^the^tim^e^of^{this de}^cⁱ^sion,^FEC^A^e^x^e^m^pte^d^politic^a^l^pa^rtie^{s f}^r^om^{its g}^e^ne^ra^{l c}^ontri^but^io^{n a}ⁿ^d^e^x^pe^ndit^u^re^lim^its,
^w^h^ic^{h lim}^{its “}^m^ulti-c^a^ndida^te^”^po^litic^a^l^c^o^m^m^itte^e^s^{to m}^a^kⁱ^ng^no^m^o^re^thaⁿ^$5,⁰⁰^{0 i}ⁿ^dire^c^t^aⁿ^dⁱⁿ^dire^c^t^c^ontrⁱ^b^u^tio^ns
^{to c}^a^ndi^da^te^s^.^Se^e^{2 U.S.C}^.^§^§⁴⁴^1a^(a^{)(2),(7)(B)(i}^{). I}ⁿ^ste^a^d^{, FECA}^a^llow^e^{d politic}^a^l^pa^rtie^{s to}^m^a^k^e^g^r^e^a^t^e^r
^c^ontrⁱ^buti^ons^a^{nd e}^x^peⁿ^d^it^ur^e^s^.^See^{§§ 4}^41a⁽^d^)(1),(³^)(A^{). In t}^h^{is c}^a^s^e^the^CR^P^q^u^a^lif^ie^{d to s}^p^eⁿ^d^a^b^o^u^{t $}¹⁰³^,⁰⁰⁰ⁱⁿ
^c^onne^c^tio^{n w}^{ith t}^h^e^s^e^na^torⁱ^a^l^c^a^m^p^aⁱ^gⁿ^{, but tr}^aⁿ^s^f^e^r^r^e^{d tha}^t^a^m^{ount t}^o^theⁱ^r^na^ti^ona^l^pa^r^t^y^.^Se^e⁵¹⁸^U.^S^.^at⁶¹^1.
¹⁶⁶^S^{ee i}^d^.^at⁶¹²^.^Ho^w^e^ver,^at^t^h^{e t}ⁱ^m^{e o}^f^t^h^{e exp}^eⁿ^dⁱ^t^u^re,^t^h^{e Repu}^b^lⁱ^can^{s h}^a^dⁿ^o^t^sel^ect^ed^t^h^ei^{r sen}^a^t^o^ri^al^can^dⁱ^d^a^t^e^.
^S^{ee i}^d^.^a^t⁶¹^4.
¹⁶⁷^S^{ee i}^d^.^a^t⁶^18.

instance.¹⁶⁸ Rendering a narrow holding, the Court found for the CRP on a portion of its “as
applied” challenge.
The Court’s ruling turned on whether CRP’s ad purchase was an “independent expenditure,” a ¹⁶⁹
“campaign contribution” or a “coordinated expenditure.” “Independent expenditures,” the
Court noted, do not raise heightened governmental interests in regulation because the money is ¹⁷⁰
deployed to advance a political point of view “independent” of a candidate’s viewpoint. Indeed,
the Court found that when independent expenditures display little coordination and
prearrangement between the payor and a candidate, they alleviate the expenditure’s corruptive ¹⁷¹
influence on the polity. Moreover, the Court stressed that restrictions on independent
expenditures “represent substantial . . . restraints on the quantity and diversity of political ¹⁷²¹⁷³
speech,” and constrict “core First Amendment activity.” However, restrictions on
“contributions,” which only marginally impair a “contributor’s ability to engage in free ¹⁷⁴
communication,” do not burden free speech interests to the same degree and decrease the risk ¹⁷⁵
that corruptive influences will taint the political process. Similarly, “coordinated expenditures”
are not as inviolable as “independent expenditures” because they are the functional equivalent of
a “contribution” and accordingly, they trigger regulatory interests in staving off real and ¹⁷⁶
perceived corruption. Given the heightened First Amendment protection of independent
expenditures, the Court did “not see how a provision that limits a political party’s independent ¹⁷⁷
expenditures” could withstand constitutional scrutiny.
The Court held that the CRP’s ad purchase was an independent expenditure deserving
constitutional protection. In categorizing the expenditure, the Court emphasized that at the time of
the purchase the Republicans had not nominated a candidate and that the CRP’s chairman
independently developed the script, offering it for review only to the Party’s staff and the Party’s ¹⁷⁸
executive director. Moreover, the Court held that the CRP asserted significant free speech
interests because “independent expression of a political party’s philosophy is ‘core’ First ¹⁷⁹
Amendment activity.”
According to the Court, the CRP’s First Amendment interests were not counterbalanced by the
state’s interest in protecting the sanctity of the political process, as restraints on “party”
expenditures neither eliminate nor alleviate corruptive pressures on the candidate through an ¹⁸⁰
expectation of a quid pro quo. The greatest risk for corruption, the Court recognized, resided in
the ability of an individual to circumvent the $1,000 restraint on “individual contributions” by

¹⁶⁸^S^{ee i}^d^.^a^t⁶^13.
¹⁶⁹^S^{ee i}^d^a^t⁶¹^{4, 61}^{5, 61}^{8, 62}^2-⁶²³^.
¹⁷⁰^S^{ee i}^d^.^a^t⁶^14-⁶¹^{5 (c}^iti^ng^Fe^de^ra^{l Ele}^c^tion^Com^m^{’n v}^.^Na^tiona^{l C}^o^nse^r^v^a^tiv^e^P^o^litic^a^l^A^c^{tion C}^o^m^m^itte^e^(NCP^A^C^),
⁴⁷⁹^U^.^S.²^{38 (}¹⁹⁸⁵⁾⁾^.
¹⁷¹^S^{ee i}^d^.^a^t⁶^{15 (}^c^it^ing^B^u^c^k^le^y^,^{424 U}^.^S.^a^t⁴⁷⁾^.
¹⁷²^{Id. (}^q^u^o^ti^ng^Buc^k^le^y^,⁴²⁴^U^.^{S. a}^t¹⁹⁾^.
¹⁷³^Id^.^a^t⁶¹^6.
¹⁷⁴^Id^.^a^t⁶¹^{4 (}^q^u^o^ting^B^u^c^k^ley^,⁴²⁴^U^.^{S. a}^t²⁰^-²¹⁾^.
¹⁷⁵^Id^.^a^t⁶¹^5.
¹⁷⁶^S^{ee i}^d^.^a^t⁶^10,⁶^11,⁶^13,⁶^19.
¹⁷⁷^S^{ee i}^d^.^a^t⁶^15.
¹⁷⁸^S^{ee i}^d^.^a^t⁶^14-⁶¹^5.
¹⁷⁹^Id^.^a^t⁶¹^6.
¹⁸⁰^S^{ee i}^d^.^a^t⁶^17.

making a $20,000 party contribution with the expectation that it will benefit a particular
candidate; however, the Court did not believe “that the risk of corruption here could justify the ¹⁸¹
‘markedly greater burden on basic freedoms caused by’ . . . limitations on expenditures.” If
anything, the Court remarked, an independent expenditure originating from a $20,000 donation
that is controlled by a political party rather than an individual donor would seem less likely to ¹⁸²
corrupt than a similar independent expenditure made directly by a donor. Additionally, the
Court held that the statute was not overly broad and was narrowly tailored to obtain its
compelling interests.
In FEC v. Colorado Republican Federal Campaign Committee (Colorado II),¹⁸³ the Supreme
Court ruled 5 to 4 that a political party’s coordinated expenditures, unlike genuine independent
expenditures, may be limited in order to minimize circumvention of FECA contribution limits.
While the Court’s opinion in Colorado I was limited to the constitutionality of the application of ¹⁸⁴
FECA’s “Party Expenditure Provision,” to an independent expenditure by the Colorado
Republican Party (CRP), in Colorado II the Court considered a facial challenge to the
constitutionality of the limit on coordinated party spending.
Persuaded by evidence supporting the FEC’s argument, the Court found that coordinated party ¹⁸⁵
expenditures are indeed the “functional equivalent” of contributions. Therefore, in its
evaluation, the Court applied the same scrutiny to the coordinated “Party Expenditure Provision”
that it has applied to other contribution limits, i.e., whether the restriction is “closely drawn” to ¹⁸⁶
the “sufficiently important” governmental interest of stemming political corruption. The Court
further determined that circumvention of the law through “prearranged or coordinated ¹⁸⁷
expenditures amounting to disguised contributions” is a “valid theory of corruption.” In
upholding the limit, the Court noted that “substantial evidence demonstrates how candidates,
donors, and parties test the limits of the current law,” which, the Court concluded, “shows beyond
serious doubt how contribution limits would be eroded if inducement to circumvent them were ¹⁸⁸
enhanced by declaring parties’ coordinated spending wide open.”
Although Federal Election Commission (FEC) v. Democratic Senatorial Campaign Committee ¹⁸⁹
(DSCC) dealt primarily with issues of statutory construction and application, the Supreme
Court’s rationale is relevant to the extension of Buckley and the First Amendment generally.
Specifically, the Court addressed whether 2 U.S.C. § 441a(d) of FECA, which prohibits party
committees from making expenditures on behalf of candidates, extends to party expenditures paid
on behalf of other state and national party committees. This case arose in connection with the
National Republican Senatorial Campaign Committee’s (NRSC) agency relationship with its state
and national party committees, under which the NRSC made various expenditures on behalf of its

¹⁸¹^S^{ee i}^d^.⁽^q^uotiⁿ^g^B^u^c^k^le^y^,^{424 U}^.^{S. a}^t⁴⁴⁾^.
¹⁸²^S^{ee i}^d^.
¹⁸³⁵³^{3 U}^.^S^.⁴³¹⁽²⁰⁰¹⁾^.
¹⁸⁴^{2 U}^.^S^.^C^.^{§ 4}^41a⁽^d⁾⁽³⁾^.
¹⁸⁵^Id^a^t⁴⁴^7.
¹⁸⁶^Id^.^a^t⁴⁵^6.
¹⁸⁷^Id^.^a^t⁴⁴^{6, 45}^6.
¹⁸⁸^Id^.^a^t⁴⁵^7.
¹⁸⁹⁴⁵^{4 U}^.^S^.²⁷⁽¹⁹⁸¹⁾^.

state and national affiliates.¹⁹⁰ The DSCC challenged an FEC interpretation of §441a(d) ¹⁹¹
permitting the NRSC to make such expenditures. The Court affirmed the FEC’s interpretation.
Under Buckley, the Court held, inter alia, the FEC’s interpretation was not inconsistent with the ¹⁹²
purpose of FECA. Agency agreements do not raise the risk of corruption nor the appearance of
corruption, spawned by the real or perceived coercive effect of large candidate contributions, so ¹⁹³
long as the candidate is not a party to the agency relationship. Under an agency agreement,
contribution limits to candidates apply with equal force when a committee transfers its spending
authority to one of its affiliate committees—the agreement does not increase the expenditure of a ¹⁹⁴
single additional dollar under FECA. Thus, the Court held, non-candidate agency agreements
are consistent with Buckley and the purposes of FECA.
In Federal Election Commission (FEC) v. National Conservative Political Action Committee ¹⁹⁵
(NCPAC), the Supreme Court held that the First Amendment prohibits enforcement of 26
U.S.C. § 9012(f) of FECA, which proscribed any “committee, association, or organization” from
making expenditures over $1,000 in furtherance of electing a “publicly financed” presidential
candidate. NCPAC arose in connection with President Reagan’s 1984 bid for reelection, where the
Democratic National Committee sought an injunction under § 9012(f) against NCPAC from ¹⁹⁶
expending “large sums of money” to support President Reagan’s publicly funded campaign.
NCPAC, an ideological multicandidate political committee, argued that § 9012(f) unduly
burdened its First Amendment interests in free expression and free association, as its expenditures ¹⁹⁷
were protected as “independent expenditures.” NCPAC intended to raise and expend money for
the purposes of running radio and television ads to encourage voters to elect Reagan.
Holding § 9012(f) unconstitutional, the Court found that the expenditure limitation burdened
NCPAC’s “core” First Amendment speech, that it was supported by a comparatively weak state
interest, and that it was fatally over-inclusive. The Court noted that in Buckley it had upheld
expenditure restrictions on individual and political advocacy associations; however, in this case,
the fact that NCPAC’s expenditures were not made in coordination with the candidate supplied
the distinguishing key opening the door to First Amendment protection. In sum, a regulation may
not burden a non-candidate’s First Amendment rights based on whether a candidate accepts or
does not accept public funds.
The Court first determined whether NCPAC was entitled to First Amendment protection. After
interpreting the statute as proscribing NCPAC’s expenditures, the Court concluded that the
proscription burdened speech “of the most fundamental First Amendment activities, [as the

¹⁹⁰^S^{ee i}^d^.^a^t²⁹^,^30.
¹⁹¹^S^{ee i}^d^.^a^t³¹^.
¹⁹²^S^{ee i}^d^.^a^t⁴¹^.
¹⁹³^S^{ee i}^d^.
¹⁹⁴^S^{ee i}^d^.
¹⁹⁵⁴⁷^{0 U}^.^S^.⁴⁸⁰⁽¹⁹⁸⁵⁾^.
¹⁹⁶^S^{ee i}^d^.^a^t⁴^83.
¹⁹⁷^S^{ee i}^d^.^a^t⁴^90.

discussion of] public issues and debate on the qualification of candidates [is] integral to [a ¹⁹⁸
democratic form of governance.]” While the statute did not exact a prior restraint on NCPAC’s
political speech, the Court held that limiting their expenditures to no more than $1,000 in today’s
sophisticated (and expensive) media market was akin to “allowing a speaker in a public hall to ¹⁹⁹
express his views while denying him the use of an amplifying system.”
The Court then rejected the argument that NCPAC’s organizational structure eroded its First
Amendment liberty interests. Associational values and class consciousness pervaded the Court’s
reasoning. For example, the Court stressed that political committees are “mechanisms by which
large numbers of individuals of modest means can join together in organizations which serve to ²⁰⁰
‘amplify the voice of [the committee’s] adherents.’” Moreover, the Court did not find that
individuals were speaking through a political committee constitutionally significant: “to say that .
. . collective action in pooling ... resources to amplify [a political perspective] is not entitled to ²⁰¹
full First Amendment would [unduly disadvantage those of modest means].” The Court ²⁰²
distinguished its holding in National Right to Work Committee, which upheld a FECA
regulation of corporations and unions by virtue of their unique organizational structure, and noted
that “organizational structure” is irrelevant to its facial analysis of § 9012(f) because the statute
equally burdens informal groups who raise and expend money in support of federally funded ²⁰³
presidential candidates.
After concluding that NCPAC’s First Amendment liberties were burdened by § 9012(f), the Court
evaluated the state’s regulatory interests and asked whether the section was narrowly tailored to
reach those interests. The state’s interests in alleviating the specter of corruption through a
regulation which proscribes uncoordinated, independent expenditures by informal and formal
organizations were not compelling to the Court as “independent expenditures may well provide
little assistance to the candidate’s campaign and indeed may prove counter productive.” As such,
the Court held that low probability of truly independent expenditures materializing into a political
debt owed by the candidate to an independent speaker significantly undermined the state’s
asserted interest in deterring actual and perceived corruption. Entertaining the state’s contention
that the ability of political committees to amass large pools of funds increase the risk of
corruption tainting the political process, the Court held that § 9012(f) was fatally over-inclusive, ²⁰⁴
as it included within its scope informal groups that barely clear the $1,000 limitation.
In Randall v. Sorrell,²⁰⁵ the Supreme Court struck down as unconstitutional a Vermont statute
imposing expenditure limits on state office candidates. The expenditure limits imposed were

¹⁹⁸^S^{ee i}^d^.^a^t⁴^{93 (}^q^u^o^ti^ng^B^u^c^k^le^y^,⁴²⁴^U^.^S.^a^t¹⁴⁾^.
¹⁹⁹^Id^.^S^ee^a^l^so^Buc^k^le^y^,^{424 U}^.^S^.^a^t^19(“^A^re^s^t^ric^tion^on^the^a^m^ount^of^m^one^y^a^pe^rs^{on or g}^r^ou^{p c}^aⁿ^s^p^e^nd^on^p^o^litic^a^l
^c^o^m^m^unic^a^{tion d}^u^ring^a^c^a^m^pa^{ign ne}^c^e^ssa^rily^re^duc^e^s^the^quaⁿ^tity^of^e^x^pre^{ssion by}^re^stric^ting^theⁿ^u^m^b^e^r^of^issue^s
^dⁱ^scu^ssed^,^t^h^{e d}^e^p^t^h^o^f^t^h^ei^{r exp}^l^o^r^atⁱ^oⁿ^,^and^t^h^{e si}^{ze o}^f^t^h^{e au}^dⁱ^eⁿ^{ce reach}^ed^.^T^hⁱ^sⁱ^s^b^ecau^{se vi}^rt^u^a^l^l^y^e^v^er^y^mean^{s o}^f
^c^o^m^m^unic^a^ting^ide^a^s^{in to}^da^y^’^s^m^a^s^s^s^o^cⁱ^e^t^y^r^e^quir^e^s^the^e^x^pe^ndi^tur^e^of^m^oney^.^”⁾
²⁰⁰^N^C^P^A^C^,⁴^{70 U}^.^{S. a}^t⁴⁹^{4 (}^q^u^o^tin^g^B^u^c^k^ley^,^{424 U}^.^S^.^a^t²²⁾^.
²⁰¹^Id^.^a^t⁴⁹^{5 (}^d^isting^uⁱ^shiⁿ^g^Ca^lif^ornia^Me^dic^a^l^A^ssoc^.⁴⁵^{3 U.S}^.^a^t¹^{96 (}^M^a^r^sha^l^{, J.) (}^p^lu^ra^lity^opini^on^)).
²⁰²^Discu^ssed^s^upr^a^.
²⁰³^Se^e^N^C^P^A^C^,⁴⁷⁰^U^.^{S. a}^t⁴^96.
²⁰⁴^S^{ee i}^d^.^a^t⁴^98.
²⁰⁵⁵⁴^{8 U}^.^S^.²³⁰⁽²⁰⁰⁶⁾^.

approximately $300,000 for governor, $100,000 for lieutenant governor, $45,000 for other
statewide offices, $4,000 for state senate, and $3,000 for state representative, all of which were ²⁰⁶
adjusted for inflation in odd-numbered years.
In support of such statutory expenditure limits, the State of Vermont proffered that they were
justified by the state interest in reducing the amount of time that candidates spend raising money.
That is, according to a brief filed by Vermont Attorney General Sorrell, absent expenditure limits,
increased campaign costs—coupled with the fear of running against an opponent having more
funds—means that candidates need to spend more time fundraising instead of engaging in public
debate and meeting with voters. Supporters of the law further argued that, in Buckley, the Court
did not consider this time-saving rationale and had it done so, it would have upheld FECA’s ²⁰⁷
expenditure limitations back in 1976.
While unable to reach consensus on a single opinion, six justices of the Supreme Court agreed
that First Amendment free speech guarantees were violated by the Vermont expenditure limits.
Announcing the Court’s judgment and delivering an opinion, which was joined by Chief Justice
Roberts and Justice Alito, Justice Breyer found that there was not a significant basis upon which
to distinguish the expenditure limits struck down in Buckley from the expenditure limits at issue
in Randall. According to Justice Breyer, it was “highly unlikely that fuller consideration of . . . ²⁰⁸
[the] time protection rationale would have changed Buckley’s result.” In Buckley, the Court
recognized the link between expenditure limits and a reduction in the time needed by a candidate ²⁰⁹
for fundraising, but nonetheless struck down spending limits as unconstitutional. Therefore,
Justice Breyer’s opinion concluded, given Buckley’s continued authority, the Court must likewise ²¹⁰
strike down Vermont’s expenditure limits as violating the First Amendment.

This section analyzes Supreme Court opinions decided subsequent to Buckley in which the Court
evaluated the constitutionality of disclosure requirements. The first line of cases clarifies the
scope of Buckley’s general rule, upholding liberal disclosure requirements. In Buckley v. ²¹¹
American Constitutional Law Foundation (ACLF), the Court struck down a regulation
prescribing, among other things, “payee” disclosure in connection with a ballot initiative. ²¹²
Moreover, in Brown v. Socialist Workers ‘74 Campaign Committee, the Court struck down a
state disclosure requirement as applied to a minority party that had historically been the object of
harassment and discrimination in the public and private sectors. In the second regulatory context, ²¹³
the Court in Federal Election Commission v. Akins was presented with the question of whether

²⁰⁶^S^{ee i}^d^.^a^t²^37-^38.
²⁰⁷^S^{ee i}^d^.^a^t²^45.
²⁰⁸^Id^.
²⁰⁹^S^{ee i}^d^.^T^h^e^B^r^ey^e^r^opini^on^no^te^s^tha^tⁱⁿ^B^u^ckl^ey,^t^h^{e Co}^u^r^t^ob^served^t^h^at^“Coⁿ^g^{ress w}^a^{s t}^r^yⁱⁿ^g^t^o^‘f^r^{ee can}^dⁱ^d^a^t^e^s
^f^r^o^m^the^rⁱ^g^o^r^s^of^f^undr^aⁱ^sⁱ^ng^.’^”^Id^.⁽^c^iti^ng^B^u^c^k^ley^v^.^Va^le^o,⁴²⁴^U^.^{S. 1}^,⁹¹⁽¹⁹⁷⁶⁾⁾^.
²¹⁰^S^{ee i}^d^.^a^t²^46.
²¹¹⁵²^{5 U}^.^S^.¹⁸²⁽¹⁹⁹⁹⁾^.
²¹²⁴⁵^{9 U}^.^S^.⁸⁷⁽¹⁹⁸²⁾^.
²¹³⁵²^{4 U}^.^S^.¹¹⁽¹⁹⁹⁸⁾^.

certain “political committees,” without the primary purpose of electing candidates, must
nonetheless disclose under FECA. The Court, however, did not issue a holding on this issue.
Reviewing a First Amendment privacy of association and belief claim, the Supreme Court in ²¹⁴
Buckley v. American Constitutional Law Foundation (ACLF) examined the facial validity of a
Colorado ballot-initiative statute requiring initiative-sponsors to provide “detailed, monthly ²¹⁵
disclosures” of the name, address, and amount paid and owed to their petition-circulators.
Colorado affords its citizens many “law-making” opportunities by placing initiatives on election ²¹⁶
ballots for public ratification. A non-profit organization founded to promote the tradition of
“direct democracy” challenged the facial validity of the state’s statute regulating the initiative-
petition process, alleging, inter alia, that the regulation’s disclosure requirement burdened ²¹⁷
citizens’ associational and speech interests. Colorado did not dispute that the regulation ²¹⁸
burdened expressive activity, but asserted regulatory interests in disseminating information ²¹⁹
concerning the distribution of capital tied to initiative campaigns. Colorado asserted that the
regulation promotes “informed public decision-making,” and deters actual and perceived ²²⁰
corruption.
Unimpressed with Colorado’s interests, the ACLF Court upheld the lower court’s decision,²²¹
finding the disclosure requirement unconstitutional. Under Buckley, the Court determined that
“exacting scrutiny” is necessary where, as here, a regulation compels the disclosure of campaign ²²²
related payments. After noting the state’s interest in regulation, the Court examined the fit ²²³
between the proposed statutory remedy and its requirements. As the lower court did not strike

²¹⁴⁵²^{5 U}^.^S^.¹⁸²⁽¹⁹⁹⁹⁾^.
²¹⁵^S^{ee i}^d^.^a^t²^01.
²¹⁶See id. at 186. In addition to “disclosure,” the statute limited petition circulation to six
months and required that petition-circulators be at least eighteen years old, be registered
to vote, wear identification badges indicating their status as “volunteer” or “paid,” and
attach a signed affidavit to each petition stating that they have read and understood the
laws governing petition-circulation. See id. at 188-189. The Court, however, only
reviewed the constitutionality of the voting registration, badge, and disclosure
requirements. See id. at 186.
²¹⁷See id. at 201-202.
²¹⁸^S^{ee i}^d^.
²¹⁹^S^{ee i}^d^.^a^t²^02.
²²⁰^S^{ee i}^d^.
²²¹^T^h^e^low^e^{r c}^{ourt inv}^a^lida^t^e^d^th^e^di^scl^o^su^{re req}^uⁱ^r^em^en^t^“oⁿ^l^yⁱⁿ^so^{far as i}^t^co^m^p^el^{s d}ⁱ^scl^o^su^{re o}^fⁱⁿ^f^o^rmatⁱ^oⁿ^sp^eci^fⁱ^c
^t^o^each^p^aⁱ^d^con^t^ri^bu^t^o^r,ⁱⁿ^p^a^rtⁱ^c^u^l^ar,^t^h^{e ci}^rcu^l^at^o^r^s’ⁿ^a^m^e^{s an}^d^ad^d^r^{esses an}^d^t^h^{e t}^o^t^a^l^am^{ount pa}ⁱ^d^to^each
^ci^rcu^l^at^o^r^.^”^Id^.^a^t²⁰¹^(c^iting^A^m^eric^aⁿ^Cons^ti^tuti^ona^l^L^a^w^Foun^da^tⁱ^{on v}^.^Me^y^e^{r, 120 F.}^3d¹⁰⁹²^,¹¹⁰⁴^-1¹⁰^{5 (1}⁹⁹^7)).
²²²^S^{ee i}^d^.^(c^iting^Buc^k^le^y^,^{424 U}^.^S.^a^t^64-^65).^By^re^quiring^pr^op^oneⁿ^t^s^{to i}^d^eⁿ^tif^y^pa^{id c}ⁱ^rc^ula^t^ors^by^nam^e^{, it w}^ould
^de^c^r^e^a^s^e^the^s^upply^of^thos^e^w^illing^to^be^cⁱ^rc^ula^t^ors^,^the^r^e^b^y^“^c^h^illing^”^c^o^re^po^litic^a^l^s^p^eech^.^Se^e^A^C^L^F^{, 525}^U^.^S.^a^t
²¹²⁽^T^hom^a^s^{, J}^.^c^onc^ur^rⁱ^ng⁾^.
²²³^S^{ee A}^C^L^F^,⁵^{25 U}^.^S.²⁰^2.

down the regulation in toto, but upheld the state’s requirements for payor disclosure, the
electorate had access to information about who proposed an initiative and who funded the ²²⁴
circulation of the initiative. The added “informational” benefit of requiring payee disclosure ²²⁵
was not supported by the record and would be de minimis at best, held the Court. The Court ²²⁶
further noted that, as Meyer v. Grant demonstrates, the risk of quid pro quo corruption, while
common in candidate elections, is not as great in ballot initiatives because there is no corrupting ²²⁷
object present, especially at the time of petition. Ergo, the Court held that while compelling
state interests motivated Colorado’s regulatory régime, the link between “payee” disclosures and ²²⁸
the state’s interests was too tenuous to warrant First Amendment infringement.
In Brown v. Socialist Workers ‘74 Campaign Committee,²²⁹ the Supreme Court considered
whether a state disclosure requirement was constitutionally applied, under the Fourteenth
Amendment’s liberty interest in free speech and association, to a minority political party that
historically had been the object of harassment and discrimination in the public and private
sectors. The Court reviewed a state disclosure law requiring candidates to report the names and ²³⁰
addresses of contributors and recipients of campaign funds. The principal plaintiff, a small
political party operating in the socialist tradition, sought and obtained a restraining order against
enforcement of the requirement and challenged the constitutionality of the statute as applied to its ²³¹
fundraising and expenditure activities. Agreeing with the plaintiff, the Court upheld the
constitutional challenge.
This was a fact intensive holding. The Brown Court affirmed Buckley’s prohibition on compelled
disclosures where contributors would be subject to a reasonable probability of threats,
harassment, or reprisals by virtue of their support of a currently and historically suspect political ²³²²³³
organization. The Court extended Buckley to protect recipients of campaign contributions.
Affording the plaintiff “sufficient flexibility” in the proof of injury, the Court found “substantial
evidence” to support the contention that compliance with the disclosure requirement would
subject both contributors and recipients of campaign funds to the risk of threats, harassment, or ²³⁴
reprisals. Plaintiff’s showing of current hostility by government and private parties included
threatening phone calls, hate mail, burning of party literature, dismissal from employment due to
member’s political affiliation, destruction of the membership’s property, harassment of the party’s ²³⁵
candidate, and the firing of gunshots at the party’s offices. Plaintiff also developed a factual ²³⁶
record of historic discrimination and hostility against the party and its membership. From this

²²⁴^S^{ee i}^d^.^a^t²^03.
²²⁵^S^{ee i}^d^.
²²⁶⁴⁸^{6 U.S}^.⁴¹⁴⁽¹⁹⁸^{8) (h}^ol^ding^a^Colora^d^o^sta^t^u^t^e^m^a^kⁱ^ng^{it a}^f^e^lony^{to pa}^y^f^o^{r c}ⁱ^rc^ula^{tion of}ⁱⁿ^itia^tiv^e^pe^titio^{ns t}^o
^ab^ri^d^g^{e p}^o^lⁱ^tⁱ^cal^sp^eechⁱⁿ^vi^o^l^atⁱ^oⁿ^o^f^t^h^{e F}ⁱ^rst^aⁿ^d^F^o^u^r^t^een^t^h^Amen^d^m^en^t^s^.⁾
²²⁷^Se^e^A^C^L^F^{, 52}^{5 U}^.^S^.^a^t²⁰³⁽^q^uot^ing^Me^y^e^r^,^{486 U}^.^S^.^a^t⁴²⁷⁾⁽^“^T^h^e^rⁱ^s^k^of^f^r^a^{ud or}^c^o^r^r^up^tio^n,^or^t^h^e^a^ppe^a^r^aⁿ^c^e
^the^r^e^o^f^,^{is m}^o^re^re^m^o^te^a^t^the^pe^ti^tion^sta^g^e^of^aⁿ^initia^tiv^e^thaⁿ^a^t^t^h^e^tim^e^of^ba^lloting^.^”⁾
²²⁸^Se^e^A^C^L^F^{, 52}^{5 U}^.^S^.^a^t²⁰⁴^.
²²⁹⁴⁷^{9 U}^.^S^.⁸⁷⁽¹⁹⁸²⁾^.
²³⁰^Se^e^id.^at⁸⁹^.
²³¹^S^{ee i}^d^.^a^t⁸⁸^.
²³²^S^{ee i}^d^.^a^t⁹³⁽^c^iti^ng^B^u^c^k^ley^,⁴²⁴^U^.^{S. a}^t⁷⁴⁾^.
²³³^S^{ee i}^d^.^a^t⁹⁷^,^98.
²³⁴^S^{ee i}^d^.^a^t¹^01-¹⁰^2.
²³⁵^S^{ee i}^d^.^a^t⁹⁹^.
²³⁶^S^{ee i}^d^.

expansive record, the Court found that the plaintiffs established a “reasonable probability” that ²³⁷
acts of discrimination, threats, reprisals, and hostility would continue in the future. Therefore,
the Court held that the disclosure requirement was unconstitutional as applied to the plaintiffs’ ²³⁸
political committees.
In Federal Election Commission (FEC) v. Akins,²³⁹ the Supreme Court did not issue a holding on
whether “an organization that otherwise satisfies the [FECA’s] definition of ‘political committee,’
and thus is subject to its disclosure requirements, nonetheless falls outside that definition because ²⁴⁰
‘its major purpose’ is not ‘the nomination or election of candidates.’” However, the Court
reiterated that “political committees,” for the purposes of FECA, refer to organizations under the
“control of a candidate” or with the major purpose of nominating or electing a candidate to
political office.
In McIntyre v. Ohio Elections Commission,²⁴¹ the Supreme Court further defined the universe of
permissible disclosure requirements when it struck down an Ohio election law, which prohibited
the distribution of anonymous campaign literature and required attribution disclosure of the name
of the literature’s author on all distributed campaign material. McIntyre arose in relation to a
school tax levy, where a parent published and distributed anonymous campaign leaflets opposing ²⁴²
the tax measure. The Court held that the statute violated the parent’s liberty interest in free ²⁴³
speech under the First Amendment as incorporated by the Fourteenth Amendment.
As the statute burdened the parent’s First Amendment interest in anonymous pamphleteering—
“an honorable tradition of advocacy and dissent” in U.S. political history—the Court applied ²⁴⁴
exacting scrutiny to the regulation. The Court construed the First Amendment interest in
anonymity as “a shield from the tyranny of the majority. . . . [exemplifying] the purpose behind
the Bill of Rights and of the First Amendment in particular, [which protects] unpopular
individuals from retaliation and their ideas from suppression at the hand of an intolerant ²⁴⁵
society.” The Court recalled, for example, that the Federalist Papers were published under ²⁴⁶
fictitious names. Balanced against the parent’s interests in anonymous publishing, the Court
acknowledged Ohio’s interest in preventing the dissemination of fraudulent and libelous
statements and in providing voters with information on which to evaluate the message’s worth.
However, the Court found that the state’s interests were not served by a ban on anonymous

²³⁷^S^{ee i}^d^.^a^t¹^00.
²³⁸^S^{ee i}^d^.^a^t¹^02.
²³⁹⁵²^{4 U}^.^S^.¹¹⁽¹⁹⁹⁸⁾^.
²⁴⁰^S^{ee i}^d^.^a^t¹⁴^.
²⁴¹⁵¹^{4 U}^.^S^.³³⁴⁽¹⁹⁹⁵⁾^.
²⁴²^S^{ee i}^d^.^a^t³^36.
²⁴³^S^{ee i}^d^.^a^t³^57.
²⁴⁴^Id^.
²⁴⁵^Id^.^a^t³⁴^7.
²⁴⁶^S^{ee i}^d^.

publishing because it had a number of regulations designed to prevent fraud and libel and because
a person’s name has little significance to evaluating the normative weight of a speaker’s ²⁴⁷
message. Thus, the Court held that the statute was not narrowly tailored to serve its regulatory
interests and therefore, struck it down.
The McIntyre Court specifically found that neither Bellotti nor Buckley were controlling in the
McIntyre case: Bellotti concerned the scope of First Amendment protection afforded to
corporations and the relevant portion of the Buckley opinion concerned mandatory disclosure of ²⁴⁸
campaign expenditures. Neither case involved a prohibition of anonymous campaign literature.
In Buckley, the Court noted, it had stressed the importance of providing the electorate with
information regarding the origin of campaign funds and how candidates spend those funds, but
that such information had no relevance to the kind of “independent activity” in the case of
McIntyre. “Required disclosures about the level of financial support a candidate has received
from various sources are supported by an interest in avoiding the appearance of corruption that ²⁴⁹
has no application in this case,” the Court stated. Moreover, the Court found that independent ²⁵⁰
expenditure disclosure above a certain threshold, which the Court upheld in Buckley, although
clearly impeding First Amendment activity, is a “far cry from compelled self-identification on all
election-related writings.” An election related document, particularly a leaflet, is often a
personally crafted statement of a political viewpoint and as such, compelled identification is
particularly intrusive, according to the Court. In contrast, the Court found, expenditure disclosure,
reveals far less information; that is, “even though money may ‘talk,’ its speech is less specific,
less personal, and less provocative than a handbill—and as a result, when money supports an ²⁵¹
unpopular viewpoint it is less likely to precipitate retaliation.”
Further distinguishing Buckley, the McIntyre Court found that not only is a prohibition on
anonymous campaign literature more intrusive than the disclosure requirements upheld in ²⁵²
Buckley, but it rests on “different and less powerful state interests.” The Federal Election
Campaign Act (FECA), at issue in Buckley, regulates only candidate elections, not referenda or
other issue-based elections, and the Buckley Court had construed “independent expenditures” to
only encompass those expenditures that “expressly advocate the election or defeat of a clearly ²⁵³
identified candidate.” Unlike candidate elections, where the government can identify a
compelling governmental interest of avoiding quid pro quo candidate corruption, issue based
elections do not present such a risk and hence, the Court ruled, the government cannot justify ²⁵⁴
such an intrusion on free speech.

²⁴⁷^S^{ee i}^d^.^a^t³^48,³^49.
²⁴⁸^Id^.^a^t³⁵^3.
²⁴⁹^Id^.^a^t³⁵^4.
²⁵⁰^Id^.^a^t³⁵^{5 (}^c^iti^ng^B^u^c^k^le^y^,^{424 U}^.^{S. a}^t^75-⁷⁶⁾^.^Iⁿ^B^u^ckl^ey^{, the}^Su^pr^em^e^C^our^{t ha}^d^u^phe^l^d^a^r^e^qu^ir^e^m^eⁿ^{t tha}^t
^inde^pe^nde^nt^e^x^pe^ndit^u^r^e^s^a^bov^e^a^c^e^r^ta^{in thr}^e^s^h^old^be^r^e^p^o^r^t^e^d^{to t}^h^e^FEC^.
²⁵¹^Id^.
²⁵²^Id^.^a^t³⁵^6.
²⁵³^Id^.⁽^q^u^o^ti^ng^B^u^c^k^ley^,⁴²⁴^U^.^{S. a}^t^80.
²⁵⁴^S^{ee i}^d^.

In its most comprehensive campaign finance ruling since Buckley v. Valeo, the Supreme Court in ²⁵⁵
its 2003 decision, McConnell v. FEC, upheld against facial constitutional challenges key ²⁵⁶
portions of the Bipartisan Campaign Reform Act of 2002 (BCRA), also known as the McCain-
Feingold or Shays-Meehan campaign finance reform law. In McConnell, a 5-to-4 majority of the
Court upheld restrictions on the raising and spending of previously unregulated political party
soft money and a prohibition on corporations and labor unions using treasury funds to finance
“electioneering communications,” requiring that such ads may only be paid for with corporate
and labor union political action committee (PAC) funds. The Court invalidated BCRA’s
requirement that parties choose between making independent expenditures or coordinated
expenditures on behalf of a candidate and its prohibition on minors age 17 and under making
campaign contributions.
By a 5-to-4 vote, the McConnell Court upheld two critical BCRA provisions, Titles I and II,
against facial constitutional challenges. In the majority opinion, coauthored by Justices Stevens
and O’Connor and joined by Justices Souter, Ginsburg, and Breyer, the Court upheld the limits on
raising and spending previously unregulated political party soft money (Title I), and the
prohibition on corporations and labor unions using treasury funds—which is unregulated soft
money—to finance directly electioneering communications (Title II).
In upholding BCRA’s “two principal, complementary features,” the Court readily acknowledged
that it is under “no illusion that BCRA will be the last congressional statement on the matter” of
money in politics. The Court observed, “money, like water, will always find an outlet.” Hence,
campaign finance issues that will inevitably arise and the corresponding legislative responses ²⁵⁷
from Congress “are concerns for another day.”
Title I of BCRA prohibits national party committees and their agents from soliciting, receiving, ²⁵⁸
directing, or spending any soft money. As the Court noted, Title I takes the national parties “out ²⁵⁹
of the soft-money business.” In addition, Title I prohibits state and local party committees from
using soft money for activities that affect federal elections; prohibits parties from soliciting for
and donating funds to tax-exempt organizations that spend money in connection with federal
elections; prohibits federal candidates and officeholders from receiving, spending, or soliciting

²⁵⁵⁵⁴^{0 U}^.^S^.⁹³⁽²⁰⁰³⁾^.^For^f^u^r^t^he^r^dⁱ^s^c^us^sⁱ^on^of^this^de^cⁱ^sⁱ^oⁿ^,^see^C^R^{S R}^e^por^t^R^L³²²⁴⁵^,^C^a^m^pai^gn^Fi^nanc^e^L^a^w^:^A
^Le^gal^An^aly^s^is^of^the^S^upr^e^m^e^C^o^ur^{t Ru}^lin^{g i}ⁿ^M^c^C^oⁿⁿ^e^{ll v}^.^FEC^,^by^L^.^P^a^ig^e^W^h^ita^k^e^r.
²⁵⁶^P^.^L^.¹⁰^7-¹⁵⁵^.^T^h^e^Bⁱ^pa^r^tis^aⁿ^C^a^m^p^aⁱ^gⁿ^R^e^f^o^r^m^A^c^{t of}^{2002 (}^B^C^R^A⁾^w^a^s^the^fⁱ^r^s^t^m^a^jor^ov^e^r^ha^ul^of^f^e^de^r^a^l
^ca^m^p^ai^gn^fⁱⁿ^aⁿ^{ce l}^a^w^s^siⁿ^{ce t}^h^{e e}ⁿ^act^men^t^o^f^t^h^{e F}^e^d^e^ral^E^l^ectⁱ^oⁿ^Ca^m^p^ai^gn^Act^o^f¹⁹⁷¹^.
²⁵⁷^Id^.^a^t⁷⁰^6.
²⁵⁸^{2 U}^.^S^.^C^.^{§ 4}⁴¹ⁱ⁽^a⁾^.
²⁵⁹^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁶^54.

soft money in connection with federal elections and restricts their ability to do so in connection
with state and local elections; and prevents circumvention of the restrictions on national, state,
and local party committees by prohibiting state and local candidates from raising and spending
soft money to fund advertisements and other public communications that promote or attack ²⁶⁰
federal candidates. Plaintiffs challenged Title I based on the First Amendment as well as Art. I,
§ 4 of the U.S. Constitution, principles of federalism, and the equal protection component of the ^th
Due Process Clause of the 14 Amendment. The Court upheld the constitutionality of all
provisions in Title I, finding that its provisions satisfy the First Amendment test applicable to
limits on campaign contributions: they are “closely drawn” to effect the “sufficiently important
interest” of preventing corruption and the appearance of corruption.
Rejecting plaintiff’s contention that the BCRA restrictions on campaign contributions must be
subject to strict scrutiny in evaluating the constitutionality of Title I, the Court applied the less
rigorous standard of review—“closely drawn” scrutiny. Citing its landmark 1976 decision
Buckley v. Valeo and its progeny, the Court noted that it has long subjected restrictions on
campaign expenditures to closer scrutiny than limits on contributions in view of the
comparatively “marginal restriction upon the contributor’s ability to engage in free ²⁶¹
communication” that contribution limits entail. The Court observed that its treatment of
contribution limits is also warranted by the important interests that underlie such restrictions, i.e.
preventing both actual corruption threatened by large dollar contributions as well as the erosion of ²⁶²
public confidence in the electoral process resulting from the appearance of corruption. The
Court determined that the lesser standard shows “proper deference to Congress’ ability to weigh ²⁶³
competing constitutional interests in an area in which it enjoys particular expertise.” Finally,
the Court recognized that during its lengthy consideration of BCRA, Congress properly relied on
its authority to regulate in this area, and hence, considerations of stare decisis as well as respect
for the legislative branch of government provided additional “powerful reasons” for adhering to ²⁶⁴
the treatment of contribution limits that the Court has consistently followed since 1976.
Responding to plaintiffs’ argument that many of the provisions in Title I restrict not only
contributions but also the spending and solicitation of funds that were raised outside of FECA’s
contribution limits, the Court determined that it is “irrelevant” that Congress chose to regulate
contributions “on the demand rather than the supply side.” Indeed, the relevant inquiry is whether
its mechanism to implement a contribution limit or to prevent circumvention of that limit burdens
speech in a way that a direct restriction on a contribution would not. The Court concluded that
Title I only burdens speech to the extent of a contribution limit: it merely limits the source and
individual amount of donations. Simply because Title I accomplishes its goals by prohibiting the ²⁶⁵
spending of soft money does not render it tantamount to an expenditure limitation.
In his dissent, Justice Kennedy criticized the majority opinion for ignoring established
constitutional bounds and upholding a campaign finance statute that does not regulate actual or

²⁶⁰^{2 U}^.^S^.^C^.^§§⁴⁴¹ⁱ⁽^b⁾^,⁴⁴¹ⁱ⁽^d⁾^,⁴⁴¹ⁱ⁽^e⁾^,⁴⁴¹ⁱ⁽^f⁾^.
²⁶¹^M^c^C^oⁿⁿ^el^l^,¹²⁴^S.^C^t^.^{at 64}⁷⁽^q^uo^tⁱⁿ^{g FE}^C^v.^B^eau^m^oⁿ^t^,¹²^{3 S}^.^C^t^.²²⁰⁰⁽²⁰⁰³⁾⁾^.
²⁶²^Id^.^a^t⁶⁵^{6 (}^q^u^o^ting^F^E^C^v^.^N^a^tio^na^{l R}ⁱ^g^h^{t t}^o^W^o^r^k^{, 4}⁵⁹^U^.^S.¹⁹^7,²⁰⁸⁽¹⁹⁸²⁾⁾^.
²⁶³^Id^.^a^t⁶⁵^6-⁵⁷^{. T}^h^e^C^o^ur^{t f}^u^r^t^he^r^note^d^tha^t^“^c^l^os^e^l^y^dr^a^w^n”^s^c^r^u^tiny^pr^ov^ide^s^C^ong^r^e^s^s^w^{ith s}^u^f^fⁱ^cⁱ^eⁿ^{t r}^o^om^to
^aⁿ^tic^ipa^t^e^aⁿ^d^r^e^s^p^o^nd^{to c}ⁱ^r^c^um^v^e^ntio^{n of}^the^f^e^de^r^a^{l e}^l^e^c^{tion r}^e^g^u^l^a^t^or^y^r^e^gⁱ^m^e^,^w^h^ic^{h is}^de^sⁱ^gⁿ^e^d^t^o^pr^ote^c^t^the
^inte^g^r^ity^of^the^politic^a^l^pr^oc^e^ss.^Id^.
²⁶⁴^Id^.
²⁶⁵^Id^.^a^t⁶⁵^7-⁵⁸^.

apparent quid pro quo arrangements.²⁶⁶ According to Justice Kennedy, Buckley clearly established
that campaign finance regulation that restricts speech, without requiring proof of specific corrupt
activity, can only withstand constitutional challenge if it regulates conduct that presents a
“demonstrable quid pro quo danger.” The McConnell Court, however, interpreted the anti-
corruption rationale to allow regulation of not only “actual or apparent quid pro quo
arrangements,” but also of “any conduct that wins goodwill from or influences a Member of
Congress.” Justice Kennedy further maintained that the standard established in Buckley defined
undue influence to include the existence of a quid pro quo involving an officeholder, while the
McConnell Court, in contrast, extended the Buckley standard of undue influence to encompass
mere access to an officeholder. Justice Kennedy maintained that the Court, by legally equating
mere access to officeholders to actual or apparent corruption of officeholders, “sweeps away all ²⁶⁷
protections for speech that lie in its path.”
Unpersuaded by Justice Kennedy’s dissenting position that Congress’s regulatory interest is
limited to the prevention of actual or apparent quid pro quo corruption “inherent in” contributions
made to a candidate, the Court found that such a “crabbed view of corruption” and specifically
the appearance of corruption “ignores precedent, common sense, and the realities of political ²⁶⁸
fundraising exposed by the record in this litigation.” According to the Court, equally
problematic as classic quid pro quo corruption, is the danger that officeholders running for re-
election will make legislative decisions in accordance with the wishes of large financial
contributors, instead of deciding issues based on the merits or constituent interests. Since such
corruption is neither easily detected nor practical to criminalize, the Court reasoned, Title I offers ²⁶⁹
the best means of prevention, i.e., identifying and eliminating the temptation.
Title II of BCRA created a new term in FECA, “electioneering communication,” which is defined
as any broadcast, cable, or satellite communication that “refers” to a clearly identified federal
candidate, is made within 60 days of a general election or 30 days of a primary, and if it is a ²⁷⁰
House or Senate election, is targeted to the relevant electorate. Title II prohibits corporations
and labor unions from using their general treasury funds (and any persons using funds donated by
a corporation or labor union) to finance electioneering communications. Instead, the statute
requires that such ads may only be paid for with corporate and labor union political action ²⁷¹
committee (PAC) regulated hard money. The Court upheld the constitutionality of this
provision.
In Buckley v. Valeo, the Court construed FECA’s disclosure and reporting requirements, as well as
its expenditure limitations, to apply only to funds used for communications that contain express

²⁶⁶^Id^.^a^t⁷⁴^2-⁵⁹⁽^K^eⁿ^ne^dy^{, J}^{., c}^onc^u^r^rⁱ^ng^{, in}^pa^r^t^,^dis^s^e^ntiⁿ^g^,ⁱⁿ^pa^r^t⁾⁽^j^oine^{d by}^C^h^ie^f^J^u^s^tic^e^R^e^hnqu^is^t^,^J^u^s^tic^e^s^Sc^a^lia
^(e^x^c^e^p^{t to the}^e^x^te^{nt it}^u^p^h^o^lds^F^E^CA^{§ 323(e}⁾^a^{nd BCRA}^§²⁰²⁾^a^{nd T}^hom^a^s^(only^w^{ith re}^s^p^e^c^t^to^BCRA^{§ 213}^).
²⁶⁷^Id^.^a^t⁷⁴^6.
²⁶⁸^Id^.^a^t⁶⁶^5.
²⁶⁹^Id^.^a^t⁶⁶^6.
²⁷⁰²^U.S^.^C.^§⁴³⁴⁽^f⁾⁽³^)(A^{)(i). BCRA}^d^e^fⁱⁿ^e^{s “[}^t^]^arg^e^ted^to^t^h^{e relev}^aⁿ^t^electo^r^{ate” as a co}^mm^uⁿⁱ^catioⁿ^th^{at can}^b^e
^recei^ved^b^y⁵⁰^,⁰⁰⁰^o^r^m^o^{re p}^e^rson^{s i}ⁿ^{a st}^at^e^o^r^con^g^ressi^oⁿ^a^l^dⁱ^st^rⁱ^ct^w^h^{ere t}^h^{e S}^eⁿ^a^t^e^o^r^Hou^s^{e el}^ectⁱ^oⁿ^,^resp^ectⁱ^v^el^y^,
^is^oc^c^u^r^rⁱ^ng^.^{2 U}^.^S^.^C^.^{§ 4}³⁴⁽^f⁾⁽³⁾⁽^C⁾^.
²⁷¹^{2 U}^.^S^.^C^.^{§ 4}⁴¹^b⁽^b⁾^.

advocacy of the election or defeat of a clearly identified candidate.²⁷² After Buckley, many lower
courts had interpreted the decision to stand for the proposition that communications must contain
express terms of advocacy, such as “vote for” or “vote against,” in order for regulation of such
communications to pass constitutional muster under the First Amendment. Absent express
advocacy, lower courts had held, a communication is considered issue advocacy, which is
protected by the First Amendment and therefore may not be regulated.
Effectively overturning such lower court rulings, the Supreme Court in McConnell held that
neither the First Amendment nor Buckley prohibits BCRA’s regulation of “electioneering
communications,” even though electioneering communications, by definition, do not necessarily
contain express advocacy. The Court determined that when the Buckley Court distinguished
between express and issue advocacy it did so as a matter of statutory interpretation, not
constitutional command. Moreover, the Court announced that by narrowly reading FECA
provisions in Buckley to avoid problems of vagueness and overbreadth, it “did not suggest that a
statute that was neither vague nor overbroad would be required to toe the same express advocacy ²⁷³
line.” “[T]he presence or absence of magic words cannot meaningfully distinguish ²⁷⁴
electioneering speech from a true issue ad,” the Court observed.
In response to plaintiffs maintaining that the justifications supporting the regulation of express
advocacy do not apply to communications covered by the definition of “electioneering
communication,” the Court found that the argument failed to the extent that issue ads broadcast
during the 30- and 60-day periods prior to primary and general elections are the “functional ²⁷⁵
equivalent” of express advocacy. The Court reasoned that the justifications for the regulation of
express advocacy “apply equally” to ads broadcast during those periods if the ads have the intent
and effect of influencing elections. Based on the evidentiary record, the Court determined that the ²⁷⁶
vast majority of such ads “clearly had such a purpose.”
While Title II prohibits corporations and labor unions from using their general treasury funds for
electioneering communications, the Court observed that they are still free to use separate
segregated funds (PACs) to run such ads. Therefore, the Court concluded that it is erroneous to
view this provision of BCRA as a “complete ban” on expression rather than simply a ²⁷⁷
regulation. Further, the Court found that the regulation is not overbroad because the “vast
majority” of ads that are broadcast within the electioneering communication time period (60 days ²⁷⁸
before a general election and 30 days before a primary) have an electioneering purpose. The
Court also rejected plaintiffs’ assertion that the segregated fund requirement for electioneering
communications is under-inclusive because it only applies to broadcast advertisements and not
print or internet communications. Congress is permitted, the Court determined, to take one step at
a time to address the problems it identifies as acute. With Title II of BCRA, the Court observed,

²⁷²^Buc^k^le^y^,⁴²⁴^U^.^{S. a}^t⁸⁰^.
²⁷³^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁶^88.
²⁷⁴^Id^.^a^t⁶⁸^9.
²⁷⁵^Id^.^a^t⁶⁹^6.
²⁷⁶^Id^.⁽^c^iti^ng²⁵¹^F.^Su^pp.²^d¹⁷⁶^,⁵^73-⁵⁷^{8 (}^D^.D^.C^.)⁽^K^olla^r^-^K^ote^lly^{, J}^.⁾^,⁸^26-⁸²^{7 (}^L^e^{on, J}^.⁾⁾^.
²⁷⁷^Id^.^a^t⁶⁹^5.
²⁷⁸^Id^.^a^t⁶⁹^6.

Congress chose to address the problem of corporations and unions using soft money to finance a ²⁷⁹
“virtual torrent of televised election-related ads” in recent campaigns.
In his dissent, Justice Kennedy criticized the majority for permitting “a new and serious intrusion
on speech” by upholding the prohibition on corporations and unions using general treasury funds
to finance electioneering communications. Finding that this BCRA provision “silences political
speech central to the civic discourse that sustains and informs our democratic processes,” the
dissent further noted that unions and corporations “now face severe criminal penalties for
broadcasting advocacy messages that ‘refer to a clearly identified candidate’ in an election ²⁸⁰
season.”
In upholding BCRA’s extension of the prohibition on using treasury funds for financing
electioneering communications to non-profit corporations, the McConnell Court found that even
though the statute does not expressly exempt organizations meeting the criteria established in its ²⁸¹
1986 decision in FEC v. Massachusetts Citizens for Life (MCFL), it is an insufficient reason to
invalidate the entire section. Since MCFL had been established Supreme Court precedent for
many years prior to enactment of BCRA, the Court assumed that when Congress drafted this
section of BCRA, it was well aware that this provision could not validly apply to MCFL-type ²⁸²
entities.
By an 8-to-1 vote, the Court upheld Section 311 of BCRA, which requires that general public
political ads that are “authorized” by a candidate clearly indicate that the candidate or the ²⁸³
candidate’s committee approved the communication. Rejecting plaintiffs’ assertion that this
provision is unconstitutional, the Court found that this provision “bears a sufficient relationship to
the important governmental interest of ‘shedding the light of publicity’ on campaign ²⁸⁴
financing.”

²⁷⁹^Id^.^a^t⁶⁹^7.
²⁸⁰^Id^.^a^t⁷⁶^{2 (}^K^eⁿ^ne^dy^{, J}^{., c}^onc^ur^rⁱ^ng^{, in}^pa^r^t^,^dis^s^e^ntiⁿ^g^,ⁱⁿ^pa^r^t⁾⁽^j^oⁱ^ne^d^by^C^h^ie^f^J^u^s^tic^e^R^e^hnquis^t^a^{nd J}^u^s^tic^e^s
^{Scalia (ex}^cep^{t to}^th^{e ex}^ten^t^it^u^p^h^o^ld^{s F}^E^CA^§³²³⁽^e)^an^d^BCRA^§²⁰²⁾^an^d^T^h^o^m^{as (o}ⁿ^l^y^w^ith^resp^{ect to}^BCRA^§
²¹³⁾⁾^.^W^h^ile^J^u^s^tic^e^K^eⁿⁿ^e^d^y^’^s^opini^on^s^e^r^v^e^d^a^s^the^pr^im^a^r^y^dis^s^e^{nt f}^o^r^the^mⁱ^nor^ity^{, in a}^s^e^pa^r^a^te^dⁱ^s^s^e^{nt, J}^u^s^tic^e
^S^calⁱ^a^w^r^o^t^e,^“[^t^]^hⁱ^{s i}^s^{a sad}^d^a^y^fo^{r t}^h^{e f}^r^eed^o^m^o^f^sp^eech^,^”^f^u^rt^h^e^{r co}^mmen^tⁱⁿ^{g t}^h^at^“^[ⁱ^]^f^t^h^{e Bi}^l^l^o^f^Ri^gh^t^s^h^a^d
ⁱⁿ^t^e^nd^ed^an^excep^tⁱ^oⁿ^t^o^t^h^{e f}^r^eed^o^m^o^f^sp^eechⁱⁿ^o^r^d^e^{r t}^o^co^m^b^at^t^hⁱ^s^m^a^lⁱ^gⁿ^p^r^o^c^lⁱ^vⁱ^t^y^o^f^t^h^{e o}^f^fⁱ^ce^h^o^l^d^e^{r t}^o^agree
^w^{ith thos}^e^w^{ho a}^g^r^e^e^w^{ith him}^,^{and t}^o^s^p^e^a^k^m^o^r^e^w^{ith his}^s^u^p^por^t^e^r^s^thaⁿ^hⁱ^s^o^p^p^one^nts^,^{it w}^oul^{d s}^u^r^e^ly^ha^v^e^sa^id
^so^.^”^Id^.^a^t⁷^20,⁷^26.
²⁸¹⁴⁷^{9 U}^.^S^.²³⁸⁽¹⁹⁸⁶⁾⁽^h^ol^ding^t^h^a^t^the^f^o^llowⁱ^ng^c^h^a^r^a^c^t^e^r^is^tic^s^e^x^em^{pt a}^c^o^r^por^a^tio^{n f}^r^om^r^e^g^u^la^{tion: (}¹⁾ⁱ^t^s
^org^a^niz^a^tiona^{l pur}^pose^is^pure^l^y^politic^a^{l; (}²^{) its s}^h^a^r^e^hol^de^{rs ha}^v^e^{no e}^c^o^nom^ic^inc^eⁿ^tiv^e^{in t}^h^e^org^a^niz^a^tion’s
^p^o^lit^{ical activ}^{ities; an}^d^,⁽³^{) it}^w^a^sⁿ^e^ith^{er f}^o^uⁿ^d^e^d^b^yⁿ^o^r^accep^{ts co}ⁿ^t^rib^u^ti^oⁿ^s^f^r^o^m^b^u^sⁱⁿ^{ess o}^r^g^aⁿⁱ^z^a^tioⁿ^s^o^r^lab^o^r
^uni^ons⁾^.
²⁸²^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁶^99.
²⁸³^{2 U}^.^S^.^C^.^{§ 4}⁴¹^d^.
²⁸⁴^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁷^10.

By a 5-to-4 vote, the Court invalidated BCRA’s requirement that political parties choose between ²⁸⁵
coordinated and independent expenditures after nominating a candidate, finding that it burdens ²⁸⁶
the right of parties to make unlimited independent expenditures. Specifically, Section 213 of ²⁸⁷
BCRA provides that, after a party nominates a candidate for federal office, it must choose
between two spending options. Under the first option, a party that makes any independent
expenditure is prohibited from making any coordinated expenditure under this section of law;
under the second option, a party that makes any coordinated expenditure under this section of
law—one that exceeds the ordinary $5,000 limit—cannot make any independent expenditure with
respect to the candidate. FECA, as amended by BCRA, defines “independent expenditure” to
mean an expenditure by a person “expressly advocating the election or defeat of a clearly ²⁸⁸
identified candidate” and that is not made in cooperation with such candidate.
According to the McConnell Court, the regulation presented by Section 213 of BCRA “is much
more limited than it initially appears.” A party that wants to spend more than $5,000 in
coordination with its nominee is limited to making only independent expenditures that contain the
magic words of express advocacy. Although the Court acknowledges that “while the category of
burdened speech is relatively small,” it is nonetheless entitled to protection under the First
Amendment. Furthermore, the Court determined that under Section 213, a party’s exercise of its
constitutionally protected right to engage in free speech results in the loss of a longstanding
valuable statutory benefit. Hence, to pass muster under the First Amendment, the provision “must
be supported by a meaningful governmental interest” and, the Court announced, the interest in ²⁸⁹
requiring parties to avoid the use of magic words does not suffice.
By a unanimous vote, the Court invalidated Section 318 of BCRA, which prohibited individuals ²⁹⁰
age 17 or younger from making contributions to candidates and political parties. Determining
that minors enjoy First Amendment protection and that contribution limits impinge on such
rights, the Court determined that the prohibition is not “closely drawn” to serve a “sufficiently ²⁹¹
important interest.”
In response to the government’s assertion that the prohibition protects against corruption by
conduit—that is, parents donating through their minor children to circumvent contribution
limits—the Court found “scant evidence” to support the existence of this type of evasion.
Furthermore, the Court postulated that such circumvention of contribution limits may be deterred
by the FECA provision prohibiting contributions in the name of another person and the knowing

²⁸⁵^{2 U}^.^S^.^C^.^{§ 3}¹⁵⁽^d)⁽⁴⁾^.
²⁸⁶^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁷^03.
²⁸⁷^{2 U}^.^S^.^C^.^{§ 3}¹⁵⁽^d)⁽⁴⁾^.
²⁸⁸^{2 U}^.^S^.^C^.^{§ 3}⁰¹⁽¹⁷⁾^.
²⁸⁹^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁷^02.
²⁹⁰^{2 U}^.^S^.^C^.^{§ 4}^41k^.
²⁹¹^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁷^11.

acceptance of contributions made in the name of another person.²⁹² Even assuming, arguendo,
that a sufficiently important interest could be provided in support of the prohibition, the Court
determined that it is over-inclusive. According to the Court, various states have found more-
tailored approaches to address this issue, for example, counting contributions by minors toward
the total permitted for a parent or family unit, imposing a lower cap on contributions by minors,
and prohibiting contributions by very young children. The Court, however, expressly declined to ²⁹³
decide whether any alternatives would pass muster.
By a unanimous vote, the Court determined that the challenges to Sections 304, 316, and 319 of
BCRA, also known as the “millionaire provisions,” were properly dismissed by the district court ²⁹⁴
due to lack of standing. The millionaire provisions, which therefore remain in effect, provide
for a series of staggered increases in otherwise applicable limits on contributions to candidates if ²⁹⁵
a candidate’s opponent spends a certain amount in personal funds on his or her own campaign.
A notable aspect of the Supreme Court’s ruling in McConnell v. FEC is the extent to which the
majority of the Court deferred to Congressional findings and used a pragmatic rationale in
upholding BCRA. According to the Court, the record before it was replete with perceived
problems in the campaign finance system, circumstances creating the appearance of corruption,
and Congress’s proposal to address these issues. As the Court remarked at one point, its decision
showed “proper deference” to Congress’s determinations “in an area in which it enjoys particular ²⁹⁶
expertise.” Furthermore, “Congress is fully entitled,” the Court observed, “to consider the real-²⁹⁷
world” as it determines how best to regulate in the political sphere.
Ruling 5 to 4, the Supreme Court in its 2007 decision Wisconsin Right to Life, Inc. v. FEC (WRTL ²⁹⁸
II) found that a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA), prohibiting
corporate or labor union treasury funds from being spent on advertisements broadcast within 30
days of a primary or 60 days of a general election, was unconstitutional as applied to ads that
Wisconsin Right to Life, Inc. sought to run. While not expressly overruling its 2003 ruling in
McConnell v. FEC, which upheld the BCRA provision against a First Amendment facial

²⁹²^Se^e^{2 U}^.^S.C^.^{§ 4}^41f^.
²⁹³^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁷^11.
²⁹⁴^Id^.
²⁹⁵^{2 U}^.^S^.^C^.^{§ 3}¹⁵⁽^a⁾^.
²⁹⁶^Mc^C^oⁿⁿ^e^ll,¹²^{4 S}^.^C^t^{. a}^t⁶^56-^57.
²⁹⁷^Id^.^a^t⁶⁸^6.
²⁹⁸¹²^{7 S}^.^C^t^.²⁶^{52 (}²⁰⁰⁷⁾^{. F}^o^r^f^u^r^t^h^e^r^dis^c^us^sⁱ^on^of^this^de^cⁱ^sⁱ^on^,^see^{CRS Rep}^o^r^t^RS2²⁶⁸⁷^,^T^h^e^Co^nst^ituti^on^ality^of
^Re^gul^atin^{g P}^o^litic^{al A}^d^v^e^r^tise^m^eⁿ^{ts: An}^An^aly^s^{is of}^Fe^de^ra^l^Ele^c^tⁱ^{on C}^o^mmission^v^.^Wⁱ^sc^onsin^Ri^gh^{t to}^Life^{, I}ⁿ^c^.^{, by}
^L^.^P^a^ig^e^W^h^ita^k^e^r.

challenge, the Court limited the law’s application. Specifically, it ruled that advertisements that
may reasonably be interpreted as something other than as an appeal to vote for or against a
specific candidate are not the functional equivalent of express advocacy, and therefore, cannot be
regulated.
Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)²⁹⁹ prohibits corporate or
labor union treasury funds from being spent for “electioneering communications.” BCRA defines
“electioneering communication” as any broadcast, cable, or satellite transmission made within 30
days of a primary or 60 days of a general election (sometimes referred to as the “blackout ³⁰⁰
periods”) that refers to a candidate for federal office and is targeted to the relevant electorate. In ³⁰¹
McConnell v. Federal Election Commission (FEC), the Supreme Court had upheld Section 203
of BCRA against a First Amendment facial challenge even though the provision regulates not
only campaign speech or “express advocacy,” (speech that expressly advocates the election or
defeat of a clearly identified candidate), but also “issue advocacy,” (speech that discusses public
policy issues, while also mentioning a candidate). Specifically, the Court determined that the ³⁰²
speech regulated by Section 203 was the “functional equivalent” of express advocacy.
In July 2004, Wisconsin Right to Life (WRTL), a corporation that accepts contributions from
other corporations, began broadcasting advertisements exhorting viewers to contact Senators
Feingold and Kohl to urge them to oppose a Senate filibuster to delay and block consideration of
federal judicial nominations. WRTL planned to run the ads throughout August 2004 and to
finance them with its general treasury funds, thereby running afoul of Section 203, as such ads
would have been broadcast within the 30 day period prior to the September 14, 2004, primary.
Anticipating that the ads would be illegal “electioneering communications,” but believing that
they nevertheless had a First Amendment right to broadcast them, WRTL filed suit against the
FEC, seeking declaratory and injunctive relief and alleging that Section 203’s prohibition was
unconstitutional as applied to the ads and any future ads that they might plan to run.
Just prior to the BCRA 30-day blackout period, a three-judge district court denied a preliminary
injunction, finding that McConnell v. FEC left no room for such an “as-applied” challenge.
Accordingly, WRTL did not broadcast its ads during the blackout period, and the district court
subsequently dismissed the complaint in an unpublished opinion. On appeal, in Wisconsin Right ³⁰³
to Life, Inc. v. FEC (WRTL I), the Supreme Court vacated the lower court judgment, finding
that by upholding Section 203 against a facial challenge in McConnell, “we did not purport to ³⁰⁴
resolve future as-applied challenges.” On remand, after permitting four Members of Congress
to intervene as defendants, the three-judge district court granted WRTL summary judgment, ³⁰⁵
determining that Section 203 was unconstitutional as applied to WRTL’s ads. It concluded that
the ads were genuine issue ads, not express advocacy or its “functional equivalent” under ³⁰⁶
McConnell, and held that no compelling interest justified their regulation. The FEC appealed.

²⁹⁹^P^.^L^.¹⁰^7-¹⁵⁵^.^T^h^is^la^w^is^a^l^s^o^k^now^{n a}^s^“^M^c^C^aⁱ^n-^Fe^ing^o^ld,”^r^e^f^e^r^rⁱ^ng^{to t}^h^e^pr^incⁱ^pa^l^Se^na^te^s^p^ons^or^s^of^the
^le^gⁱ^sla^tion.
³⁰⁰^Se^e²^U.^S.C.^§⁴⁴¹^b^(b⁾⁽²^).
³⁰¹⁵⁴^{0 U}^.^S^.⁹³⁽²⁰⁰³⁾^,^dis^c^us^s^e^d^s^u^pr^a.
³⁰²^Id^.^at²⁰⁴^-²⁰^5,²⁰^6.
³⁰³546 U.S. 410 (2006).
³⁰⁴^Id^.^a^t⁴¹^2.
³⁰⁵^Wⁱ^s^c^ons^{in R}ⁱ^g^h^t^{to L}ⁱ^f^e^{, I}ⁿ^c^.^v^.^Fe^de^r^a^{l Ele}^c^tion^C^o^m^m^is^sⁱ^{on, 4}⁶⁶^F.^Su^pp^{. 2}^d¹⁹^{5 (}^D^.D^.C^.²⁰⁰⁶⁾^.
³⁰⁶^Id^.^a^t²¹^0.

Affirming the lower court ruling, the Supreme Court in Wisconsin Right to Life, Inc. v. FEC ³⁰⁷
(WRTL II) determined that Section 203 of BCRA was unconstitutional as applied to the WRTL
ads, and that they should have been permissible to broadcast. In a plurality opinion, written by
Chief Justice Roberts, joined by Justice Alito—Justice Scalia wrote a separate concurrence, ³⁰⁸
joined by Justices Kennedy and Thomas—the Court announced that “[b]ecause WRTL’s ads
may reasonably be interpreted as something other than as an appeal to vote for or against a
specific candidate, we hold they are not the functional equivalent of express advocacy, and ³⁰⁹
therefore, fall outside the scope of McConnell’s holding.” In determining the threshold
question, as the Court found was required by McConnell, of whether the ads were the “functional
equivalent” of speech expressly advocating the election or defeat of a candidate for federal office
or genuine issue advocacy, the Court observed that it had long recognized that the practical
distinction between campaign advocacy and issue advocacy can often dissolve because
candidates, particularly incumbents, “are intimately tied to public issues involving legislative ³¹⁰
proposals and governmental actions.” Nonetheless, the Court stated, its jurisprudence in this
area requires it to make such a distinction, and “[i]n drawing that line, the First Amendment ³¹¹
requires ... err[ing] on the side of protecting political speech rather than suppressing it.”
The FEC argued that in view of the fact that McConnell had already held that Section 203 was
facially valid, WRTL—and not the government—should bear the burden of demonstrating that ³¹²
BCRA is unconstitutional as applied to its ads. Rejecting the FEC’s contention, the Court ³¹³
pointed out that Section 203 burdens political speech and is therefore subject to strict scrutiny.
Under strict scrutiny, the Court determined that the FEC—not the regulated community—had the
burden of proving that the application of Section 203 to WRTL’s ads furthered a compelling ³¹⁴
interest, and was narrowly tailored to achieve that interest. As it had already ruled in
McConnell that Section 203 “survives strict scrutiny to the extent it regulates express advocacy or
its functional equivalent,” the Court found that in order to prevail, the FEC needed to show that ³¹⁵
the WRTL ads it sought to regulate fell within that category. On the other hand, if the speech
that the FEC sought to regulate is not express advocacy or its functional equivalent, the Court
cautioned that the FEC’s task is “more formidable” because it must demonstrate that banning

³⁰⁷¹²^{7 S}^.^C^t^.²⁶^{52 (}²⁰⁰⁷⁾^.
³⁰⁸^In^{a con}^c^u^rren^ce,^Ju^stⁱ^{ce S}^calⁱ^a^f^o^uⁿ^d^t^h^at^t^h^e^a^tte^m^p^{t in the}^C^our^t^’^{s ruling}^t^o^disting^uⁱ^sh^McC^oⁿⁿ^ell^is
^“^unpe^r^s^ua^sⁱ^v^e^eⁿ^o^u^g^h^{, a}ⁿ^{d t}^h^e^c^h^aⁿ^g^e^{in the}^la^w^{it w}^o^r^k^s^is^s^ubs^ta^ntia^{l e}ⁿ^oug^h,^tha^t^s^e^v^e^{n J}^u^s^tic^e^s^..^{. ha}^vⁱ^ng^wⁱ^de^l^y
^div^e^rg^eⁿ^{t v}ⁱ^e^w^{s c}^onc^e^r^ning^the^c^onstit^uti^ona^lity^of^the^re^stric^tions^a^t^issue^,^a^g^re^e^tha^t^the^o^pⁱⁿ^io^{n e}^f^fe^c^tiv^e^l^y^ov^e^rrule^s
^M^c^C^onne^ll^w^itho^u^{t sa}^yⁱ^ng^so.”^Id^.^a^t²⁶⁸⁴^,^n.^{7 (}^S^c^a^lia^{, J}^.^c^onc^ur^rⁱ^ngⁱⁿ^pa^r^t^aⁿ^d^c^onc^ur^rⁱ^ngⁱⁿ^t^h^e^ju^dg^m^e^nt)^.
³⁰⁹^Id^.^a^t²⁶⁷⁰^.
³¹⁰^Id^.^a^t²⁶⁵⁹⁽^q^uotiⁿ^g^B^u^c^k^le^y^v^.^Va^le^o,⁴²^{4 U}^.^S.^1,^{42 (}¹⁹⁷⁶⁾⁾^.
³¹¹^Id^.
³¹²^S^{ee i}^d^.^at²⁶⁶³^-⁶⁴^.
³¹³^S^{ee i}^d^.^a^t²⁶⁶⁴⁽^c^iti^ng^Mc^C^oⁿⁿ^e^l^{l v}^.^FEC^,⁵⁴^{0 U}^.^S^.⁹³^,²⁰^{5 (}²⁰⁰³⁾^{; A}^u^s^{tin v}^.^Mic^h^ig^aⁿ^C^h^a^m^be^r^of^C^o^m^m^e^r^c^e^,⁴⁹⁴
^U^.^{S. 6}⁵²^,⁶⁵⁸⁽¹⁹⁹⁰⁾^{; F}^E^C^v^.^Ma^s^s^a^c^hus^e^tts^C^itiz^eⁿ^s^f^o^r^Lⁱ^f^e^{, I}ⁿ^c^{., 47}^{9 U}^.^S^.²³⁸^,²⁵²⁽¹⁹⁸⁶⁾^{; Fir}^s^t^N^a^{t. B}^a^nk^of
^B^o^s^t^on^v^.^B^e^llott^i,⁴³^{5 U}^.^S^.⁷⁶⁵^,⁷⁸⁶⁽¹⁹⁷⁸⁾^{; B}^u^c^k^ley^v^.^Va^le^{o, 4}²⁴^U^.^S.^1,⁴⁴^-⁴^{5 (}¹⁹⁷⁶⁾⁾^.
³¹⁴^Id^.^(fⁱⁿ^diⁿ^g^“^[^e]^s^p^eci^al^l^y^w^h^ere,^{as h}^e^re,^{a p}^r^ohⁱ^bⁱ^tⁱ^oⁿⁱ^s^dⁱ^rect^ed^a^t^sp^eechⁱ^t^s^el^f^,^an^d^t^h^{e sp}^eechⁱ^sⁱⁿ^tⁱ^m^at^el^y^rel^a^t^e^d
^{to t}^h^e^pr^oc^e^{ss of}^g^o^v^e^rning^{... ‘th}^e^burde^{n is}^on^the^g^o^v^e^rnm^e^{nt to}^show^the^e^x^iste^nc^e^of^[^a^c^o^m^p^e^lling^]
^inte^re^st.’”⁽^qu^otiⁿ^g^{First Na}^{t. Ba}ⁿ^k^of^{Boston v}^.^Be^ll^otti,⁴^{35 U.}^{S. a}^t⁷⁸^6)).
³¹⁵^Id^.⁽^q^u^o^ti^ng^Mc^C^oⁿⁿ^e^{ll v}^.^F^E^C^,⁵⁴⁰^U^.^S.^a^t²⁰⁶⁾^.

such ads during the blackout periods is narrowly tailored to serve a compelling governmental ³¹⁶
interest, a conclusion that no precedent has reached.
In response to the FEC’s and the dissent’s³¹⁷ argument that McConnell had established a test for
determining whether an ad is the functional equivalent of express advocacy, that is, “whether the
ad is intended to influence elections or has that effect,” the Court disagreed, finding that it had not ³¹⁸
adopted any type of test as the standard for future as-applied challenges. Instead, the Court
found that its analysis in McConnell was grounded in the evidentiary record, particularly studies
showing that the BCRA definition of “Electioneering Communications accurately captures ads ³¹⁹
having the purpose or effect of supporting candidates for election to office.” Hence, when the
McConnell Court made its assessment that the plaintiffs in that case had not sufficiently proven
that Section 203 was overbroad and could not be enforced in any circumstance, it did not adopt a
particular test for determining what constituted the “functional equivalent” of express advocacy.
Indeed, the Court held, the fact that in McConnell it looked to such intent and effect “neither
compels nor warrants accepting that same standard as the constitutional test for separating, in an
as-applied challenge, political speech protected under the First Amendment from that which may ³²⁰
be banned.”
Accordingly, the Court turned to establishing the proper standard for an as-applied challenge to
Section 203 of BCRA, finding that such a standard “must be objective, focusing on the substance
of the communication rather than amorphous considerations of intent and effect,” involving
“minimal if any discovery” so that parties can resolve disputes “quickly without chilling speech
through the threat of burdensome litigation,” and eschewing “‘the open-ended rough-and-tumble
of factors,’ which ‘invit[es] complex argument in a trial court and a virtually inevitable ³²¹
appeal.’” In summation, the Court announced that the standard “must give the benefit of any ³²²
doubt to protecting rather than stifling speech.” Taking such considerations into account, the
Court held that
^[^A^]^Co^ur^t^sho^u^l^d^fi^nd^t^h^a^t^aⁿ^a^dⁱ^s^t^h^e^f^unc^tⁱ^o^na^l^e^q^ui^va^l^e^nt^o^f^e^x^p^r^e^s^s^a^d^vo^c^a^c^{y o}ⁿ^l^yⁱ^f^t^h^e
^ad^{is su}^scep^tib^{le o}^fⁿ^o^r^easoⁿ^a^b^{le in}^ter^p^r^e^tatioⁿ^o^t^h^e^r^th^an^as^an^ap^p^{eal to}^v^o^{te f}^o^r^o^r^ag^ain^s^t
^{a s}^p^ecifⁱ^c^can^{didate. U}ⁿ^{der t}^h^is^tes^t^{, W}^R^T^L^’s^t^h^{ree ads}^a^r^{e plain}^l^yⁿ^o^t^th^e^fun^c^tion^a^l
^equⁱ^v^a^leⁿ^t^o^f^e^x^pres^s^ad^v^o^cacy^{. Firs}^{t, t}^h^{eir con}^t^eⁿ^{t i}^s^cons^is^t^eⁿ^t^wⁱ^th^th^at^of^a^g^e^nuⁱⁿ^e^is^s^u^e
^ad^{: T}^h^{e ad}^{s f}^o^cu^{s o}ⁿ^{a leg}ⁱ^sla^tiv^{e is}^su^{e, ta}^k^e^{a p}^o^s^itioⁿ^oⁿ^t^h^{e is}^su^{e, ex}^h^o^r^t^th^{e p}^u^b^{lic to}

³¹⁶^Id^.
³¹⁷^T^h^e^disse^nting^o^pⁱⁿ^io^{n m}^a^inta^ine^d^tha^t^the^princⁱ^pa^{l o}^pⁱⁿ^io^{n e}^s^ta^bl^ishe^{s a}^“ⁿ^e^w^te^{st to ide}ⁿ^tif^y^a^se^ve^re^l^y^li^m^ite^d
^c^l^a^{ss of}^a^d^{s tha}^t^m^a^y^c^onstituti^on^a^lly^be^re^g^u^la^te^{d a}^s^e^l^e^c^tione^e^rⁱⁿ^g^c^o^m^m^unic^a^{tions, a}^te^{st tha}^t^is^f^l^a^tly^c^ontra^ry^{to ...}
^[^aⁿ^d^]^sⁱ^m^p^ly^inv^e^r^t^s^”^the^C^our^t’^s^hol^dingⁱⁿ^McC^oⁿⁿ^el^l^.^Id^.^a^t²⁶⁶⁹⁽^S^o^u^te^r^,^J^.,^dis^s^e^ntiⁿ^g⁾⁽^q^uotiⁿ^g^Mc^C^onne^l^l^v^.^FEC^,
⁵⁴⁰^U^.^S.^a^t²^06-²⁰^7,^n.⁸⁸⁾^.^W^h^il^e^the^C^o^ur^{t i}ⁿ^McC^oⁿⁿ^el^l^ha^{d “}^l^e^f^{t ope}^{n t}^h^e^possi^bility^”^of^a^“^‘^g^e^nuine^{’ or ‘}^pure^’
ⁱ^ssu^{e ad}^t^h^at^mⁱ^gh^t^no^t^b^e^op^en^t^o^regu^l^a^tⁱ^oⁿ^uⁿ^d^e^{r §2}⁰³^,^”^t^h^{e d}ⁱ^sseⁿ^t^argu^ed^t^h^at^t^h^{e Co}^u^r^t^m^ean^t^t^h^at^anⁱ^ssu^{e ad}^t^h^at
^dⁱ^dⁿ^o^t^con^t^aiⁿ^cam^p^aⁱ^gⁿ^ad^vo^cac^y^co^u^l^d^escap^{e t}^h^{e regu}^l^a^tⁱ^oⁿ^,ⁿ^o^t^t^h^at^“i^f^an^adⁱ^s^s^u^scep^tⁱ^b^l^e^t^o^aⁿ^y^‘r^easoⁿ^a^b^l^e
ⁱⁿ^t^e^rp^ret^a^tⁱ^oⁿ^o^t^h^e^r^t^h^an^{as an ap}^peal^t^o^vo^t^e^f^o^{r o}^r^agaiⁿ^s^t^{a sp}^eci^fⁱ^{c can}^dⁱ^d^a^t^e^,^’^t^h^enⁱ^t^m^u^st^b^e^{a ‘pure’ o}^r^‘gen^uⁱⁿ^e^’
ⁱ^ssu^{e ad}^.^”^Id^.⁽^S^ou^t^e^r^,^J.,^di^ssen^tⁱ^ng)
³¹⁸^Id^.^a^t²⁶⁶⁴^.
³¹⁹^Id^.^a^t²⁶⁶⁵^.
³²⁰^Id^.^T^h^e^C^o^ur^{t f}^u^r^t^he^r^no^te^{d t}^h^a^tⁱⁿ^its^s^e^mⁱ^na^{l 19}^{76 c}^a^m^pa^ig^{n f}ⁱ^nanc^e^de^cⁱ^sⁱ^on,^B^u^ckl^ey^{, it}^ha^{d e}^x^pr^e^s^s^l^y^“^r^e^j^ec^te^d
^aⁿ^inteⁿ^t^-^a^nd-^e^f^f^e^c^t^te^s^t^f^o^r^dis^tin^g^u^is^hing^be^tw^e^eⁿ^dis^c^us^sⁱ^oⁿ^s^ofⁱ^s^s^u^e^s^a^{nd c}^a^ndi^da^te^s^,^”^fⁱ^nding^t^h^a^t^s^u^c^h^aⁿ^aⁿ^a^l^y^s^is
^w^{ould a}^f^f^o^r^d^“^‘^no^s^e^c^u^r^ity^f^o^r^f^r^ee^dis^c^us^sⁱ^on^.’^”^Id^.⁽^q^uotiⁿ^g^B^u^c^k^l^e^y^v^.^Va^le^{o, 4}²⁴^U^.^S.^1,^43-⁴⁴⁽¹⁹⁷⁶⁾^,^qu^oting
^T^hom^a^s^v^.^Collins,³²^{3 U.S}^.⁵¹⁶⁽¹⁹^45)).
³²¹^Id^.^a^t²⁶⁶⁶⁽^q^uotiⁿ^g^J^e^r^o^m^e^B^.^G^r^uba^r^t^{, I}ⁿ^c^.^v^.^G^r^e^a^t^L^a^k^e^s^D^r^e^dge^&^D^o^c^k^C^o^{., 5}¹³^U^.^S.⁵²^7,⁵⁴⁷⁽¹⁹⁹⁵⁾⁾^.
³²²^Id^.^a^t²⁶⁶⁷^(c^iting^Ne^w^York^Tⁱ^m^e^{s Co. v}^.^Sull^iv^aⁿ^{, 3}⁷⁶^U.S.²⁵⁴^,²⁷^{0 (}¹⁹⁶⁴⁾⁾^.

^{adopt th}^{at pos}^ition^,^an^{d u}^r^g^e^{the pu}^{blic to con}^t^act^pu^{blic of}^fⁱ^ci^als^w^ith^res^p^{ect to th}^e^m^a^tter.
^Secon^d^{, th}^{eir con}^t^en^{t lac}^k^sⁱⁿ^{dicia of}^ex^pres^s^adv^o^cac^y^:^T^h^{e ads}^{do n}^o^{t m}^eⁿ^t^ion^an^electi^oⁿ^,
^can^dⁱ^d^a^c^y^{, p}^o^{litical p}^a^r^t^y^,^o^r^ch^alleⁿ^g^e^r^;^aⁿ^d^t^h^e^y^d^oⁿ^o^{t ta}^k^e^{a p}^o^s^itioⁿ^oⁿ^a^can^dⁱ^d^a^te^’^s³²³
^ch^{aracter, qu}^alif^ica^tions^{, or f}ⁱ^tⁿ^es^s^f^o^{r off}ⁱ^ce.
Moreover, the Court cautioned, contextual factors “should seldom play a significant role in the
inquiry.” Although courts are not required to ignore basic background information that provides
relevant contextual information about an advertisement—such as whether the ad describes a
legislative issue that is under legislative consideration—the Court found that such background ³²⁴
information “should not become an excuse for discovery.”
In applying the standard it developed for as-applied challenges to the ads that WRTL sought to
broadcast, the Court determined that the FEC had failed to demonstrate that such ads constituted
the functional equivalent of express advocacy because they could reasonably be interpreted as
something other than a vote for or against a candidate. The Court’s established jurisprudence has
recognized the governmental interest in preventing corruption and the appearance of corruption in
elections, which has been invoked in order to justify contribution limits and, in certain
circumstances, spending limits on electioneering expenditures that pose the risk of quid pro quo
corruption. In McConnell, the Court noted, it had applied this interest in justifying the regulation
of express advocacy and its functional equivalent, but in order to justify regulating WRTL’s ads,
“this interest must be stretched yet another step to ads that are not the functional equivalent of ³²⁵
express advocacy.” In strongly worded opposition to extending the application of this
governmental interested yet again, the Court announced, “Enough is enough.” The WRTL ads are
not equivalent to contributions—they are political speech—and the governmental interest in ³²⁶
avoiding quid pro quo corruption cannot be used to justify their regulation. The Court also
announced that the discussion of issues cannot be suppressed simply because the issues may also
be relevant to an election: “Where the First Amendment is implicated, the tie goes to the speaker, ³²⁷
not the censor.”
While the ultimate impact and aftermath of the Supreme Court’s decision in WRTL II remains to
be seen, application of the federal law prohibiting corporate and labor union treasury funds from
being spent on ads that are broadcast 30 days before a primary and 60 days before a general
election has been limited. As a result of this ruling, only ads that are susceptible of no reasonable
interpretation other than an exhortation to vote for or against a candidate can be regulated. While
the Court’s ruling was careful not to overrule explicitly its earlier upholding of this portion of the
Bipartisan Campaign Reform Act (BCRA) in its 2003 decision, McConnell v. FEC, WRTL II
seems to indicate that the FEC’s ability to regulate the electioneering communication ban has
nonetheless been circumscribed.

³²³^Id^.
³²⁴^Id^.^a^t²⁶⁶⁹^.
³²⁵^Id^.^a^t²⁶⁷²⁽^e^m^pha^sⁱ^s^inc^l^ude^d)^.
³²⁶^Id^.^a^t²⁶⁷³^.
³²⁷^Id^.^a^t²⁶⁶⁹^.

In the landmark 1976 decision, Buckley v. Valeo, the Supreme Court established the constitutional
framework for campaign finance regulation and in numerous subsequent decisions, extended its
holding. Although it has provided much guidance with regard to the constitutionality of various
aspects of campaign finance regulation, the Court’s jurisprudence in this area continues to evolve
and many questions remain unanswered. While awaiting further guidance from the Court, those
proposing or evaluating campaign finance legislation rely on Buckley and its progeny for
constitutional direction.
^L^.^P^a^ig^{e W}^h^ita^k^e^r
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^l^w^hⁱ^t^a^k^e^r@^cr^s^.^l^o^c.g^o^v^,^7-⁵⁴⁷⁷