The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny
Prepared for Members and Committees of Congress
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
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
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
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
Requiring Sponsors of Election-Related Advertisements to Self-Identify (“Stand-
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
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
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 Roth v. United States, 354 U.S. 476, 484 (1957).
2 424 U.S. 1 (1976).
3 For example, in a line of cases involving the regulation of corporations, the Court endeavored to resolve whether the
First Amendment’s value for open debate by diverse participants permits the government to impose regulations
designed to promote fairness and prevent corporate monopolization of the political marketplace; and whether the First
Amendment’s value for liberty proscribes the government from regulating the political speech and association rights of
corporations. Compare Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (“[T]he concept that government may restrict the
speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First
Amendment.”), with Buckley, 424 U.S. at 49 (“[T]he First Amendment ... was designed ‘to secure the widest possible
dissemination of information from diverse and antagonistic sources’” (quoting New York Times v. Sullivan, 376 U.S.
254, 266 (1964)).
4 2 U.S.C. § 431 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
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,
5 In summary, the FECA provisions at issue contained: (A) spending limitations consisting of (1) a $1,000 contribution
cap to any candidate by any individual, (2) a $25,000 limit on an individual’s annual, aggregate contributions, (3) a
$1,000 cap on a person’s or group’s independent expenditures “relative to a clearly identified candidate,” (4) spending
limits on various candidates for various federal offices, and (5) spending limits on political parties’ national
conventions; (B) reporting and disclosure requirements on contributions and expenditures above certain thresholds; and
©) a provision establishing the Federal Election Commission to administer and enforce the statute. The Court evaluated
“spending” and “disclosure” regulation under separate (though interrelated) lines of judicial principles. Evaluating a
facial challenge to spending limitations, the Court construed the regulation as burdening two sorts of “speech acts”: (1)
“contributions,” which express the level of a person or group’s “support” of a candidate, and (2) “independent
expenditures,” which express the level of a person or group’s “independent political point of view.” In addition to
evaluating “speech” activity, the Court analyzed “contributions” and “independent expenditures” in connection with
their “associational” value.
6 26 U.S.C. § 9001 et seq.
7 2 U.S.C. § 441a.
8 2 U.S.C. § 434.
9 See Subtitle H of the Internal Revenue Code of 1954, codified at 26 U.S.C. § 9001 et seq.
10 Formerly 18 U.S.C. § 608(c)(1)(C-F). The Court made an exception for presidential candidates who accept public
11 Formerly 18 U.S.C. § 608e.
12 Formerly 18 U.S.C. § 608a.
13 Formerly 2 U.S.C. § 437c(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
14 There are two exceptions to this general rule: (1) disclosure requirements will probably not be upheld if disclosure of
a contributor places him or her at risk for economic reprisal or physical threats for being “publicly” associated with the
political group, see NAACP v. Alabama, 357 U.S. 449 (1958) discussed infra, and Brown v. Socialist Workers, 459
U.S. 87 (1982), discussed infra, and (2) disclosure requirements will probably not be upheld if they abridge the right of
an individual to publish and distribute leaflets anonymously, expressing a political point of view, in a referenda or other
issue-based election, see McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) discussed infra.
15 See Buckley, 424 U.S. at 21.
16 Id. at 19.
17 Id. at 15.
18 Id. at 17.
19 See id. at 24.
20 Id. at 59.
21 Id. at 27.
Court found that the appearance of corruption from large campaign contributions also justified 22
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
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
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
22 See id.
23 Id. at 28.
24 Id. at 29.
26 Id. at 39.
28 Id. at 19.
29 Id. at 55.
30 Id. at 51-54. The Court distinguished this holding from its validation of Subtitle H, which provides for the public
financing of presidential elections. Limitations on expenditures by presidential candidates receiving public funds were
distinguishable because the acceptance of public funds was voluntary.
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
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
31 See National Association for the Advancement of Colored People (NAACP) v. Alabama, 357 U.S. 449 (1958). The
reasoning in Buckley and Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87 (1982), discussed infra, has
historical roots in NAACP v. Alabama. In NAACP, the Court addressed whether a non-profit organization’s
associational rights were abridged by a state statute compelling disclosure of its members and agents without regard to
their position and responsibilities in the association. The organization did not comply with the disclosure requirement.
Finding for the NAACP, the Court held that the freedom of association is an “inseparable aspect” of the freedoms
guaranteed by the First and Fourteenth Amendments, see id. at 460-61; that compelled disclosure of the association’s
membership would effectively restrain that freedom, see id. at 461-463; and that, under strict scrutiny, the state’s
interests in disclosure were insufficient to overcome the association’s deprivation of right, see id. at 463-366. The Court
stressed that the “vital relationship between freedom to associate and privacy in one’s associations” was unduly
burdened by the disclosure requirement, as past revelation of membership identity resulted in economic reprisal, loss of
employment, threat of physical coercion, and other manifestations of public hostility. Id. at 462.
32 See also McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (further defining the scope of Buckley’s
disclosure jurisprudence to proscribe disclosure requirements that infringe on the right of an individual to publish and
distribute leaflets anonymously, expressing a political point of view, in a referenda or other issue-based election),
33 26 U.S.C. § 9001 et seq.
34 See Buckley, 424 U.S. at 85.
35 See id. at 86.
36 Id. at 101.
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. at 44.
38 Id., n. 52.
39 Buckley, 424 U.S. at 42. See also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), discussed infra.
40 453 U.S. 182 (1981).
41 454 U.S. 290 (1981).
42 528 U.S. 377 (2000).
43 453 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 See id. at 184. A related provision, 2 U.S.C. § 441a(f), makes it unlawful for a political committee to knowingly
accept contributions exceeding this limit.
45 See id. at 195.
46 See id.
47 See id. at 196.
49 See id. at 197.
50 CMA, 453 U.S. 198 (“Since multicandidate political committees may contribute up to $5,000 per year to any
candidate, 2 U.S.C. § 441a(a)(2)(A), an individual or association seeking to evade the $1,000 limit on individual
contributions could [channel] funds through a multicandidate political committee”).
51 Id. at 198-199 (“Individuals could evade the $25,000 limit on aggregate annual contributions to candidates if they
were allowed to give unlimited sums to multicandidate political committees, since such committees are not limited in
the aggregate amount they may contribute in any given year”).
52 See id. at 199.
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
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.
53 454 U.S. 290 (1981).
54 The Fourteenth Amendment prohibits state governments from depriving “any person of life, liberty, or property,
without due process of law.” U.S. CONST., Amdt. 14 § 1. By virtue of the inclusion of the term “liberty,” the First
Amendment has become applicable to the states. See Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis,
concurring) (“[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from
invasion by the States. The right of free speech [and assembly] ... are fundamental rights.”) Although the plain
language of the First Amendment proscribes the Congress from abridging the freedom of speech and association,
Justice Brandeis’ reading of the Fourteenth Amendment has become a part of the Supreme Court’s incorporation
jurisprudence. See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 779-780 (1978), discussed infra.
55 See id. at 296. “The freedom of association ‘is diluted if it does not include the right to pool money through
contributions, for funds are often essential if advocacy is to be truly or optimally effective.’” Id. (quoting Buckley, 424
U.S. at 65-66).
56 See id. at 298-199 (finding that “[r]egulation of First Amendment Rights is always subject to exacting scrutiny”).
57 Id. at 298 (noting that “[r]eferenda are held on issues, not candidates for public office. The risk of corruption
perceived in cases involving candidate elections simply is not present in a popular vote on a public issue” (quoting First
National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)).
58 See id.
59 Id. at 298 (finding that “[c]ontributions by individuals to support concerted action by a committee advocating a
position on a ballot measure is beyond question a very significant form of political expression”).
60 See id. at 299-300.
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.
61 528 U.S. 377 (2000).
62 Id. at 901. The amounts were statutory base lines to be adjusted each year in light of the cumulative consumer price
index. See id.
63 Id. at 902.
64 Id., quoting 161 F.3d 520, 521-522.
65 See id. at 903 (announcing that [t]he [First Amendment] has its fullest and most urgent application precisely to the
conduct of campaigns for political office.” Id.
66 Id. at 909.
67 Id. at 903.
68 Id. at 904, quoting Buckley, 424 U.S. at 25.
69 Id. at 904, quoting Buckley, 424 U.S. at 30, n. 3.
70 Id. at 904-905.
71 Id. at 906.
72 See id. at 906-908.
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
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
73 539 U.S. 146 (2003).
74 479 U.S. 238 (1986), discussed infra.
75 Beaumont, 539 U.S. at 157 (quoting National Conservative Political Action Comm., 470 U.S. at 500-01).
76 Id. (quoting National Right to Work Comm., 459 U.S. at 210).
77 The Court explained that “[w]hile contributions may result in political expression if spent by a candidate or an
association ... the transformation of contributions into political debate involves speech by someone other than the
contributor.” Id. at 161 (quoting Buckley, 424 U.S. at 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. (quoting Buckley, 424 U.S. at 25).
79 See id. at 162-63. (“The PAC option allows corporate political participation without the temptation to use corporate
funds for political influence, quite possibly at odds with the sentiments of some shareholders or members, and it lets the
government regulate campaign activity through registration and disclosure, see §§ 432-434, without jeopardizing the
associational rights of advocacy organizations’ members”).
80 Id. (citing National Right to Work, 459 U.S. at 201).
81 435 U.S. 765 (1978).
82 479 U.S. 238 (1986).
83 494 U.S. 652 (1990).
84 459 U.S. 197 (1982).
85 518 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,
86 470 U.S. 1 (1985).
87 548 U.S. 230 (2006).
88 435 U.S. 765 (1978).
89 Id. at 768.
90 Id. at 769.
92 Id. at 768.
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. at 769.
94 See id. at 784-786.
95 See id. at 776.
97 See id. at 776-777 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966) (noting that the nature of the corporation’s
speech “is the type of speech indispensable to decision making in a democracy, and this is no less true because the
speech comes from a corporation rather than an individual”).
98 Id. at 787.
100 Id. at 788.
101 Id. at 789 (citing Buckley, 352 U.S. at 2).
104 Id. at 790. Moreover, the Court asserted that the people, not the government, are the final arbiter and evaluator of the
“relative and conflicting arguments” on referendum issues.
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 See id. at 794.
106 See id. at 794-795.
107 See id. at 793.
108 See id. at 795.
109 479 U.S. 238 (1986).
110 See id. at 241-242.
111 See id. at 242.
112 Id. at 249. The Court found that the publication not only urged voters to vote for “pro-life” candidates, but also
identified and provided photographs of specific candidates. As a result, the Court determined that the publication could
not be considered a “mere discussion” of public issues. Id.
113 See Buckley v. Valeo, 424 U.S. 1, 44 (1976), supra.
114 See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. at 263.
115 See id. at 252.
116 Id. at 257 (“political ‘free-trade’ does not necessarily require [that participants] in the political marketplace
[compete with equal resources]”).
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
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 See id. at 258 (cited by Austin, 494 U.S. at 659).
118 Id. 258, see also Austin, 494 U.S. at 660 (holding that the separate segregated fund requirement “ensures that
expenditures reflect actual public support”).
119 Id. at 259.
120 See id. at 259, 264.
121 Id. (emphasis added). See also, id. at 263 (“voluntary political organizations do not suddenly present the specter of
corruption merely by assuming the corporate form.”), but see Austin, 494 U.S. 659, 660 (suggesting that the selection
of the corporate form in itself triggers the state’s regulatory interests; “[t]he unique state-conferred corporate structure
that facilitates the amassing of large treasuries warrants the limit on independent expenditures”).
122 See MCFL, 479 U.S. at 259.
123 See id. at 260.
124 494 U.S. 652 (1990).
125 The statute defined “expenditure” as “a payment, donation, loan, pledge, or promise of payment of money or
anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to,
the nomination or election of a candidate.” Id. at 655 (quoting Mich. Comp. Laws § 169.206(1) (1979)).
126 The Michigan Statute was modeled on a provision of the Federal Election Campaign Act (FECA) requiring
corporations and labor unions to use a separate segregated fund or PAC when making independent expenditures in
connection with federal elections. See Austin, 494 U.S. at 656, 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 See id. at 658.
128 See id. at 659.
129 Id. (quoting Federal Election Comm’n v. Massachusetts Citizens for Life, 479 U.S. 238, 258 (1986) (MCFL)).
130 424 U.S. 1 (1976) (per curiam).
131 479 U.S. 238 (1986).
132 See Austin, 494 U.S. at 657. Antecedent to these inquiries, the Court affirmed that the plaintiff’s interest in using
general funds for independent expenditures is “political expression at the core of our electoral process and of the First
Amendment freedoms.” Id. at 657, (quoting Buckley, 424 U.S. at 39). Moreover, the Court noted that the plaintiff’s
status as a corporation did not completely erode its free speech interest under the First Amendment. See Austin, 494
U.S. at 657 (citing Bellotti, 435 U.S. at 777).
133 See Austin, 494 U.S. at 657.
134 For example, the Court noted that the regulation required a corporation to appoint a treasurer to administer the fund,
keep records of the funds’ transactional history, and create and periodically update an informational statement about the
fund for the state. Id. at 658.
137 Id. (citing MCFL, 479 U.S. at 252 (plurality opinion)).
138 As examples, the Court cited attributes that enhanced a corporation’s ability to manage and attract capital assets
favorable to its shareholder’s proprietary interests, such as perpetual life, limited liability, and favorable treatment with
respect to the accumulation and distribution of capital. Austin, 494 U.S. at 658-659.
139 Id. at 658, 659 (citing Federal Election Comm’n v. National Conservative Political Action Committee, 470 U.S.
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
480, 496-497 (1985), and MCFL, 479 U.S. at 258)).
140 Id. at 660.
142 See id. at 663.
143 Id. at 665.
144 Id. (“The desire to counter-balance those advantages unique to the corporate form is the State’s compelling interest
in this case.”) But see MCFL, 479 U.S. at 259 (“[r]egulation of the corporate political activity thus has reflected
concern not about the corporate form per se, but about the potential for unfair deployment of wealth for political
145 The Court also considered whether the corporation’s “ideological” purposes, rather than purely “economic”
purposes, provided a constitutional warrant for “excepting” it from the “segregation” requirement.
146 See Austin, 494 U.S. 662-664.
147 Id. at 662 (quoting MCFL, 479 U.S. at 264).
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. at 663 (quoting MCFL, 479 U.S. at 264).
149 Id. at 664 (citing MCFL, 479 U.S. at 264).
150 Outside the First Amendment and Buckley contexts, but relevant to the regulation of political activities by labor
unions, in Communications Workers of America v. Beck, 487 U.S. 735 (1988), the Supreme Court considered whether
the National Labor Relations Act, 29 U.S.C. § 158(a)(3), permits a labor union to expend funds collected from dues
paying, non-union member employees for activities unrelated to collective bargaining, contract administration, and
grievance adjustment. The plain language of the act permits an employer and an exclusive bargaining representative to
enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a
condition of continued employment, whether or not the employees otherwise wish to be a member of the union. See
Beck, 487 U.S. at 736. The Court found that Congress intended to correct abuses associated with “closed shop”
agreements by limiting compulsory unionism to regimes that require non-member contributions only insofar as they are
necessary to defray the costs of collective-bargaining efforts made on behalf of union and non-union employees. See id.
at 745. Accordingly, the Court held that the act does not permit a union, over the objections of dues paying nonmember
employees, to expend funds collected from them on activities unrelated to collective bargaining, including funds
expended for political activities. See id. at 744-62. For further discussion of Communication Workers of America v.
Beck, see CRS Report 97-618, The Use of Labor Union Dues For Political Purposes: A Legal Analysis, by L. Paige
151 459 U.S. 197 (1982).
152 See id. at 202 (“A person who, through his response [to the organization’s publications or material], evidences an
intention to support NRWC in promoting [the organization’s purposes] qualifies as a member”). Id. Under this
definition, contributors to the NRWC’s segregated fund were construed as members.
153 See id. at 203 (“A person is not considered a member ... if the only requirement for membership is a contribution to
a separate segregated fund”). 11 CFR § 114.1(e) (1982).
154 See NRWC, 459 U.S. at 203.
155 See id. at 207.
156 See id. at 206-207.
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 See id. at 207.
158 See id. at 207-208.
159 See id. at 209 (citing Bellotti, 435 U.S. at 788, n. 26.).
160 See id. at 208.
161 Id. at 209-210. For reasons similar to those in Austin and MCFL, the Court held that the regulation was narrowly
tailored to attain its regulatory interests. See id. at 210.
162 518 U.S. 604 (1996).
163 2 U.S.C. § 441a(d)(3).
164 See 518 U.S. at 612.
165 At the time of this decision, FECA exempted political parties from its general contribution and expenditure limits,
which limits “multi-candidate” political committees to making no more than $5,000 in direct and indirect contributions
to candidates. See 2 U.S.C. §§ 441a(a)(2),(7)(B)(i). Instead, FECA allowed political parties to make greater
contributions and expenditures. See §§ 441a(d)(1),(3)(A). In this case the CRP qualified to spend about $103,000 in
connection with the senatorial campaign, but transferred that amount to their national party. See 518 U.S. at 611.
166 See id. at 612. However, at the time of the expenditure, the Republicans had not selected their senatorial candidate.
See id. at 614.
167 See id. at 618.
instance.168 Rendering a narrow holding, the Court found for the CRP on a portion of its “as
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
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 See id. at 613.
169 See id at 614, 615, 618, 622-623.
170 See id. at 614-615 (citing Federal Election Comm’n v. National Conservative Political Action Committee (NCPAC),
479 U.S. 238 (1985)).
171 See id. at 615 (citing Buckley, 424 U.S. at 47).
172 Id. (quoting Buckley, 424 U.S. at 19).
173 Id. at 616.
174 Id. at 614 (quoting Buckley, 424 U.S. at 20-21).
175 Id. at 615.
176 See id. at 610, 611, 613, 619.
177 See id. at 615.
178 See id. at 614-615.
179 Id. at 616.
180 See id. at 617.
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
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 See id. (quoting Buckley, 424 U.S. at 44).
182 See id.
183 533 U.S. 431 (2001).
184 2 U.S.C. § 441a(d)(3).
185 Id at 447.
186 Id. at 456.
187 Id. at 446, 456.
188 Id. at 457.
189 454 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 See id. at 29, 30.
191 See id. at 31.
192 See id. at 41.
193 See id.
194 See id.
195 470 U.S. 480 (1985).
196 See id. at 483.
197 See id. at 490.
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
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 See id. at 493 (quoting Buckley, 424 U.S. at 14).
199 Id. See also Buckley, 424 U.S. at 19(“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 exploration, and the size of the audience reached. This is because virtually every means of
communicating ideas in today’s mass society requires the expenditure of money.”)
200 NCPAC, 470 U.S. at 494 (quoting Buckley, 424 U.S. at 22).
201 Id. at 495 (distinguishing California Medical Assoc. 453 U.S. at 196 (Marshal, J.) (plurality opinion)).
202 Discussed supra.
203 See NCPAC, 470 U.S. at 496.
204 See id. at 498.
205 548 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 See id. at 237-38.
207 See id. at 245.
209 See id. The Breyer opinion notes that in Buckley, the Court observed that “Congress was trying to ‘free candidates
from the rigors of fundraising.’” Id. (citing Buckley v. Valeo, 424 U.S. 1, 91 (1976)).
210 See id. at 246.
211 525 U.S. 182 (1999).
212 459 U.S. 87 (1982).
213 524 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
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
214 525 U.S. 182 (1999).
215 See id. at 201.
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 See id.
219 See id. at 202.
220 See id.
221 The lower court invalidated the disclosure requirement “only insofar as it compels disclosure of information specific
to each paid contributor, in particular, the circulators’ names and addresses and the total amount paid to each
circulator.” Id. at 201 (citing American Constitutional Law Foundation v. Meyer, 120 F.3d 1092, 1104-1105 (1997)).
222 See id. (citing Buckley, 424 U.S. at 64-65). By requiring proponents to identify paid circulators by name, it would
decrease the supply of those willing to be circulators, thereby “chilling” core political speech. See ACLF, 525 U.S. at
212 (Thomas, J. concurring).
223 See ACLF, 525 U.S. 202.
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
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 See id. at 203.
225 See id.
226 486 U.S. 414 (1988) (holding a Colorado statute making it a felony to pay for circulation of initiative petitions to
abridge political speech in violation of the First and Fourteenth Amendments.)
227 See ACLF, 525 U.S. at 203 (quoting Meyer, 486 U.S. at 427) (“The risk of fraud or corruption, or the appearance
thereof, is more remote at the petition stage of an initiative than at the time of balloting.”)
228 See ACLF, 525 U.S. at 204.
229 479 U.S. 87 (1982).
230 See id. at 89.
231 See id. at 88.
232 See id. at 93 (citing Buckley, 424 U.S. at 74).
233 See id. at 97, 98.
234 See id. at 101-102.
235 See id. at 99.
236 See id.
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
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
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 See id. at 100.
238 See id. at 102.
239 524 U.S. 11 (1998).
240 See id. at 14.
241 514 U.S. 334 (1995).
242 See id. at 336.
243 See id. at 357.
245 Id. at 347.
246 See id.
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 See id. at 348, 349.
248 Id. at 353.
249 Id. at 354.
250 Id. at 355 (citing Buckley, 424 U.S. at 75-76). In Buckley, the Supreme Court had upheld a requirement that
independent expenditures above a certain threshold be reported to the FEC.
252 Id. at 356.
253 Id. (quoting Buckley, 424 U.S. at 80.
254 See id.
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
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
255 540 U.S. 93 (2003). For further discussion of this decision, see CRS Report RL32245, Campaign Finance Law: A
Legal Analysis of the Supreme Court Ruling in McConnell v. FEC, by L. Paige Whitaker.
256 P.L. 107-155. The Bipartisan Campaign Reform Act of 2002 (BCRA) was the first major overhaul of federal
campaign finance laws since the enactment of the Federal Election Campaign Act of 1971.
257 Id. at 706.
258 2 U.S.C. § 441i(a).
259 McConnell, 124 S. Ct. at 654.
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 McConnell, 124 S. Ct. at 647 (quoting FEC v. Beaumont, 123 S. Ct. 2200 (2003)).
262 Id. at 656 (quoting FEC v. National Right to Work, 459 U.S. 197, 208 (1982)).
263 Id. at 656-57. The Court further noted that “closely drawn” scrutiny provides Congress with sufficient room to
anticipate and respond to circumvention of the federal election regulatory regime, which is designed to protect the
integrity of the political process. Id.
265 Id. at 657-58.
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
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. at 742-59 (Kennedy, J., concurring, in part, dissenting, in part) (joined by Chief Justice Rehnquist, Justices Scalia
(except to the extent it upholds FECA § 323(e) and BCRA § 202) and Thomas (only with respect to BCRA § 213).
267 Id. at 746.
268 Id. at 665.
269 Id. at 666.
270 2 U.S.C. § 434(f)(3)(A)(i). BCRA defines “[t]argeted to the relevant electorate” as a communication that can be
received by 50,000 or more persons in a state or congressional district where the Senate or House election, respectively,
is occurring. 2 U.S.C. § 434(f)(3)(C).
271 2 U.S.C. § 441b(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 Buckley, 424 U.S. at 80.
273 McConnell, 124 S. Ct. at 688.
274 Id. at 689.
275 Id. at 696.
276 Id. (citing 251 F. Supp. 2d 176, 573-578 (D.D.C.) (Kollar-Kotelly, J.), 826-827 (Leon, J.)).
277 Id. at 695.
278 Id. at 696.
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
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
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
279 Id. at 697.
280 Id. at 762 (Kennedy, J., concurring, in part, dissenting, in part) (joined by Chief Justice Rehnquist and Justices
Scalia (except to the extent it upholds FECA § 323(e) and BCRA § 202) and Thomas (only with respect to BCRA §
213)). While Justice Kennedy’s opinion served as the primary dissent for the minority, in a separate dissent, Justice
Scalia wrote, “[t]his is a sad day for the freedom of speech,” further commenting that “[i]f the Bill of Rights had
intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree
with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said
so.” Id. at 720, 726.
281 479 U.S. 238 (1986) (holding that the following characteristics exempt a corporation from 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 neither founded by nor accepts contributions from business organizations or labor
282 McConnell, 124 S. Ct. at 699.
283 2 U.S.C. § 441d.
284 McConnell, 124 S. Ct. at 710.
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
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. § 315(d)(4).
286 McConnell, 124 S. Ct. at 703.
287 2 U.S.C. § 315(d)(4).
288 2 U.S.C. § 301(17).
289 McConnell, 124 S. Ct. at 702.
290 2 U.S.C. § 441k.
291 McConnell, 124 S. Ct. at 711.
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 See 2 U.S.C. § 441f.
293 McConnell, 124 S. Ct. at 711.
295 2 U.S.C. § 315(a).
296 McConnell, 124 S. Ct. at 656-57.
297 Id. at 686.
298 127 S.Ct. 2652 (2007). For further discussion of this decision, see CRS Report RS22687, The Constitutionality of
Regulating Political Advertisements: An Analysis of Federal Election Commission v. Wisconsin Right to Life, Inc., by
L. Paige Whitaker.
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
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. 107-155. This law is also known as “McCain-Feingold,” referring to the principal Senate sponsors of the
300 See 2 U.S.C. § 441b(b)(2).
301 540 U.S. 93 (2003), discussed supra.
302 Id. at 204-205, 206.
303546 U.S. 410 (2006).
304 Id. at 412.
305 Wisconsin Right to Life, Inc. v. Federal Election Commission, 466 F. Supp. 2d 195 (D.D.C. 2006).
306 Id. at 210.
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
307 127 S.Ct. 2652 (2007).
308 In a concurrence, Justice Scalia found that the attempt in the Court’s ruling to distinguish McConnell is
“unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices ... having widely
divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules
McConnell without saying so.” Id. at 2684, n. 7 (Scalia, J. concurring in part and concurring in the judgment).
309 Id. at 2670.
310 Id. at 2659 (quoting Buckley v. Valeo, 424 U.S. 1, 42 (1976)).
312 See id. at 2663-64.
313 See id. at 2664 (citing McConnell v. FEC, 540 U.S. 93, 205 (2003); Austin v. Michigan Chamber of Commerce, 494
U.S. 652, 658 (1990); FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252 (1986); First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765, 786 (1978); Buckley v. Valeo, 424 U.S. 1, 44-45 (1976)).
314 Id. (finding “[e]specially where, as here, a prohibition is directed at speech itself, and the speech is intimately related
to the process of governing ... ‘the burden is on the government to show the existence of [a compelling]
interest.’”(quoting First Nat. Bank of Boston v. Bellotti, 435 U.S. at 786)).
315 Id. (quoting McConnell v. FEC, 540 U.S. at 206).
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
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] Court should find that an ad is the functional equivalent of express advocacy only if the
ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against
a specific candidate. Under this test, WRTL’s three ads are plainly not the functional
equivalent of express advocacy. First, their content is consistent with that of a genuine issue
ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to
317 The dissenting opinion maintained that the principal opinion establishes a “new test to identify a severely limited
class of ads that may constitutionally be regulated as electioneering communications, a test that is flatly contrary to ...
[and] simply inverts” the Court’s holding in McConnell. Id. at 2669 (Souter, J., dissenting) (quoting McConnell v. FEC,
540 U.S. at 206-207, n. 88). While the Court in McConnell had “left open the possibility” of a “‘genuine’ or ‘pure’
issue ad that might not be open to regulation under §203,” the dissent argued that the Court meant that an issue ad that
did not contain campaign advocacy could escape the regulation, not that “if an ad is susceptible to any ‘reasonable
interpretation other than as an appeal to vote for or against a specific candidate,’ then it must be a ‘pure’ or ‘genuine’
issue ad.” Id. (Souter, J., dissenting)
318 Id. at 2664.
319 Id. at 2665.
320 Id. The Court further noted that in its seminal 1976 campaign finance decision, Buckley, it had expressly “rejected
an intent-and-effect test for distinguishing between discussions of issues and candidates,” finding that such an analysis
would afford “‘no security for free discussion.’” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 43-44 (1976), quoting
Thomas v. Collins, 323 U.S. 516 (1945)).
321 Id. at 2666 (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995)).
322 Id. at 2667 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
adopt that position, and urge the public to contact public officials with respect to the matter.
Second, their content lacks indicia of express advocacy: The ads do not mention an election,
candidacy, political party, or challenger; and they do not take a position on a candidate’s 323
character, qualifications, or fitness for office.
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.
324 Id. at 2669.
325 Id. at 2672 (emphasis included).
326 Id. at 2673.
327 Id. at 2669.
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
L. Paige Whitaker