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Annotation 15 - First Amendment

  Government as Regulator of the Electoral Process: Elections .-- Government has increasingly regulated the electoral system by which candidates are nominated and elected, requiring disclosure of contributions and expenditures, limiting contributions and expenditures, and imposing other regulations. 140 These regulations restrict freedom of expression, which comprehends the rights to join together for political purposes, to promote candidates and issues, and to participate in the political process. 141 The Court is divided with respect to many of these federal and state restrictions, but when government acts to bar or penalize political speech directly the Justices are united. Thus, when Kentucky attempted to void an election on the grounds that the winner's campaign promise to serve at a lower salary than that affixed to the office violated a law prohibiting candidates from offering material benefits to voters in consideration for their votes, the Court ruled unanimously that the state's action violated the First Amendment. 142 Similarly, California could not prohibit official governing bodies of political parties from endorsing or opposing candidates in primary elections. 143  

[Footnote 141] See, e.g., Mills v. Alabama, 384 U.S. 214, 218 -19 (1966); Buckley v. Valeo, 424 U.S. 1, 14 , 19 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 -78 (1978); Brown v. Hartlage, 456 U.S. 45, 52 -54 (1982).

[Footnote 142] Brown v. Hartlage, 456 U.S. 45 (1982). See also Mills v. Alabama, 384 U.S. 214 (1966) (setting aside a conviction and voiding a statute which punished electioneering or solicitation of votes for or against any proposition on the day of the election, applied to publication of a newspaper editorial on election day supporting an issue on the ballot); Vanasco v. Schwartz, 401 F. Supp. 87 (E.D.N.Y. 1975) (three-judge court), aff'd, 423 U.S. 1041 (1976) (statute barring malicious, scurrilous, and false and misleading campaign literature is unconstitutionally overbroad).

[Footnote 143] Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989). Cf. Burson v. Freeman, 112 S. Ct. 1846 (1992) (upholding Tennessee law prohibiting solicitation of votes and distribution of campaign literature within 100 feet of the entrance to a polling place; plurality found a ''compelling'' interest in preventing voter intimidation and election fraud).

In 1971 and 1974, Congress imposed new and stringent regulation of and limitations on contributions to and expenditures by political campaigns, as well as disclosure of most contributions and expenditures, setting the stage for the landmark Buckley v. Valeo decision probing the scope of protection afforded political activities by the First Amendment. 144 In basic unanimity, but with several Justices feeling that the sustained provisions trenched on protected expression, the Court sustained the contribution and disclosure sections of the statute but voided the limitations on expenditures. 145  

''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. . . . 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.'' 146 The expenditure of money in political campaigns may involve speech alone, conduct alone, or mixed speech-conduct, the Court noted, but all forms of it involve communication, and when governmental regulation is aimed directly at suppressing communication it matters not how that communication is defined. As such, the regulation must be subjected to close scrutiny and justified by compelling governmental interests. When this process was engaged in, the contribution limitations, with some construed exceptions, survived, but the expenditure limitation did not.

The contribution limitation was sustained as imposing only a marginal restriction upon the contributor's ability to engage in free communication, inasmuch as the contribution is a generalized expression of support for a candidate but it is not a communication of reasons for the support; ''the size of the contribution provides a very rough index of the intensity of the contributors' support for the candidate.'' 147 The political expression really occurs when the funds are spent by a candidate; only if the restrictions were set so low as to impede this communication would there arise a constitutional infringement. This incidental restraint upon expression may therefore be justified by Congress' purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions. 148  

Of considerable importance to the analysis of the validity of the limitations on contributions was the Court's conclusion voiding a section restricting to $1,000 a year the aggregate expenditure anyone could make to advocate the election or defeat of a ''clearly identified candidate.'' Though the Court treated the restricted spending as purely an expenditure it seems to partake equally of the nature of a contribution on behalf of a candidate that is not given to the candidate but that is spent on his behalf. ''Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or de feat of legislation.'' 149 The Court found that none of the justifications offered in support of a restriction on such expression was adequate; independent expenditures did not appear to pose the dangers of corruption that contributions did and it was an impermissible purpose to attempt to equalize the ability of some individuals and groups to express themselves by restricting the speech of other individuals and groups. 150  

Similarly, limitations upon the amount of funds a candidate could spend out of his own resources or those of his immediate family were voided. A candidate, no less than any other person, has a First Amendment right to advocate. 151 The limitations upon total expenditures by candidates seeking nomination or election to federal office could not be justified: the evil associated with dependence on large contributions was met by limitations on contributions, the purpose of equalizing candidate financial resources was impermissible, and the First Amendment did not permit government to determine that expenditures for advocacy were excessive or wasteful. 152  

Although the Court in Buckley upheld the Act's reporting and disclosure requirements, it indicated that under some circumstances the First Amendment might require exemption for minor parties able to show ''a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties.'' 153 This standard was applied both to disclosure of contributors' names and to disclosure of recipients of campaign expenditures in Brown v. Socialist Workers '74 Campaign Committee, 154 in which the Court held that the minor party had established the requisite showing of likely reprisals through proof of past governmental and private hostility and harassment. Disclosure of recipients of campaign expenditures, the Court reasoned, could not only dissuade supporters and workers who might receive reimbursement for expenses, but could also dissuade various entities from performing routine commercial services for the party and thereby ''cripple a minor party's ability to operate effectively.'' 155  

Outside the context of contributions to candidates, however, the Court has not been convinced of the justifications for limiting such uses of money for political purposes. Thus, a municipal ordinance regulating the maximum amount that could be contributed to or accepted by an association formed to take part in a city referendum was invalidated. 156 While Buckley had sustained limits on contributions as a prophylactic measure to prevent corruption or its appearance, no risk of corruption was found in giving or receiving funds in connection with a referendum. Similarly, the Court invalidated a criminal prohibition on payment of persons to circulate petitions for a ballot initiative. 157  

Venturing into the area of the constitutional validity of governmental limits upon political spending or contributions by corporations, a closely-divided Court struck down a state law that prohibited corporations from expending funds in order to influence referendum votes on any measure save proposals that materially affected corporate business, property, or assets. The free discussion of governmental affairs ''is the type of speech indispensable to decisionmaking in a democracy,'' the Court said, ''and this is no less true because the speech comes from a corporation rather than an individual'' 158 It is the nature of the speech, not the status of the speaker, that is relevant for First Amendment analysis, thus allowing the Court to pass by the question of the rights a corporate person may have. The ''materially affecting'' requirement was found to be an impermissible proscription of speech based on content and identity of interests. The ''exacting scrutiny'' that restrictions on speech must pass was not satisfied by any of the justifications offered and the Court in any event found some of them impermissible.

Bellotti called into some question the constitutionality of the federal law that makes it unlawful for any corporation or labor union ''to make a contribution or expenditure in connection with any election'' for federal office or ''in connection with any primary election or political convention or caucus held to select candidates'' for such office. 159 Three times the opportunity has arisen for the Court to assess the validity of the statute and each time it has passed it by. 160 One of the dissents in Bellotti suggested its application to the federal law, but the Court saw several distinctions. 161  

Other aspects of the federal provision have been interpreted by the Court. First, in FEC v. National Right to Work Committee, 162 the Court unanimously upheld section 441b's prohibition on corporate solicitation of money from corporate nonmembers for use in federal elections. Relying on Bellotti for the proposition that government may act to prevent ''both actual corruption and the appearance of corruption of elected representatives,'' the Court concluded that ''there is no reason why . . . unions, corporations, and similar organizations [may not be] treated differently from individuals.'' 163 However, an exception to this general principle was recognized by a divided Court in FEC v. Massachusetts Citizens for Life, Inc., 164 holding the section's independent expenditure limitations (not limiting expenditures but requiring only that such expendi tures be financed by voluntary contributions to a separate segregated fund) unconstitutional as applied to a corporation organized to promote political ideas, having no stockholders, and not serving as a front for a ''business corporation'' or union. One of the rationales for the special rules on corporate participation in elections--elimination of ''the potential for unfair deployment of [corporate] wealth for political purposes''--has no applicability to such a corporation ''formed to disseminate political ideas, not to amass capital.'' 165 The other principal rationale--protection of corporate shareholders and other contributors from having their money used to support political candidates to whom they may be opposed--was also deemed inapplicable. The Court distinguished National Right to Work Committee because ''restrictions on contributions require less compelling justification than restrictions on independent spending,'' and also explained that, ''given a contributor's awareness of the political activity of [MCFL], as well as the readily available remedy of refusing further donations, the interest protecting contributors is simply insufficient to support Sec. 441b's restriction on . . . independent spending.'' 166 What the Court did not address directly was whether the same analysis could have led to a different result in National Right to Work Committee. 167  

Clarification of Massachusetts Citizens for Life was afforded by Austin v. Michigan State Chamber of Commerce, 168 in which the Court upheld application to a nonprofit corporation of Michigan's restrictions on independent expenditures by corporations. The Michigan law, like federal law, prohibited such expenditures from corporate treasury funds, but allowed them to be made from separate ''segregated'' funds. This arrangement, the Court decided, serves the state's compelling interest in assuring that corporate wealth, accumulated with the help of special advantages conferred by state law, does not unfairly influence elections. The law was sufficiently ''narrowly tailored'' because it permits corporations to make independent political expenditures through segregated funds that ''accurately reflect contributors' support for the corporation's political views.'' 169 Also, the Court concluded that the Chamber of Commerce was unlike the MCFL in each of the three distinguishing features that had justified an exemption from operation of the federal law. Unlike MCFL, the Chamber was not organized solely to promote political ideas; although it had no stockholders, the Chamber's members had similar disincentives to forego benefits of membership in order to protest the Chamber's political expression; and, by accepting corporate contributions, the Chamber could serve as a conduit for corporations to circumvent prohibitions on direct corporate contributions and expenditures. 170  

  Government as Regulator of the Electoral Process: Lobbying .-- Inasmuch as legislators may be greatly dependent upon representations made to them and information supplied to them by interested parties, legislators may desire to know what the real interests of those parties are, what groups or persons they represent, and other such information. But everyone is constitutionally entitled to write his congressman or his state legislator, to encourage others to write or otherwise contact legislators, and to make speeches and publish articles designed to influence legislators. Conflict is inherent. In the Federal Regulation of Lobbying Act, 171 Congress by broadly phrased and ambiguous language seemed to require detailed reporting and registration by all persons who solicited, received, or expended funds for purposes of lobbying, that is to influence congressional action directly or indirectly. In United States v. Harriss, 172 the Court, stating that it was construing the Act to avoid constitutional doubts, 173 interpreted covered lobbying as meaning only direct attempts to influence legislation through direct communication with members of Congress. 174 So construed, the Act was constitutional; Congress had ''merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose,'' and this was simply a measure of ''self-protection.'' 175  

Other statutes and governmental programs affect lobbying and lobbying activities. It is not impermissible for the Federal Government to deny a business expense tax deduction for money spent to defeat legislation which would adversely affect one's business. 176 But the antitrust laws may not be applied to a concert of business enterprises that have joined to lobby the legislative branch to pass and the executive branch to enforce laws which would have a det rimental effect upon competitors, even if the lobbying was conducted unethically. 177 On the other hand, allegations that competitors combined to harass and deter others from having free and unlimited access to agencies and courts by resisting before those bodies all petitions of competitors for purposes of injury to competition are sufficient to implicate antitrust principles. 178  

  Government as Regulator of Labor Relations .--Numerous problems may arise in this area, 179 but the issue here considered is the balance to be drawn between the free speech rights of an employer and the statutory rights of his employees to engage or not engage in concerted activities free of employer coercion, which may well include threats or promises or other oral or written communications. The Court has upheld prohibitions against employer interference with union activity through speech so long as the speech is coercive, 180 and that holding has been reduced to statutory form. 181 Nonetheless, there is a First Amendment tension in this area, with its myriad variations of speech forms that may be denominated ''predictions,'' especially since determination whether particular utterances have an impermissible impact on workers is vested with an agency with no particular expertise in the protection of freedom of expression. 182  


[Footnote 140] The basic federal legislation regulating campaign finances is spread over several titles of the United States Code. The relevant, principal modern laws are the Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, and the Federal Election Campaign Act Amendments of 1979, 93 Stat. 1339, 2 U.S.C. 431 et seq., and sections of Titles 18 and 26. The Federal Corrupt Practices Act of 1925, 43 Stat. 1074, was upheld in Burroughs v. United States, 290 U.S. 534 (1934), but there was no First Amendment challenge. All States, of course, extensively regulate elections.

[Footnote 141] See, e.g., Mills v. Alabama, 384 U.S. 214, 218 -19 (1966); Buckley v. Valeo, 424 U.S. 1, 14 , 19 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 -78 (1978); Brown v. Hartlage, 456 U.S. 45, 52 -54 (1982).

[Footnote 142] Brown v. Hartlage, 456 U.S. 45 (1982). See also Mills v. Alabama, 384 U.S. 214 (1966) (setting aside a conviction and voiding a statute which punished electioneering or solicitation of votes for or against any proposition on the day of the election, applied to publication of a newspaper editorial on election day supporting an issue on the ballot); Vanasco v. Schwartz, 401 F. Supp. 87 (E.D.N.Y. 1975) (three-judge court), aff'd, 423 U.S. 1041 (1976) (statute barring malicious, scurrilous, and false and misleading campaign literature is unconstitutionally overbroad).

[Footnote 143] Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989). Cf. Burson v. Freeman, 112 S. Ct. 1846 (1992) (upholding Tennessee law prohibiting solicitation of votes and distribution of campaign literature within 100 feet of the entrance to a polling place; plurality found a ''compelling'' interest in preventing voter intimidation and election fraud).

[Footnote 144]   424 U.S. 1 (1976).

[Footnote 145] The Court's lengthy opinion was denominated per curiam, but five Justices filed separate opinions.

[Footnote 146] Id. at 14, 19.

[Footnote 147] Id. at 21.

[Footnote 148] Id. at 14-38. Chief Justice Burger and Justice Blackmun would have struck down the contribution limitations. Id. at 235, 241-46, 290. See also California Medical Ass'n v. FEC, 453 U.S. 182 (1981), sustaining a provision barring individuals and unincorporated associations from contributing more than $5,000 per year to any multicandidate political action committee, on the basis of the standards applied to contributions in Buckley; and FEC v. National Right to Work Committee, 459 U.S. 197 (1982), sustaining a provision barring nonstock corporations from soliciting contributions from persons other than their members when the corporation uses the funds for designated federal election purposes.

[Footnote 149] Id. at 48.

[Footnote 150] Id. at 39-51. Justice White dissented. Id. at 257. In an oblique return to the right-privilege distinction, the Court agreed that Congress could condition receipt of public financing funds upon acceptance of expenditure limitations. Id. at 108-09. In Common Cause v. Schmitt, 512 F. Supp. 489 (D.C. 1980), aff'd by an equally divided Court, 455 U.S. 129 (1982), a provision was invalidated which limited independent political committees to expenditures of no more than $1,000 to further the election of any presidential candidate who received public funding. An equally divided affirmance is of limited precedential value. When the validity of this provision, 26 U.S.C. Sec. 9012(f), was again before the Court in 1985, the Court invalidated it by vote of 7-2. FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985). In an opinion by Justice Rehnquist, the Court determined that the governmental interest in preventing corruption or the appearance of corruption was insufficient justification for restricting the First Amendment rights of committees interested in making independent expenditures on behalf of a candidate, since ''the absence of prearrangement and coordination undermines the value of the expenditure to the candidate, and thereby alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.'' Id. at 498. See also Colorado Republican Campaign Comm. v. FEC, 116 S. Ct. 2309 (1996) (the First Amendment bars application of the Party Expenditure Provision of the Federal ElectionCampaign Act, 2 U.S.C. Sec. 441a(d)(3), to expenditures that the political party makes independently, without coordination with the candidate).

[Footnote 151] Id. at 51-54. Justices Marshall and White disagreed with this part of the decision. Id. at 286.

[Footnote 152] Id. at 54-59. The reporting and disclosure requirements were sustained. Id. at 60-84. See supra, pp.1063-64.

[Footnote 153]   424 U.S. at 74 .

[Footnote 154]   459 U.S. 87 (1982).

[Footnote 155] Id. at 97-98.

[Footnote 156] Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1980). It is not clear from the opinion whether the Court was applying a contribution or an expenditure analysis to the ordinance, see id. at 301 (Justice Marshall concurring), or whether in this context it makes any difference.

[Footnote 157] Meyer v. Grant, 486 U.S. 414 (1988).

[Footnote 158] First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). Justice Powell wrote the opinion of the Court. Dissenting, Justices White, Brennan, and Marshall argued that while corporations were entitled to First Amendment protection, they were subject to more regulation than were individuals, and substantial state interests supported the restrictions. Id. at 802. Justice Rehnquist went further in dissent, finding no corporate constitutional protection. Id. at 822.

[Footnote 159] 2 U.S.C. Sec. 441b. The provision began as Sec. 313 of the Federal Corrupt Practices Act of 1925, 43 Stat. 1074, prohibiting contributions by corporations. It was made temporarily applicable to labor unions in the War Labor Disputes Act of 1943, 57 Stat. 167, and became permanently applicable in Sec. 304 of the Taft-Hartley Act. 61 Stat. 159.

[Footnote 160] All three cases involved labor unions and were decided on the basis of statutory interpretation, apparently informed with some constitutional doubts. United States v. CIO, 335 U.S. 106 (1948); United States v. United Automobile Workers, 352 U.S. 567 (1957); Pipefitters v. United States, 407 U.S. 385 (1972).

[Footnote 161] First National Bank of Boston v. Bellotti, 435 U.S. 765, 811 -12 (1978) (Justice White dissenting). The Court emphasized that Bellotti was a referendum case, not a case involving corporate expenditures in the context of partisan candidate elections, in which the problem of corruption of elected representatives was a weighty problem. ''Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.'' Id. at 787-88 & n.26.

[Footnote 162]   459 U.S. 197 (1982).

[Footnote 163]   459 U.S. at 210 -11.

[Footnote 164]   479 U.S. 238 (1986). Justice Brennan's opinion for the Court was joined by Justices Marshall, Powell, O'Connor, and Scalia; Chief Justice Rehnquist, author of the Court's opinion in National Right to Work Comm., dissented from the constitutional ruling, and was joined by Justices White, Blackmun, and Stevens.

[Footnote 165]   479 U.S. at 259 .

[Footnote 166] Id. at 259-60, 262.

[Footnote 167] The Court did not spell out whether there was any significant distinction between the two organizations, NRWC and MCFL; Chief Justice Rehnquist's dissent suggested that there was not. See id. at 266.

[Footnote 168]   494 U.S. 652 (1990).

[Footnote 169] Id. at 660-61.

[Footnote 170] Id. at 661-65.

[Footnote 171] Ch. 753, 60 Stat 812, 839 (1946), 2 U.S.C. Sec. Sec. 261- 70.

[Footnote 172]   347 U.S. 612 (1954).

[Footnote 173] Id. at 623.

[Footnote 174] Id. at 617-624.

[Footnote 175] Id. at 625. Justices Douglas, Black, and Jackson dissented. Id. at 628, 633. They thought the Court's interpretation too narrow and would have struck the statute down as being too broad and too vague, but would not have denied Congress the power to enact narrow legislation to get at the substantial evils of the situation. See also United States v. Rumely, 345 U.S. 41 (1953).

[Footnote 176] Cammarano v. United States, 358 U.S. 498 (1959).

[Footnote 177] Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961). See also UMW v. Pennington, 381 U.S. 657, 669 -71 (1965).

[Footnote 178] California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). Justices Stewart and Brennan thought that joining to induce administrative and judicial action was as protected as the concert in Noerr but concurred in the result because the complaint could be read as alleging that defendants sought to forestall access to agencies and courts by plaintiffs. Id. at 516.

[Footnote 179] E.g., the speech and associational rights of persons required to join a union, Railway Employees Dep't v. Hanson, 351 U.S. 225 (1956); International Ass'n of Machinists v. Street, 367 U.S. 740 (1961); and see Abood v. Detroit Bd. of Educ. 431 U.S. 209 (1977) (public employees), restrictions on picketing and publicity campaigns, Babbitt v. United Farm Workers, 442 U.S. 289 (1979), and application of collective bargaining laws in sensitive areas, NLRB v. Yeshiva Univ., 444 U.S. 672 (1980) (faculty collective bargaining in private universities); NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (collective bargaining in religious schools).

[Footnote 180] NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941).

[Footnote 181] Ch. 120, 61 Stat, 142, Sec. 8(c) (1947), 29 U.S.C. Sec. 158(c).

[Footnote 182] Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 616 -20 (1969).


Annotations p. 15