Freedom vs Equality: Considering the Relationship Between Campaign Finance Reform and the First Amendment

Freedom vs Equality: Considering the Relationship Between Campaign Finance Reform and the First Amendment

Campaign finance reform: a pillar of  debate in United States politics for over a century. For just as long, voters intensely debated this controversial topic. Scholarly discussion on nearly every aspect of reform increased in the years following the Federal Election Campaign Act in 1971, and major amendments to it in 1974. Subsequent court cases altered or validated campaign finance laws to varying degrees. One of the most pressing questions arising from this legal ping pong is the ongoing debate over the constitutionality of limits on two pillars of campaign finance policy: contributions and expenditures.  The First Amendment is a keystone of American democracy, and viewpoints from different sides of the debate elucidate the relationship between the constitution specifically, the First Amendment, and campaign finance reform, beginning with scholarly work focusing on the landmark case Buckley v. Valeo, then progress through opinions post Citizens United v. FEC.  

The Federal Election Commission defines a contribution as “a gift, subscription, loan, advance or deposit of money or anything of value given to influence a federal election; or the payment by any person of compensation for the personal services of another person if those services are rendered without charge to a political committee for any purpose,” and  an expenditure as “a purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value made for the purpose of influencing a federal election. A written agreement to make an expenditure is also considered an expenditure.”  In passing FECA in 1971 and it’s major amendments in 1974, Congress sought to limit the amount of money in politics – to level the playing field. They also attempted to halt ‘quid pro quo’ arrangements by limiting both contributions and expenditures. The 1974 FECA amendments came on the heels of Watergate, a time of heightened concern over the potentially corrupting nature of campaign contributions and fundraising.

In 1976, the Supreme Court heard Buckley v Valeo, which brought the First Amendment to the forefront of the campaign finance conversation. The case challenged the constitutionality of the contribution and expenditure limits set in FECA ’74.  In their decision, the Court equated money with speech, which is protected under the First Amendment to the Constitution. It also made a distinction between different levels of corruption, which they said may result from different amounts of contributions or expenditures. When a contribution is made, an exchange of money takes place therefore a higher risk of corruption is present, where expenditures are made independent of a campaign - people spend in isolation. Directly addressing the constitutionality in their opinion, the Court wrote,

“The Act's contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people…The Act's contribution and expenditure limitations also impinge on protected associational freedoms.”

To conclude, the Court added, “although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.” In summary, it is acceptable to limit freedom of speech in giving money but not in how money is spent.  

The Buckley decision remains a cornerstone in the debate over the constitutionality of contribution/expenditure limits on both sides of the issue. During the 1980s, in the wake of Buckley, J. Skelly Wright, former Chief Judge of United States Court of Appeals for the District of Columbia Circuit, calls the Buckley ruling a “serious obstacle in the path of our society's advancement toward political equality through law,” and a “vitally important and, in [his] judgment, tragically misguided First Amendment decision.” More specifically, Wright declares that in “equating spending with speech, the Court treated the First Amendment as a near-absolute in the sphere of political debate.” This is, of course, not an unchallenged opinion. Wright’s contemporary Martin Redish, a professor of law at Northwestern University, provides an opposing consideration of the Buckley case, concluding that the Court was right to strike down some of the limits set by FECA as “by limiting spending, such regulation decreases the flow of information which might produce better informed voters and thus undermines important First Amendment values.” Wright and Redish also disagree over what exactly the First Amendment protects.

A key part of the Buckley decision lies in the Court telling the government that it should not attempt to level the political playing field, which was one of the intentions of FECA. The Court famously states in their decision, “the 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.” Opposing this, Wright believes “democracy is often shadowed by lopsided inequalities in campaign resources” and “the predominance of money comes at the expense of the ideals of liberty and equality that underlie our political system.” Redish is less certain on this point, providing a devil’s advocate stance on the matter, positing that “important values other than equality are at work in First Amendment analysis and that, on occasion, these values may even clash with the equality principle.”  He expands on this, with the idea that limits on contributions and expenditures with the intention of normalizing those with significant financial resources are:

“not necessarily unconstitutional, for the benefits of ‘purifying’ political campaigns and equalizing candidate access to the public may outweigh the resulting harms to free speech interests. The outcome of the conflict is, for present purposes, irrelevant. Whatever the outcome, the equality principle and the values furthered by free expression directly conflict...”

Redish notes this important idea that because the Supreme Court’s decision in Buckley equated money with speech, an intersection formed between freedom of speech and the equality principle.

Scholars continued to address this tension in the 1990s,  with Gary Stein proposing that “the theoretical conflicts [between First Amendment freedoms and reform efforts] are largely reconcilable…coexistence between the First Amendment and effective campaign-finance reform is constitutionally permissible.” Fred Wertheimer and Susan Weiss concur, citing that the Supreme Court “recognized this when it upheld the constitutionality of campaign finance contribution limits in Buckley.” Wertheimer and Weiss point to the Buckley opinion, which itself states it is “unnecessary to look beyond the Act’s primary purpose,” which is “to limit the actuality and appearance of corruption…in order to find a constitutionally sufficient justification for the $1,000 contribution limitation.” In this case, the authors draw a comparison between a lack of corruption in politics and political equality.  The idea that while freedom is speech and speech is nearly unrestricted, preventing corruption will further political equality in the same way that restricting someone from yelling ‘fire!’ in a crowded theater promotes safety.

This argument for the constitutionality of contribution limits is partially echoed by David A. Strauss, who both reinforces and scrutinizes the validity of such limits based on their intended effects, saying that “in fact it is far from clear that campaign finance reform is about the elimination of corruption at all.” He further explains, “corruption-understood as the implicit or explicit exchange of campaign contributions for official action-is a derivative problem,” and therefore, “those who say they are concerned about corruption are actually concerned about two other things: inequality, and the nature of democratic politics.” In this analysis, the Court actually qualified government intervention to ‘level the playing field’ in the Buckley decision by limiting contributions on the basis of limiting corruption which Strauss views as an extension of inequality. On this thread, Strauss concludes that corruption “is not in itself an appropriate target of campaign finance reform,” because it is an outgrowth of inequality and interest group politics, and appropriate reform will seek to address these root issues.

An interesting counter to Strauss’ connection between corruption, equality and democratic politics is offered by lobbyist Scott Harhbarger, “the effort to end unlimited campaign contributions is a fundamental civil rights issue…we need to make it just as clear what we stand for: reclaiming our democracy.” In The Fallacy of Campaign Finance Reform, John Samples describes limits on contributions as a “reason for lamentation, not rejoicing.” He warns, “no one should exercise his or her First Amendment right to freedom of speech without advice from counsel, preferably one schooled in the intricacies of campaign finance regulation.” And leaves readers with his startling take on campaign finance laws, “In the United States, speech is no longer very free…” Samples delves deeply into the anti-limits ideal that money is speech, and speech must remain free:

“The First Amendment offers a classic statement of negative liberty: it enjoins the government from abridging individual freedom. It does not “empower” the individual to achieve some good. It does not give the individual the means to speak or to persuade others. It does not direct the government to use speech as a means to some social end.”

The recurring theme of the government overstepping to promote equality in the political arena is clearly present throughout Samples’ book.  

Samples devotes a considerable portion of the book to discussing the divergent Madisonian and Progressive schools of thought on the relationship between the First Amendment and campaign finance reform. Those on the Madison side favor no limits at all, but with full and immediate disclosure requirements, while Progressives advocate public financing of all campaigns and no private money allowed. The narrative Samples lays out is not unlike the current debate over the 2nd amendment and gun control laws.

The views of authors discussed to this point were all penned prior to the landmark case Citizens United v. FEC,  a ruling issued in 2010. As such, they focus heavily on the Buckley v. Valeo decision of 1976. The following selection of sources will also include analysis of the Buckley decision, but afford considerable allowance to the Citizens United case.

Citizens United v. FEC  incurred serious implications for scholars from all sides of the campaign finance reform arena. In the decision, while the Court denied corporations and labor unions the right to make explicit contributions, it does permit them to use treasury funds to finance independent expenditures. The holding is essentially that political spending is protected under the First Amendment as political speech, and therefore the government cannot restrict corporations and unions from exerting their right to free speech through limits on corporate/union independent expenditures.

In the wake of Citizens United, Floyd Abrams penned a novel in defense of the First Amendment. Abrams spent years arguing against restrictions on the Amendment, delving deeply into issues of campaign finance when he represented Senator Mitch McConnell in an unsuccessful challenge (by a 5–4 vote) to key elements of the Bipartisan Campaign Reform Act which they believed violated the First Amendment. He and Susan Buckley also submitted, during the 2010 Citizens United case, an amicus curiae (friend of the Court) brief on behalf of Senator McConnell to argue orally on his behalf. Abrams favors a broad reading of the First Amendment, “sometimes nearly absolutely so.” He repeatedly describes limits on campaign related finance issues as Congress, “turning political speech into a crime.”

Expanding on this ear-catching slogan, Abrams says, “political speech…has long been considered worthy of the highest degree of First Amendment protection.” It is, in fact, meant to do just that. Justice Elena Kagan summarized the argument Abrams and his colleagues made before the Supreme Court in 2010 as saying, “political speech is the highest form of speech under the First Amendment entitled to the greatest protection and that the courts should be wary of Congress regulating in this area in such a way as to protect incumbents to help themselves.”  In turn, Abrams cites Justice Anthony Kennedy’s decision in another case, United States v. Automobile Workers, in which Kennedy wrote, “first Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.” He continues this thread, “political speech must prevail against laws that would suppress it, whether by design or inadvertence… [the First Amendment] has its fullest and most urgent applications to speech uttered during a campaign for political office.” Following his broad analysis of the perils of campaign law infringing on First Amendment protections, Abrams moved on to specific areas of such laws which he believes pose the most concerning threats to freedom of speech.

Abram identifies limits on contributions by anyone, including corporations, and statutes restricting close-to-election speech as particularly worrisome. He calls for the public to carefully examine the cost of restrictions on political speech required for almost all proposed campaign finance reform, and the ‘inherent’ constitutional dangers they present. Abram expresses his bewilderment with public outcry following the Citizens United decision, “what I find inexplicable is the willingness of so many not even to acknowledge, let alone weigh, the powerful First Amendment interests at all.” He concludes his argument on the antagonistic relationship between the First Amendment and campaign finance reform by calling limits on political spending or speech as  “an approach which views the First Amendment as an impediment as opposed to a protection, as a disagreeable, painful limitation to be overcome, evaded or eluded rather than as a shield against the government.” This impassioned expression of his views is paralleled in enthusiasm, if not in opinion by Robert Post.

Post, a constitutional law scholar and former dean of Yale Law school, offers his novel in the form of two lectures, followed by commentary from fellow scholars, and concluding with Post’s response. The arguments proposed by Post within this work are particularly interesting because he refutes both pro-regulation claims that the First Amendment supports equality and anti-regulation views that the First Amendment lends itself only to the freest forms of speech. He devotes Lecture I to a detailed – and argumentative – analysis of the history of attempts at campaign finance reform. Post begins with the Buckley v. Valeo decision, in which he says the Court tried to “...split the difference...” between the two issues at hand: freedom of speech and electoral integrity. They did this by creating an proposing an “...arbitrary distinction…” between campaign contributions and independent campaign expenditures. Limits on the former were intended to protect electoral integrity, while restrictions on the latter were prohibited to safeguard freedom of speech. He warns that this compromise is quickly disintegrating, because it “lacks theoretical structure…there is little to stop the slide into chaos.” Post argues that this chaos arises from the fundamental question raised by campaign finance discussions; how does the country reconcile “republican tradition with…our commitment to discursive democracy.”  

Post explains that campaign finance Court cases where the juxtaposition of these two American ideals is painfully present, specifically Citizens United, the Court was “forced to choose whether the nation’s commitment to self-governance would be better realized through institutions of representation or through the discursive democracy established by First Amendment rights.” The Court chose the latter path, even though, according to Post, “we have been committed to structures of representation for far longer than we have aspired to democratic self-government.”

The Court’s decision to protect representation over discursive democracy is particularly thought provoking for Post. He observes that in Citizens United “the Court applied First Amendment doctrine as though it were a repository of abstract and categorical rules,” and that because the Court “never asked what these rules are designed to accomplish, it could not begin to explain how discursive democracy might be connected to the representative integrity that campaign finance reform seeks to sustain.” Post continues to address the ambiguity of the First Amendment and the possible relationship between political speech and electoral integrity in Lecture II.

Weaving an intricate web of analysis, Post lays out his argument for the proper role of the First Amendment in campaign regulation. He states:

“First Amendment rights do not ensure that each citizen can exercise equal influence on government action. The First Amendment does not protect direct democracy; within discursive democracy, public opinion should not be analogized to an initiative. The point of First Amendment rights is instead to guarantee that each person is equally entitled to the possibility of democratic legitimation.  First Amendment rights institutionalize the hope that affording each person the opportunity to participate in public discourse can create the ‘communion of interests and sympathy of sentiments’ between persons and their government that is the foundation of self-government.”

Post’s presentation of the First Amendment centers on the idea that meaningful – not equal – participation is at the core of what the amendment means. This is in direct contradiction with the views of researcher David Strauss, who was discussed earlier in this paper. However, Post’s view clearly explains why he so vehemently opposes the Citizens United decision that gave free speech rights to corporations; he believes the corporations would use such rights to make a profit, as opposed to individual citizens who may use their political free speech to make an ideological or political position. Perhaps the only author discussed to do so, Post’s writings on the First Amendment offer a hopeful tone for the path forward – for a plausible balanced relationship between the true meaning of the First Amendment and representative integrity, via proper campaign finance reform.

While the arguments of authors presented thus far accept the Constitution as written, Senator Tom Udall of New Mexico penned a parallel plan. Udall describes the Buckley v. Valeo case as having “...laid the groundwork for  a broken system...” of campaign finance. He also condemns the Citizens United decision for putting “...the First Amendment rights of corporations  and other large organizations on par with those of individual citizens, opening the door to an unregulated influx of special interest campaign dollars.” Senator Udall advocates for an amendment to the Constitution, which he cautions should not be taken lightly.  However, he claims that comprehensive and viable campaign finance reforms will only be passed “...if there is a constitutional amendment which provides Congress with the authority to regulate all aspects of the campaign finance system.” Udall’s proposed amendment would not lay out the type of regulations passed by Congress of individual states, leaving room for debate, interpretation and change. He also discusses a more narrowly written amendment introduced by his colleague Senator Max Baucus (D-MT), which would address the issue of corporations having the same political speech rights as an individual person. Senator Udall holds that barring a constitutional amendment or reversal of the damaging Supreme Court precedent unlimited special interest money will continue to flood election campaigns, and influencing the outcomes of elections.

Over the course of this examination, the viewpoints of multiple scholars on the issue of campaign finance reform and the First Amendment have been examined. For the pro-regulatory side, J. Skelly Wright, Gary Stein, Fred Wertheimer and Susan Weiss Mane and Robert Post  argue for come form of regulations on campaign contributions and/or expenditures. Martin Redish, Scott Harshbarger, John Samples, Floyd Abrams argue degrees of the opposite: that such regulations are oppressive, illegal, and unconstitutional. Davis Strauss’ argument both viewpoints straddling a delicate and unique middle-ground, while Senator Tom Udall advocates a departure from the First Amendment the other authors all hold dear. All of these works exhibit the same obvious and deep respect for the First Amendment. Pro-regulation works tend to generally hold that the First Amendment supports equality in the political system, and that government intervention is necessary to preserve the integrity of America’s electoral process. Anti-regulation scholars broadly interpret money as speech, therefore validating the view that campaign contributions and expenditures are protected speech under the First Amendment.

Arguments continue in courts, classrooms and coffee-shops across the nation. Campaign finance is far from the only issue where clashing interpretations of the First Amendment lead to heightened tensions and legal uncertainty. Which side’s view will prevail? Currently, precedent backs the anti-regulation ideals money under the umbrella of protected political speech. However, it remains uncertain whether legislation or new court cases could pose a serious threat to this current interpretation.

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