Balancing Campaign Finance Reform against the First Amendment

By Yang, Elizabeth M. | Social Education, September 2000 | Go to article overview

Balancing Campaign Finance Reform against the First Amendment


Yang, Elizabeth M., Social Education


CURRENT LAWS governing campaign finance in the United States were born of the notion that the undue influence of money in the electoral process runs contrary to the nation's ideals of democracy and equal participation by all in the political process. These concerns continue to form the regulation of campaign finance.

Under federal law, labor organizations and business corporations are prohibited from making any contributions or expenditures from their respective general treasury funds in connection with federal elections.(1)This prohibition of direct corporate involvement was begun in 1907 with the passage of the Tillman Act,(2) and labor organizations were similarly banned from the process in 1947 by the Taft-Hartley Act.(3) In 1971, the Federal Election Campaign Act (FECA) was adopted by Congress in an effort to require full disclosure of campaign contributions and expenditures in federal elections. In 1974, Congress amended the FECA by imposing contribution limits on individuals, political parties, and political action committees (PACs).(4)

Constitutional Considerations

The rationale of preventing corruption or the appearance of corruption in the electoral process is valid, but as lawmakers work to effect the passage of such legislation they must also take certain constitutional requirements into consideration-those of the First Amendment. A primary tenet of the First Amendment is to protect and encourage the rights of individuals and organizations to participate in our civic process. This unfettered ability to be involved in the political system, openly and without fear of reprisal, is an important privilege that should not be taken lightly.

Past and present court decisions have continued to uphold the First Amendment as a safeguard for unconstrained dialogue and debate related to governmental affairs. In the landmark decision of Buckley v. Valeo, the Supreme Court held that the right of individuals to make campaign contributions or expenditures is a clearly protected First Amendment right.(5) Our fundamental rights of free speech and association in the political system are an integral part of this nation's democratic process.

While the underlying concept of freedom of speech is frequently raised, very often the remaining corollary argument is forgotten; namely, that the ability of the government to regulate privileges bestowed by the First Amendment is severely limited. The Supreme Court has consistently held that, "`[w] hen a law burdens core political speech,' the law should be upheld `only if it is narrowly tailored to serve an overriding state interest.'"(6) Clearly, in situations involving participation in the political process, the role of the government as the protector of the rights and privileges embodied in the Constitution must be weighed to the appropriate standard against its role as a regulator of the political process. Any and all campaign finance reform must be clearly framed in this context.

The Current State of Regulation

The methods of financing and running campaigns have changed a great deal since the inception of the FECA and its subsequent amendments. While spending on federal campaigns has tripled in the last twenty years, contribution limits that were established in 1974 remain in place and have never been raised or indexed for inflation. In the 1996 presidential election campaign cycle, $2.7 billion was spent and the parties collected more than $250 million dollars in soft money-three times more than in 1992. Questionable fundraising methods and the vast amounts of money being collected and spent on the campaign process have created a system that has caused the public to lose confidence with regard to those involved in the political process and the electoral process itself.

This disillusionment has led to varying campaign finance reform plans. The major component in all the plans revolves around the definition of federal election activity. …

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