Campaign Finance Reform: A Sourcebook

By Anthony Corrado; Thomas E. Mann et al. | Go to book overview

CHAPTER 3
THE FIRST AMENDMENT AT WORK

Constitutional Restrictions on Campaign Finance Regulation

INTRODUCTION BY DANIEL R. ORTIZ

One would search the Constitution in vain for any mention of "campaign finance," let alone "contributions," "expenditures," "soft money," or any of the other specialized terms in the campaign finance vocabulary. Yet despite this silence, the U.S. Supreme Court has firmly and repeatedly held that the Constitution greatly limits what Congress and the states can do. Believing that campaign finance regulations restrict political expression and so implicate the First Amendment, which says only that "Congress shall make no law . . . abridging the freedom of speech," the Court has subjected them to searching review.

In Buckley v. Valeo ( 424 U.S. 1 [ 1976]; document 3.1), the first and most important of the campaign finance cases, the Supreme Court created a framework that still guides analysis in this area. Buckley concerned a challenge to many of the 1974 amendments to the Federal Election Campaign Act (document 2.9). The challengers attacked, among other things, the amendments' limitations on various forms of election spending. In deciding this group of challenges, the Court distinguished between contributions and expenditures--a distinction that, although widely criticized at the time (and since), has remained the most important feature of the legal landscape.

As defined by Buckley and the later cases, a contribution represents money completely given over to another entity, whether to a party, candidate campaign, or political action committee ( PAC). In other words, the donor retains no control over the use of the money; the entity receiving it decides how it will be spent. An expenditure, on the other hand, represents money controlled and spent directly by the spender. It may be spent on someone else's behalf, of course, and usually is, but the spender makes all the decisions over its use. If the spender should coordinate its use with a campaign, however, it will be treated as a contribution.

In Buckley, the Supreme Court found that these two different forms of campaign spending reflected quite different First Amendment concerns. In the Court's view, contributions conveyed only the fact that a donor supports a candidate, not why the donor supports him or her. As a result, Congress could broadly limit these contributions. So long as Congress did not restrict contributions so severely that it starved campaigns or blocked the basic signal of support, Congress had great freedom to regulate. By contrast, the Court found that regulating expenditures raised more serious First Amendment concerns. Since, to the Court's mind, expenditures (unlike contributions) did convey why a spender supports or opposes a candidate, limiting them would necessarily restrict the quantity and quality of political discourse. The Court therefore subjected expenditure limitations to the most searching constitutional review. Finding no governmental interest sufficient to justify them, the Court struck them down.

This finding that no sufficient state interest justified limiting individual expenditures has greatly shaped this whole area of law. In fact, this one small part of the discussion in Buckley has by itself doomed many reform proposals. In upholding in

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