The First Amendment, Campaign Finance Laws, and the Electoral Process

The First Amendment to the U.S. Constitution protects our right to free speech, amongst others. It was adopted in 1791, along with nine other amendments in the Bill of Rights.

James Madison drafted these amendments with the intention of limiting government power and safeguarding individual liberties. These democratic ideals are evident in their specific language.

The First Amendment reads in part:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…”

This language tells us that the First Amendment right to free speech begins as a limitation on the laws Congress may pass. Through the passage of the Fourteenth Amendment and the doctrine of incorporation, the U.S. Supreme Court has extended this limitation on Congress to governmental entities of any type and at any level.

What Does Free Speech Mean?

The First Amendment right to free speech protects us from government restrictions (state action) limiting speech. Government restrictions on speech can take many forms, including:

• Statutes
• Injunctions
• Local Ordinances
• Policies
• State Regulatory Schemes

The First Amendment right prohibits government action that restricts private speech. However, it generally doesn’t apply to government speech or private restrictions on speech.

Our right to free speech, though protected from government interference, is not absolute. The Supreme Court has established several permissible restrictions on speech. For example, obscenity, incitement, and child pornography are categories of unprotected speech that the government may regulate.

Even restrictions on protected speech may be permissible if they don’t violate the First Amendment. The Supreme Court has established legal standards and frameworks that are applied depending on the restriction. These typically require balancing the First Amendment rights concerned against the governmental interest justified by the restriction.

The Court has also established that the First Amendment right to free speech extends to non-speech expression like conduct and the written word. For example, messaging on a t-shirt or wearing an armband as a symbol of protest are both forms of speech protected by the First Amendment.

Does Freedom of Speech Apply to Politics?

Political speech and expression are at the heart of the First Amendment. After all, the First Amendment’s primary purpose was to protect open discourse about government affairs. Thus, political speech usually receives the strongest protection.

This means that courts tend to apply strict scrutiny to test the constitutionality of restrictions on political speech or expression. Strict scrutiny is the most difficult standard to meet. It requires a restriction to serve a compelling government interest in the least restrictive manner.

How Do Campaign Finance Laws Impact Free Speech?

While it was not always so, the Supreme Court has determined that corporations have free speech rights protected by the First Amendment. The Court has also held that the First Amendment protects political speech and expression by corporations.

As a result, government restrictions on speech may also take the form of campaign finance laws. We commonly see these laws at the state and federal level. For example, the Federal Election Campaign Act (FECA):

• Limits campaign contributions and independent expenditures
• Establishes disclosure and disclaimer requirements
• Restricts sources of contributions

"Independent expenditures" are expenses for a communication that expressly advocates for or against a clearly identified political candidate. They are considered independent expenses because they are not made in coordination with the political candidate, their campaign, or their political party. Essentially, the funds are spent directly toward electoral advocacy.

"Disclosure requirements" refers to mandatory periodic reporting to the government. The government makes these reports available for public inspection.

"Disclaimer requirements" refers to language a political committee must include clearly and conspicuously on all public communication. Disclaimers that are hard to read, hear, or find won’t suffice. Examples of public communication can include:

• Mass mailings
• Newspapers and magazines
• Phone banks
• Radio, broadcast, television, cable, and satellite communications/transmissions

Emails and websites of political committees that are publicly accessible are not classified as public communications. However, they are still obligated to adhere to disclaimer requirements.

First Amendment Challenges to Campaign Finance Laws

Campaign finance laws often implicate political speech and expression. As a result, they often face First Amendment challenges. Besides free speech concerns, we often see freedom of association challenges to campaign finance laws.

Freedom of association isn’t explicitly included in the First Amendment. However, the Supreme Court has deemed it “an indispensable means of preserving” other First Amendment rights.

Thus, it recognized the First Amendment right to associate to engage in speech, assembly, and other First Amendment activities. Due to the crucial relationship between the "freedom to associate" and "privacy in one's associations," the First Amendment also protects associational privacy.

The Supreme Court has heard several cases challenging campaign finance laws on First Amendment grounds. It has utilized various legal standards to test these challenges. The appropriate standard for evaluating the constitutionality of a speech restriction usually turns on the type of restriction at issue.

What Sort of Limitations May the Government Impose on Private Funding of Political Campaigns?

Because campaign finance laws often implicate political speech, courts typically test these regulations' constitutionality using strict or exacting scrutiny standards. A government restriction on campaign financing must meet the applicable standard to be upheld.

Strict scrutiny generally applies to campaign finance laws limiting independent expenditures. Conversely, regulations imposing campaign disclosure requirements typically require an exacting scrutiny standard. The two standards are similar, with one fundamental difference:

• Strict scrutiny requires that the restriction serve a compelling state interest in the least restrictive manner.
• Exacting scrutiny does not necessitate the use of the least restrictive means; rather, it mandates a restriction that is narrowly tailored.

Supreme Court Cases on Campaign Finance and the First Amendment

The Federal Election Commission (FEC) was established in 1975 to administer and enforce federal campaign finance laws. Its mission is to protect the integrity of the campaign finance process.  

The Court’s recognition of First Amendment rights for corporations has generated a robust body of caselaw evaluating the constitutionality of campaign finance laws. Soon after the FEC was established, the Supreme Court addressed several First Amendment challenges to campaign finance laws.

These early Court opinions reveal a receptive approach to lawmaking efforts to curb corruption and the undue influence of money in politics. In later years, however, we see a shift toward stronger recognition of the First Amendment rights of corporations to support politicians.

Buckley v. Valeo

In 1976, the Court evaluated the constitutionality of the Presidential Election Campaign Fund Act and the Federal Election Campaign Act (FECA). Buckley v. Valeo centered around several FECA provisions that addressed:

• Limited expenditures
• Campaign contribution limits
• Disclosure requirements

Senator Buckley and others challenged the limitations and requirements as a violation of the First Amendment. They contended the expression isn’t possible without money. Thus, they claimed the contribution limitation violated the First Amendment right to expression.

The Court agreed the limits restricted expression. It recognized that contribution limits such as this reduce “the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached.”

But, the Court determined these limitations serve to protect the integrity of our democratic system of election. They seek to prevent corruption and the appearance of corruption.

The Court explained that these limitations are one of FECA’s "primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions." As a result, the Court upheld the contribution limits as a constitutional restriction on First Amendment freedoms.

Conversely, the Court determined the expenditure limits violated the First Amendment. As a result, it struck down the expenditure limits for candidates and their committees (except for presidential candidates that accept public funding). Likewise, it struck down the restriction limiting independent expenditures as well as candidate expenditures from their own personal funds.

The Court reasoned that these limitations directly and considerably restrained the candidates’ political speech. But they didn’t curtail corruption.

In fact, they didn’t serve any state interest strong enough to warrant the restriction. Thus, FECA’s limits on independent expenditures and candidate expenditures for promoting their own political views weren’t justified.

However, the Court upheld FECA’s campaign disclosure requirements. Buckley contended that the requirement to disclose the names of contributors violated the First Amendment right of association and associational privacy. However, the Court determined that the state's interests in transparency to inform voters, deter corruption, and identify violations justified the requirements.

Nixon v. Administrator of General Services

The Court upheld the FECA’s disclosure requirements again in Nixon v. Administrator of General Services the following year. In Nixon, the Court again acknowledged that “compelled disclosure can seriously infringe on privacy of association…”

But, the important state interests served by disclosure requirements outweighed the (then) President’s First Amendment concerns.

Austin v. Michigan Chamber of Commerce

In 1990, the Court heard Austin v. Michigan Chamber of Commerce. In Austin, the Court reviewed a state campaign finance law regulating corporations’ use of their general treasury funds. The law prohibited the use of the corporate treasury funds to pay for independent expenditures supporting or opposing state election candidates.

The law allowed corporations to set up a PAC, or political action committee, with a separate fund for purely political purposes.

The state enacted the law because it was concerned about political corruption. It sought to protect the integrity of the election and political processes. Specifically, the state wanted to prevent the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.”  

The Michigan Chamber of Commerce, a nonprofit corporation, sought to place an ad in a newspaper supporting a state election candidate. It had a segregated fund for political purposes. But, it wanted to buy the ad with its general treasury funds. Thus, the chamber challenged the law as an unconstitutional infringement on its First Amendment rights.

The Court acknowledged that the law restricted the organization’s political speech. However, it determined that the state’s interest in preventing potential distortions from corporations’ access to their general treasury funds for these purposes was important. Likewise, the Court determined that the restriction was narrowly tailored to effectively mitigate that distortion while still allowing corporations to “express their political views.” As a result, the Court upheld the law as constitutional.

Burson v. Freeman

Two years later in Burson v. Freeman, the Court reviewed a First Amendment challenge to an anti-electioneering state law.

Electioneering generally refers to the process of convincing voters to vote for or against particular candidates, issues, or parties. It can take many forms including solicitation of votes and distribution or display of campaign materials.

In Burson, the Tennessee law prohibited the display of campaign materials and solicitation of votes within 100 feet of polling facilities. Applying the exacting scrutiny standard, the Court upheld the law.

It found that the law created a safe zone around polling facilities that was very limited in area. It therefore determined the restriction was narrowly tailored enough to serve the compelling state interest of protecting people’s right to vote freely.

California Democratic Party v. Jones

The Supreme Court has also recognized the First Amendment rights of political parties. In 2000, the Court addressed California Democratic Party v. Jones. The issue in this case was a state law that effectively converted political party primary elections into “open primaries.”

This meant anyone of any affiliation could vote in a primary election. The Court explained that political parties can choose with whom they affiliate. As a result, the Court invalidated the law as a violation of the political parties’ freedom of association.

Williams-Yulee v. Florida Bar

In 2002, the Court addressed a provision in Florida's Code of Judicial Conduct in Williams-Yulee v. Florida Bar. The provision restricted the speech of candidates for judicial office. Specifically, it banned judicial candidates from personally soliciting campaign funds. The Court upheld the restriction. It reasoned that the state interest of protecting the public’s confidence in the judicial system was compelling. The restriction was narrowly tailored to support this interest, and it didn’t unnecessarily burden the candidates’ free speech rights.

McConnell v. FEC

In 2003, the Court heard McConnell v. Federal Election Commission. The McConnell Court reviewed provisions of the Bipartisan Campaign Reform Act (BCRA). Provisions of the 2002 federal law prohibited corporations and PACS from mentioning candidates’ names in advertisements within sixty days of an election.

They also prohibited soft-money contributions. This means funds given to political parties for a use other than candidate support or opposition. The Court upheld the law. It reasoned that the law served the state interest of preventing corruption and the appearance of corruption. It also served the state interest of preventing distortion of public support for certain political ideas.

Federal Election Commission v. Wisconsin Right to Life

In 2007, the Court heard Federal Election Commission v. Wisconsin Right to Life. In this case, the Court reviewed a BCRA restriction on financing for electioneering communications. The BCRA limited the use of corporate treasury funds for electioneering communications.

Under the BCRA, this includes:

• Any broadcast, cable, or satellite communication that
• Refers to a clearly identified federal election candidate, and
• Is publicly distributed within 60 days before a general election or 30 days before a primary election.

It also includes express advocacy, a type of electioneering communication that typically uses words like elect, vote, and support in connection with a clearly identified candidate.

The nonprofit group Wisconsin Right to Life (WRTL) wanted to run some anti-filibuster broadcast ads to air close to the 2004 presidential election. It hoped to fund the ads with their corporate treasury funds. So, they challenged the restriction, contending it violated their First Amendment rights.

The Court held the restriction to be unconstitutional as applied. It rejected the FEC’s contention that the restrictions were justified by anti-corruption state interests. It reasoned that this wasn’t a compelling state interest that justified the burden to WRTL’s speech.

The Court also explained that WRTL’s ads didn’t constitute express advocacy, or its functional equivalent, as alleged by the commission. The Court reasoned that an issue ad will only be considered the functional equivalent of express advocacy if it can be reasonably interpreted only as an appeal to vote for or against a particular candidate.

Citizens United v. FEC

In 2010, the Court heard Citizens United v. Federal Election Commission. In Citizens United, the Court reviewed the BCRA’s ban on corporations, unions, and PACS from using their corporate treasury funds for independent expenditures and electioneering communications. The restrictions applied to speech for or against a particular candidate within thirty days of a primary election.

Citizens United, a conservative nonprofit corporation, wanted to promote and distribute a negative film documentary about presidential candidate Hilary Clinton. They wanted to make it available through the cable companies within 30 days of the primary elections.

In light of the BCRA ban on corporate-funded electioneering communications, Citizens United sought judicial action to invalidate the restriction on First Amendment grounds. The matter ultimately went to the Supreme Court.

In a 5-4 decision, the Court struck down the relevant provisions of the BCRA. It explained that political spending is a form of speech protected by the First Amendment.

What Was the Supreme Court's Rationale in Citizens United?

Speech protections are most crucial during a political campaign for public office. Restricting the amount a corporation can spend on political communication during a campaign is tantamount to a prohibition on speech.

The Court reiterated that any law that does this “reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”

At the heart of the First Amendment is mistrust of government power. The First Amendment protects against government restrictions disfavoring certain subjects and viewpoints. It also protects against restrictions that distinguish some speakers from others. Such restrictions can be forms of content control.

Thus, restrictions on political speech by certain disfavored speakers cannot be justified by a compelling state interest. In other words, “the government may not suppress political speech on the basis of the speaker’s corporate identity.”

Accordingly, the Court determined the law restricting political speech based on a speaker’s corporate identity violated the First Amendment.

How Did Citizens United Impact Political Campaign Funding?

The Supreme Court recognized corporations and unions may not contribute directly to federal political candidates. However, they can spend unlimited funds on political advertising and other communications in support of, or opposition to, a candidate.

They may do so through contributions to Super PACs, which can accept unlimited contributions and use the funds for independent expenditures and political activity.

The Court reasoned that unregulated funds from big donors to Super PACs or wouldn’t corrupt elected officials because they’re completely independent.

Essentially, Citizens United recognized the First Amendment rights of corporations as no different from those of individuals.

This controversial holding overruled both Austin and McConnell (in part) by determining that political speech is protected regardless of a speaker’s corporate identity.

Some saw the decision as a free speech victory. Others cautioned it threatens democracy by giving wealthy corporations too much political power.

Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

The following year, the Court decided Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. This case dealt with a state campaign financing law that provided public financing for political candidates in state elections.

Eligible candidates had to agree to certain terms and limitations to receive the initial funds. Afterward, the state would provide additional funds as determined by the amounts spent by competitors.

A PAC, along with some of Arizona’s Republican candidates, challenged the law as an unconstitutional violation of their First Amendment rights. They contended the law forced them to limit their own spending to prevent their opposition from receiving additional matching funds.

Limiting their spending, they argued, limited their rights to free speech. The Court agreed and struck down the law. It explained that the state’s matching fund arrangement substantially infringed upon political speech without a compelling state interest that justifies it.

Four Justices dissented. They contended the matching fund scheme actually advances First Amendment principles by facilitating robust debate and discourse in our political system. It also provided an “opportunity for free political discussion to the end that government may be responsive to the will of the people.”

FEC v. Cruz

In 2022, the Court reviewed another BCRA campaign finance restriction in FEC v. Cruz. The restriction limited the amount of post-election funds a campaign committee could use to repay its candidate for a loan.

Texas Senator Ted Cruz loaned his campaign committee money during his campaign. His committee wanted to repay the loan balance with post-election contributions, but the balance exceeded BCRA limits. Cruz challenged the restriction, arguing that it violated his First Amendment rights to political speech.

The Supreme Court agreed. It explained that the restriction deters candidates from loaning money to their campaigns. This functions as a barrier to entering a political race and hinders political speech.

The government claimed the restriction served the state's interest in decreasing the risk of corruption. The Court determined this interest, as presented by the commission, was insufficient.

Not surprisingly, government regulation of money and politics in our electoral and political processes can pose First Amendment issues. This rings particularly true for campaign finance laws ever since the Supreme Court recognized the First Amendment rights of corporations. Its interpretation of these rights has generated much controversy.

In our highly divided political system, it’s safe to expect controversy as one of the few predictable outcomes of the Court’s future campaign finance rulings.