During the oral arguments prior to the Supreme Court decision Citizens United v. FEC, Solicitor General Elena Kagan's deputy Malcolm Stewart was asked by Chief Justice John Roberts if under current election law the federal government could ban a book funded by a corporation engaged in political advocacy. Stewart said this wouldn't happen if the corporation paid for the book through a political action committee. “And if they didn’t, you could ban it?” asked Roberts. Stewart replied "If they didn’t, we could prohibit publication of the book". The resulting 5-4 decision in 2010 became one of the most controversial Supreme Court decisions of the 21st century, not because the court upheld censorship but because it didn't. Public opinion does not think of spending to influence politics as free speech, and would be surprised to think of banning books as falling under campaign finance regulation. Barack Obama in his 2010 State of the Union address declared that the Supreme Court “reversed a century of law that I believe will open the floodgates for special interests...to spend without limit in our elections". It is from this angle, of money as an illegitimate means of expressing political opinions, that prevents most of the public from seeing campaign spending as a form of free speech falling under the purview of civil liberties. This essay will argue that spending money to influence politics is a form of free speech protected by the first amendment.
Spending on campaigns to elect candidates or influence the results has been around as long as there have been elections. However federal laws regulating spending in politics did not come about until the twentieth century. Theodore Roosevelt as a leader of the progressive movement of the early twentieth century in his 1905 State of the Union asked congress for legislation to forbid corporate contributions directly to candidates. This became the Tillman of 1908, the first campaign finance limitation on organizations outside of the government. Now corporations and nationally chartered banks were prohibited from making direct contributions to federal candidates. Congress extended these provisions to labor unions in the 1940s with the Smith-Connally Act and the Taft-Hartley Act.
The doctrine that money should be seen as free speech didn't emerge until the 1970's. In 1971 a Democratic Congress under Richard Nixon passed the Federal Electoral Campaign Act. Over President Gerald Ford’s veto in the wake of the Watergate scandal Congress passed several amendments in 1974. The 1974 FECA amendments included a limitation on candidate expenditures from their own money. This was challenged before the Supreme Court in Buckley v. Valeo in 1976, brought by New York Senator James Buckley against Francis Valeo representing the FEC. By a 7-1 vote, the Court invalidated the restrictions on expenditures under the First Amendment. The majority opinion declared that "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". Contribution limits for donors were upheld as“only a marginal restriction upon the contributor's ability to engage in free communication." Buckley altered the purpose of regulation of money in politics to be "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office." Corruption only occurred due to "large contributions ... given to secure a political quid pro quo from current and potential office holders”, which justifies contribution limits for donors. Most recently in 2014, the Supreme Court struck down total contribution limits, not for individual candidates but in aggregate spending, in McCutcheon v. FEC. Before, individuals could give up to$48,600 to 18 candidates per election cycle (Sullivan 2014). The limitations upheld in Buckley would themselves be challenged using the language of Buckley.
After Buckley, federal election laws changed drastically. Congress made further amendments to the FECA in 1976 and 1979 in response to First National Bank of Boston v. Bellotti to create the division between hard money that is given directly to a candidate which is highly regulated and soft money not given directly to support a candidate which have few restrictions. In 1978 First National Bank of Boston v. Bellotti applied first amendment rights to corporations investing in state-level ballot initiatives. The Massachusetts statute prohibiting the expenditure of corporate funds for influencing voters’ opinions infringed on the corporations’ “protected speech in a manner unjustified by a compelling state interest.” Bellotti said that such laws restrict the information a voter has access to and limits free speech. The next series of seminal cases come in the wake of the Bipartisan Campaign Finance Reform Act of 2002, also called McCain-Feingold. The law restricted the ability of political parties to raise and spend soft money on elections, and restricted issue advocacy advertisements paid for by corporations and unions 30 days before a primary and 60 days before a general election. In 2003 the Supreme Court heard objections in McConnell v. FEC by plaintiff Mitch McConnell, the Senate Majority Whip for the Republican Party. The court upheld most of the legislation as preventing "both the actual corruption threatened by large financial contributions and... the appearance of corruption.” The majority opinion was that not all political speech is protected from government regulation. The majority however was 5-4 and composed of a diverse set of views from more liberal justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, John Paul Stevens, and swing vote Sandra Day O’Connor. Seven years later a majority would overturn parts of this decision.
Citizens United v. FEC is important not for originating the concept of money as speech but applying the concept to donors. At issue was the provision from McCain-Feingold which limited the time when campaign ads could play before an election. Citizens United is a non-profit, tax exempt, 501(c)(3) organization made to promote Conservative principles. They promote their agenda primarily by making documentaries. In early 2008 before the Democratic Party primary elections, it sought to run television commercials promoting its latest documentary Hillary: The Movie airing on DirecTV. The movie was highly critical of candidate Hillary Clinton, and could be described as an elongated version of a negative 30-second television spot. In January 2008, the United States District Court for D.C. ruled that the television advertisements for Hillary: The Movie violated the McCain-Feingold restrictions of campaign advertisements within 30 days of a primary. Dissatisfied with the ruling, Citizens United took it up with the Supreme Court. In a 5-4 decision, the majority ruled that Hillary the Movie could be shown, and that the McCain-Feingold provision was a limit on freedom of speech. The Court argued that because previous decisions had established that a right to free speech entailed spending money, limitations on independent spending by corporations and unions was unconstitutional. The restrictions did not survive strict scrutiny serving the previously established definitions of corruption, the legitimate state interest. Citizens United did not break new ground, the principles were established largely in the 1970s. Citizens United applied first amendment protections to independent expenditures, keeping in place the ban on direct corporate contributions established by the Tillman Act as well disclosure requirements.
Several arguments have been made against spending to influence a campaign qualifying as free speech. The most popular is that corporations are not people, that is having the same rights as individuals since they are legal entities created by governments and given privileges. Corporate personhood precedes Buckley v. Valeo, corporations were given some legal rights in 1819 in Dartmouth College v. Woodward and fourteenth amendment protections in Santa Clara County v. Southern Pacific Railroad in 1896. Further, the right to spend money on elections applies to non corporate entities like labor unions and political parties, as have restrictions. President Harry Truman’s veto message of the Taft-Hartley Act criticized the restrictions on union political contributions and expenditures as going to “prevent the ordinary union newspaper from commenting favorably or unfavorably upon candidates or issues in national elections. I regard this as a dangerous intrusion on free speech, unwarranted by any demonstration of need, and quite foreign to the stated purposes of this bill”.
The totality of arguments in favor of money as speech in politics is that the regulation of such activity engages in prior restraint of speech, viewpoint discrimination, does not induce corruption or the appearance of corruption, and does not serve a compelling government interest. Near v. Minnesota in 1931 established prior restraint as an unconstitutional limitation of speech. Prior restraint is when government approval is required for speech activity, which is what laws limiting campaign spending do as the funds are meant to be spent on information and advertising. Austin v. Michigan Chamber of Commerce in 1990 gave the argument that spending by corporations with more money than the average voter distorts the political system and prevents others from being heard, both corrupting the democratic nature of the system and making the public believe the system is in favor of big money, the appearance of corruption. Buckley and Citizens United argued against this on the basis that restricting speech removes other points of view that citizens can consider when making their opinions. Restrictions do not equalize speech, it prevents speech and so engages in viewpoint discrimination against the amount of money or nature of personhood of the speaker. First amendment cases, especially relating to political speech, require strict scrutiny which is met by three requirements; a compelling government interest, narrowly tailored, by the least restrictive means as established in United States v. Carolene Products 1938. Corruption by simply giving money to a candidate is not what is at issue with restrictions on donations and expenditures, but influence which in some way is what democratic government is about. We are supposed to be able to influence the government. Banning direct contributions from corporations and unions serves a legitimate government purpose, but spending on elections where voters ultimately decide is influence which is not decisive for who gets into office. Alternatives like matching funds or publicly funded elections have been upheld since Buckley as have disclosure requirements. These laws are tailored to prevent quid pro quo corruption and maintain public trust.
Money should be seen as relevant to the question of the first amendment’s protection of freedom of speech and its exercise by individuals and associations of individuals. The First Amendment states that “Congress shall make no law... abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” That the Supreme Court has in recent decades been more skeptical of limitations on activity related political speech follows the trajectory of a Court more involved in controversial issues, for better or worse. A kind of Pandora’s Box has been opened for both sides of the political debate about what constitutes civil rights and liberties, which in turn decides whether the judiciary becomes involved with what previously belonged to legislators. In light of these developments, one should be able to understand the argument on behalf of spending to influence politics as relevant to freedom of speech.
(Essay for my Civil Rights/Civil Liberties Class PLSI 315)
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