United States Constitution

PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution

ARTICLES

Amendment

First Amendment: Freedom of Speech Political Speech

Introduction
Money As Political Speech

Introduction		Important Cases
As Justice Black stated in Mills v. State of Alabama, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Political speech includes discussions of candidates, the form of government, how government should be run, and any other discussion of the political process. These forms of speech are afforded the strongest protection, and usually any restrictions on them are judged by a strict scrutiny standard.Strict scrutiny was applied to just such a restriction in Brown v. Hartlage. The Court held that the voiding of an election due to a candidate’s offering of an idea was unconstitutional. A state corruption law prevented candidates from offering benefits to voters in exchange for votes – in this case, the candidate had promised to work for a lower salary if elected, and the election would be voided if he was found to have violated the statute. The Court determined that any restriction on the offering of ideas by a candidate to the electorate would need to be justified by a compelling state interest and could not unnecessarily infringe protected speech, and that voiding the election over this kind of campaign promise did not meet these standards.It is very difficult for a law limiting pure political speech to meet strict scrutiny, but there are rare moments when it does. In the 1992 decision in Burson v. Freeman, the Court upheld a law prohibiting solicitation of votes or distributing campaign materials within 100 ft of a polling place. The Court held that historically, some restriction on campaigning directly in or around polling places was necessary to protect the right to vote. When balancing the compelling state interest of protecting the right to vote with the right to free expression, the Court found this compromise to be constitutional.		Mills v. State of Alabama (1966) Brown v. Hartlage (1982) Burson v. Freeman (1992)

Introduction

Important Cases

As Justice Black stated in Mills v. State of Alabama, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Political speech includes discussions of candidates, the form of government, how government should be run, and any other discussion of the political process. These forms of speech are afforded the strongest protection, and usually any restrictions on them are judged by a strict scrutiny standard.Strict scrutiny was applied to just such a restriction in Brown v. Hartlage. The Court held that the voiding of an election due to a candidate’s offering of an idea was unconstitutional. A state corruption law prevented candidates from offering benefits to voters in exchange for votes – in this case, the candidate had promised to work for a lower salary if elected, and the election would be voided if he was found to have violated the statute. The Court determined that any restriction on the offering of ideas by a candidate to the electorate would need to be justified by a compelling state interest and could not unnecessarily infringe protected speech, and that voiding the election over this kind of campaign promise did not meet these standards.It is very difficult for a law limiting pure political speech to meet strict scrutiny, but there are rare moments when it does. In the 1992 decision in Burson v. Freeman, the Court upheld a law prohibiting solicitation of votes or distributing campaign materials within 100 ft of a polling place. The Court held that historically, some restriction on campaigning directly in or around polling places was necessary to protect the right to vote. When balancing the compelling state interest of protecting the right to vote with the right to free expression, the Court found this compromise to be constitutional.

Mills v. State of Alabama (1966)

Brown v. Hartlage (1982)

Burson v. Freeman (1992)

Money as Political Speech		Important Cases
Although pure political speech has been reserved high protection, the use of money in elections as a form of political speech has proven to be quite controversial. Spending and raising money is technically symbolic speech, which as discussed elsewhere, usually is more susceptible to regulation. Additionally, there are serious concerns about the specific, unique ways that money can influence politics and elections, which leads many people to think it should be specifically restricted and regulated.The classic Supreme Court decision on this issue is the 1976 case Buckley v. Valeo, which controlled the law on this topic for decades. The law at issue in the case is the 1974 Amendments to the Federal Election Campaign Act, which had been enacted after the Watergate investigations revealed serious campaign finance misdeeds in the 1972 presidential elections. The 1974 Amendments limited contributions, limited personal expenditures, created disclosure requirements, and created public funding for presidential elections.The Court began the opinion by determining that unlike other symbolic speech, which would normally be analyzed through the O’Brien test, the giving or spending of money can be either speech alone, conduct, or both. This is because “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” Therefore, the Amendments would be analyzed under strict scrutiny as restrictions on political speech.Under this analysis, the Court upheld the restrictions on contributions. Unlimited monetary contributions can cause corruption or the appearance of it, such as a “quid pro qou” deal where a candidate does a favor in exchange for a contribution. The Court felt that the government preventing this was essential to a functioning democracy. Limiting a contribution still allows someone to make a statement or message with their allowed contribution, so speech was not overly restricted. Similarly, the Court upheld financial disclosure requirements, using the same anti-corruption rationale.Limits on expenditures, however, were struck down as unconstitutional. The Court determined that limiting independent expenditures did not have the same anti-corruption impact – there being less danger of a quid pro quo deal if the individual isn’t directly contributing. Additionally, the Court rejected the argument that these limits were necessary to make candidates equal, stating the idea of restricting some speech to enhance the speech of others was “wholly foreign to the First Amendment.” Following a similar line of reasoning, the Court struck down total limits a candidate could spend on themselves, stating that it was the role of the individual – not the government – to determine how much one could spend to promote their own views.The last portion of the decision upheld the public financing of elections because it did not restrict speech. By allowing for public financing of candidates who met the requirements, speech could be expanded to a broader pool of candidates and electors.Cases involving campaign financing after Buckley focused on new loopholes or specific issues that had cropped up following that decision. The 1990 case Austin v. Michigan Chamber of Commerce dealt with the increase in independent expenditures that followed the Buckley decision. Corporations and unions were raising money to independently expend in supporting or opposing candidates in elections. Michigan passed a law banning corporations from spending on elections from their treasuries and the state was sued by the Michigan Chamber of Commerce. The Court upheld the law as constitutional, finding that corporate structure can allow for immense concentration of wealth that can influence elections without reflecting what the actual public wants. The Michigan law allowed for corporations to make a separate account from which they could solicit for funds, which the Court determined would more accurately reflect the public’s view and serve the state’s need to maintain the integrity of elections. Congress attempted to close post-Buckley loopholes regarding “soft money” by passing the Bipartisan Campaign Finance Reform Act of 2002. Soft money are funds that are not covered by limits on contributions to candidates or committees. Corporations and unions which could not directly donate to a campaign would raise this soft money in large amounts and then donate it to the political party to spend instead. BCFRA prevented this soft money from being used by national political parties or state political parties, restrict ads that were paid for by unions and corporations that supported a candidate, make coordinated between elected officials and unions or corporations be considered contributions, expand the reporting requirements. In response to passing this law, they were sued. The law was challenged, and the case made it up to the Supreme Court as McConnell v. Federal Election Commission. The Court upheld the vast majority of the law, affirming Buckley and the important interest of preventing corruption and the appearance of corruption rationale. This rationale was supplemented with the Court’s determination that many of the 2002 amendments were necessary to prevent the circumvention of the rules affirmed in Buckley. Despite the substantial case law mostly upholding Congress’s campaign finance reform efforts, recent trends in the current Court have moved in the opposite direction – overruling a significant number of cases and causing significant controversy. The decision which prompted this major shift is Citizens United v. Federal Election Committee. Citizens United is a conservative non-profit political action group. During the 2008 election, Citizens United created a film attacking Hillary Clinton, titled “Hillary: The Movie.” The group wanted to show the movie in theatres and through on-demand video services, but the federal government blocked it. The DC District Court held that showing the video violated a section of the BCFRA, the law which had been upheld in McConnell. Specifically, by playing television ads for their film, Citizens was in violation of one section of that law prohibited use of a corporation or union’s general treasury to fund “electioneering communication” within 30 days of a primary or 60 days of a general election. First the Court overruled Austin, now holding that it was a violation of free speech to discriminate against a speaker simply because that speaker was a corporation. The Court discussed that the main rationale behind Austin was “anti-distortional” – to equalize speech between the public and the wealthy corporations. However, this kind of equalizing rationale had been ruled unconstitutional in Buckley. Additionally, corporations reflected the association of people, so this infringed on the First Amendment right to associate as well. McDonnell was also partially overruled. The Court found no state interest to justify limiting independent expenditures by corporations. Following a similar line of reasoning to the Buckley case, the Court held that independent expenditures did not create or give the appearance of corruption. With Austin also overruled, there was no reason to specifically limit independent expenditures by corporations either. Without any state interest left remaining, the ban was struck down as unconstitutional. The Court did uphold one portion as constitutional – the disclosure requirements. Disclosure can be a burden on speech, and the Court analyzed it under a standard which required a substantial relation between the restriction (disclosure) and the significant government interest. Since disclosures do not limit expenditure or contributions and do not prevent speech and also serve the significant interest of keeping the electorate informed, the Court found this provision to be constitutionally acceptable. This trend towards deregulating finance most recently continued in the 2014 decision McCutcheon v. Federal Elections Commission. This time, aggregate contribution limits were being challenged. Aside from base limits to how much money a person can donate to a candidate, there were also limits to the total amount of money a donor could give to all candidates in total. Several prospective donors challenged this, claiming it in infringed on their First Amendment rights. The plurality held that the only permissible regulation of speech in regards to elections and campaign finance were those which served the compelling government interest in stopping “quid pro qou corruption.” After analyzing the statute, the Court determined that limiting the totals did not aid in this interest and also infringed too heavily on speech, making it unconstitutional. The plurality reasoned that since Congress established a max amount that can be given to a single candidate, then anything within that limit posed no threat of corruption. Without a limit to the total donations, each candidate can still only receive the base maximum allowed. Restricting the total would only limit the number of candidates a person could donate too – restricting their speech and political association – yet would have no effect on the base limit or quid pro quo corruption. The dissent, written by the liberals of the court, argued for a wider view of corruption – that focusing on quid pro quo corruption was far too narrow. Removing the aggregate limit allows single donors to donate vast amounts of money to a political party, regardless of individual candidate limits. Combined with the earlier Citizens United decision, the dissenters said this decision “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”		Buckley v. Valeo (1976)Austin v. Michigan Chamber of Commerce (1990) McConnell v. Federal Elections Commission (2003) Citizens United v. Federal Election Commission (2010) McCutcheon v. FEC (2014)

Money as Political Speech

Important Cases

Although pure political speech has been reserved high protection, the use of money in elections as a form of political speech has proven to be quite controversial. Spending and raising money is technically symbolic speech, which as discussed elsewhere, usually is more susceptible to regulation. Additionally, there are serious concerns about the specific, unique ways that money can influence politics and elections, which leads many people to think it should be specifically restricted and regulated.The classic Supreme Court decision on this issue is the 1976 case Buckley v. Valeo, which controlled the law on this topic for decades. The law at issue in the case is the 1974 Amendments to the Federal Election Campaign Act, which had been enacted after the Watergate investigations revealed serious campaign finance misdeeds in the 1972 presidential elections. The 1974 Amendments limited contributions, limited personal expenditures, created disclosure requirements, and created public funding for presidential elections.The Court began the opinion by determining that unlike other symbolic speech, which would normally be analyzed through the O’Brien test, the giving or spending of money can be either speech alone, conduct, or both. This is because “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” Therefore, the Amendments would be analyzed under strict scrutiny as restrictions on political speech.Under this analysis, the Court upheld the restrictions on contributions. Unlimited monetary contributions can cause corruption or the appearance of it, such as a “quid pro qou” deal where a candidate does a favor in exchange for a contribution. The Court felt that the government preventing this was essential to a functioning democracy. Limiting a contribution still allows someone to make a statement or message with their allowed contribution, so speech was not overly restricted. Similarly, the Court upheld financial disclosure requirements, using the same anti-corruption rationale.Limits on expenditures, however, were struck down as unconstitutional. The Court determined that limiting independent expenditures did not have the same anti-corruption impact – there being less danger of a quid pro quo deal if the individual isn’t directly contributing. Additionally, the Court rejected the argument that these limits were necessary to make candidates equal, stating the idea of restricting some speech to enhance the speech of others was “wholly foreign to the First Amendment.” Following a similar line of reasoning, the Court struck down total limits a candidate could spend on themselves, stating that it was the role of the individual – not the government – to determine how much one could spend to promote their own views.The last portion of the decision upheld the public financing of elections because it did not restrict speech. By allowing for public financing of candidates who met the requirements, speech could be expanded to a broader pool of candidates and electors.Cases involving campaign financing after Buckley focused on new loopholes or specific issues that had cropped up following that decision. The 1990 case Austin v. Michigan Chamber of Commerce dealt with the increase in independent expenditures that followed the Buckley decision. Corporations and unions were raising money to independently expend in supporting or opposing candidates in elections. Michigan passed a law banning corporations from spending on elections from their treasuries and the state was sued by the Michigan Chamber of Commerce. The Court upheld the law as constitutional, finding that corporate structure can allow for immense concentration of wealth that can influence elections without reflecting what the actual public wants. The Michigan law allowed for corporations to make a separate account from which they could solicit for funds, which the Court determined would more accurately reflect the public’s view and serve the state’s need to maintain the integrity of elections.

Congress attempted to close post-Buckley loopholes regarding “soft money” by passing the Bipartisan Campaign Finance Reform Act of 2002. Soft money are funds that are not covered by limits on contributions to candidates or committees. Corporations and unions which could not directly donate to a campaign would raise this soft money in large amounts and then donate it to the political party to spend instead. BCFRA prevented this soft money from being used by national political parties or state political parties, restrict ads that were paid for by unions and corporations that supported a candidate, make coordinated between elected officials and unions or corporations be considered contributions, expand the reporting requirements. In response to passing this law, they were sued. The law was challenged, and the case made it up to the Supreme Court as McConnell v. Federal Election Commission.

The Court upheld the vast majority of the law, affirming Buckley and the important interest of preventing corruption and the appearance of corruption rationale. This rationale was supplemented with the Court’s determination that many of the 2002 amendments were necessary to prevent the circumvention of the rules affirmed in Buckley.

Despite the substantial case law mostly upholding Congress’s campaign finance reform efforts, recent trends in the current Court have moved in the opposite direction – overruling a significant number of cases and causing significant controversy. The decision which prompted this major shift is Citizens United v. Federal Election Committee.

Citizens United is a conservative non-profit political action group. During the 2008 election, Citizens United created a film attacking Hillary Clinton, titled “Hillary: The Movie.” The group wanted to show the movie in theatres and through on-demand video services, but the federal government blocked it. The DC District Court held that showing the video violated a section of the BCFRA, the law which had been upheld in McConnell. Specifically, by playing television ads for their film, Citizens was in violation of one section of that law prohibited use of a corporation or union’s general treasury to fund “electioneering communication” within 30 days of a primary or 60 days of a general election.

First the Court overruled Austin, now holding that it was a violation of free speech to discriminate against a speaker simply because that speaker was a corporation. The Court discussed that the main rationale behind Austin was “anti-distortional” – to equalize speech between the public and the wealthy corporations. However, this kind of equalizing rationale had been ruled unconstitutional in Buckley. Additionally, corporations reflected the association of people, so this infringed on the First Amendment right to associate as well.

McDonnell was also partially overruled. The Court found no state interest to justify limiting independent expenditures by corporations. Following a similar line of reasoning to the Buckley case, the Court held that independent expenditures did not create or give the appearance of corruption. With Austin also overruled, there was no reason to specifically limit independent expenditures by corporations either. Without any state interest left remaining, the ban was struck down as unconstitutional.

The Court did uphold one portion as constitutional – the disclosure requirements. Disclosure can be a burden on speech, and the Court analyzed it under a standard which required a substantial relation between the restriction (disclosure) and the significant government interest. Since disclosures do not limit expenditure or contributions and do not prevent speech and also serve the significant interest of keeping the electorate informed, the Court found this provision to be constitutionally acceptable.

This trend towards deregulating finance most recently continued in the 2014 decision McCutcheon v. Federal Elections Commission. This time, aggregate contribution limits were being challenged. Aside from base limits to how much money a person can donate to a candidate, there were also limits to the total amount of money a donor could give to all candidates in total. Several prospective donors challenged this, claiming it in infringed on their First Amendment rights. The plurality held that the only permissible regulation of speech in regards to elections and campaign finance were those which served the compelling government interest in stopping “quid pro qou corruption.” After analyzing the statute, the Court determined that limiting the totals did not aid in this interest and also infringed too heavily on speech, making it unconstitutional. The plurality reasoned that since Congress established a max amount that can be given to a single candidate, then anything within that limit posed no threat of corruption. Without a limit to the total donations, each candidate can still only receive the base maximum allowed. Restricting the total would only limit the number of candidates a person could donate too – restricting their speech and political association – yet would have no effect on the base limit or quid pro quo corruption.

The dissent, written by the liberals of the court, argued for a wider view of corruption – that focusing on quid pro quo corruption was far too narrow. Removing the aggregate limit allows single donors to donate vast amounts of money to a political party, regardless of individual candidate limits. Combined with the earlier Citizens United decision, the dissenters said this decision “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

Buckley v. Valeo (1976)Austin v. Michigan Chamber of Commerce (1990)

McConnell v. Federal Elections Commission (2003)

Citizens United v. Federal Election Commission (2010)

McCutcheon v. FEC (2014)

RESOURCES