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"At a time when concerns about the conduct of judicial elections have reached a fever pitch ... the Court today unleashes the floodgates of corporate and union general treasury spending in these races."
Justice John Paul Stevens, in Citizens United v. FEC, Jan. 21, 2010

The Supreme Court and the Constitutionality of Campaign Finance Law

The Supreme Court and the Constitutionality of Campaign Finance Law
An Issues Backgrounder from Justice at Stake

In recent years, campaign finance laws have faced numerous legal challenges. Citizens United v. Federal Election Commission is the latest U.S. Supreme case to raise a basic question: Do campaign laws that seek to limit special-interest influence violate freedom of speech guarantees?   

On multiple occasions, the Supreme Court has ruled that properly tailored campaign laws are consistent with the First Amendment. While certain provisions have been struck down, the court has upheld most campaign finance rules it has reviewed since 1976.

In Citizens United, the court is considering whether to overturn laws that bar the use of corporate treasury funds to support or oppose candidates in federal elections. Here is a summary of key campaign finance cases leading up to Citizens United:

Buckley v. Valeo (1976)

With a few exceptions, the Supreme Court ruled that Congress’s sweeping post-Watergate campaign finance law did not violate First Amendment free-speech protections. The court upheld contribution limits, which specify how much individuals, political action committees and other entities can give to a candidate. And it upheld disclosure laws, saying they “serve substantial governmental interests in informing the electorate and preventing the corruption of the political process.”

The high court said groups mounting “independent” campaigns—not formally coordinated with a candidate whom a group might support—could be regulated if their effort “expressly advocates the election or defeat of a clearly identified candidate.” The court invalidated ceilings set by law on overall campaign expenditures, on independent expenditures, and on the expenditures a candidate may make from his personal funds.

Austin v. Michigan Chamber of Commerce (1990)

The Supreme Court said Michigan could bar corporations from using general treasury funds to pay independently for ads supporting or opposing candidates.  The Chamber of Commerce’s right to political expression, the court said, could be limited by Michigan’s “compelling state interest” in “preventing corruption” through a law aimed at the “distorting and corrosive effects” of corporate expenditures in elections.

McConnell v. Federal Election Commission (2003)

In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA)—also known as McCain-Feingold--to protect elections from corruption. In 2003, the Supreme Court upheld most of the law, including a prohibition on corporate or union treasury dollars to fund “electioneering communications.” These are ads referring to a specific federal candidate that are broadcast 30 days before a primary or 60 days before a general election. Also upheld was a requirement for disclosure of the ads’ funders.

The court also reaffirmed its holding in Austin v. Michigan Chamber of Commerce.

Randall v. Sorrell (2006)

The Supreme Court ruled that exceptionally low campaign contribution limits in Vermont were unconstitutional. It said the state’s expenditure limits violated the First Amendment.

Federal Election Commission v. Wisconsin Right to Life II (2007)

The Supreme Court narrowed the McCain-Feingold restriction on corporate and union treasury funds. The provision, the court said, applies only to ads that “expressly advocate” for the election or defeat of a federal candidate, or to ads that obviously are intended to do that. Three justices argued unsuccessfully for overruling Austin and McConnell.

Davis v. Federal Election Commission (2008)

A provision from the McCain-Feingold law, boosting contribution limits for candidates if a wealthy opponent spends more than $350,000 in personal funds, was challenged. The Supreme Court struck down the provision. Justice Alito, writing the majority opinion, also attacked the rationale of Austin.

Duke v. Leake (petition for certiorari denied by U.S. Supreme Court) (2008)

In 2002, North Carolina passed landmark legislation to become the first state offering voluntary public financing for appellate judicial campaigns. The Fourth U.S. Circuit Court of Appeals upheld the constitutionality of the public financing system in 2008, saying, “The concern for promoting and protecting the impartiality and independence of the judiciary…dates back at least to our nation’s founding.” The provisions “to protect this vital interest in an independent judiciary,” the appeals court said, “are within the limits placed on the state by the First Amendment.”
The U.S. Supreme Court declined to hear a challenge to that decision, leaving intact both the ruling and North Carolina’s public financing system.      

Citizens United v. Federal Election Commission

In Citizens United, the court has considered whether the First Amendment bars restrictions on corporate spending in U.S. elections, and whether to overrule portions of Austin and McConnell that authorize such bans. It also has considered a challenge to the McCain-Feingold law’s financial disclosure rules for “electioneering communications.”

Justice at Stake has compiled a fact sheet about the history of the Citizens United case and filed an amicus brief in the case. Other amicus briefs, from both sides of the issue, are available from the Federal Election Commission Web site.

Click here for a PDF copy of this fact sheet.

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Justice at Stake is a nonpartisan, nonprofit campaign with more than 50 partners, working to keep America’s courts fair and impartial. Justice at Stake Campaign partners work for reforms to keep politics and special interests out of the courtroom—so judges can do their job of protecting our Constitution, our rights and the Rule of law. For more about Justice at Stake, go to www.justiceatstake.org, or www.gavelgrab.org.

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Contact: Laurie Kinney, 202-588-9454

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