Originally published in The Forecast, Vol.4, N. 7 April 1997

By 

Dr. Herbert W. Titus, J.D.

President of The Forecast Foundation

2400 Carolina Rd.

Chesapeake, Va. 23322

Reprinted by Permission

Editor’s note: Though this article was originally printed three years ago, this issue is still continues to be a major issue. We have included all of the series of articles linked together so that you may understand the history behind the current law, how it violates the Constitution, and what could be done to change the current law. Some format changes have been made but no content has been changed from the original.

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In Buckley v. Valeo, 424 U.S. 1 (1976), the Court placed its stamp of constitutional approval on Congressional limits on contributions to campaigns for election to Federal office. In the same case, the Court disapproved Congressional limits on expenditures by those candidates and their supporters.

The Court based its constitutional distinction between contributions and expenditures on two factors. First, it said that contributions to a candidate created the risk of corruption, or the appearance of corruption; whereas, expenditures did not.

Second, the Court concluded that one who contributes to another's political campaign does not have as great an interest in freedom of speech as the one who spends money on that campaign. The contributor, the Court ruled, is content to allow the recipient to shape the message; whereas the spender is the shaper of the message.

Having made this constitutional distinction between contributions and expenditures, the Court soon faced a number of issues requiring clarification of their ruling. First, and foremost, the Court attempted to draw a clear line between "issue advocacy" and "express candidacy advocacy."  Second, it labored hard to maintain the line between contributions and expenditures. Still, twenty years later, the Court found itself significantly divided over how to best police campaign reform measures under the First Amendment.

ISSUE ADVOCACY

The distinction between issue advocacy and express candidacy advocacy arose initially in cases involving state-imposed limits on both expenditures and contributions in campaigns for the defeat or passage of initiatives and referenda.

In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court struck down a Massachusetts law prohibiting corporations from spending any money "for the purpose of...influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business, or assets of the corporation." Id., 435 U.S. at 768.

The Massachusetts authorities defended this limit, in part, as necessary to "sustain...the  active role of the individual citizen in the electoral process and thereby prevent...diminution of the citizen's confidence in government." Id., 435 U.S. at 787.

In support of their position, state authorities relied on a number of Supreme Court precedents upholding limitations on corporate and union expenditures in campaigns for candidates for public office. See, e.g., United States v. Automobile Workers, 352 U.S. 567 (1972).

The Court conceded that it had found that "preservation of the individual citizen's confidence in government" is an "interest...of highest importance," necessitating rulings upholding corporate expenditure limitations in campaigns for office. the Court explained:

The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. Id. 352 U.S. at 787, n.26.

But the Court concluded that the issue of popular confidence was not implicated in the case of expenditures made in support of, or in opposition to, a ballot measure. It found no evidence "that corporate advocacy threatened imminently to undermine the democratic processes, thereby denigrating rather than serving First Amendment interests":

Referenda are held on issues, not candidates for office. The risk of corruption perceived in cases involving candidate elections...simply is not present in a popular vote on a public issue. Id., 435 U.S. at 789-90.

This distinction between issue advocacy and express candidacy advocacy was extended by the Court to limitations on contributions, as well as expenditures. In Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981), the Court struck down a city ordinance limiting contributions to $250 per individual to any committee's or other organization's campaign in support or opposition to a ballot measure.

Defenders of the contribution limitation claimed that it "ensured that special interest groups could not 'corrupt' the initiative process by spending large amounts to support or oppose a ballot measure." Id., 454 U.S. at 293.

The Court rejected this claim on two grounds. First, the Court found that such limits directly abridged "the practice of persons sharing common views banding together to achieve a common end [which] is deeply embedded in the American political process." Id., 454 U.S. at 294.

Second, it observed that such limits have a discriminatory effect, thereby placing a direct "restraint on the right of association":

Under the Berkeley ordinance an affluent person can, acting alone, spend without limit...It is only when contributions are made in concert with one or more others in the exercise of the right of association that they are restricted... Id.,454 U.S. at 296.

Both of these reasons would appear to support a ruling to strike down limits on contributions to campaigns for government office. Yet, in Buckley v. Valeo, supra, the Court had ruled in favor of such limits.

Instead of reconciling the Buckley ruling with its reasoning in the Berkeley case, the Court confined its rule in the former to a "single narrow exception to the rule that limits on political activity were contrary to the First Amendment:

The exception relates to the perception of undue influence of large contributions to a candidate: 'To the extent that large contributions are given to secure a quid pro quo from current and potential office holders... Id.,454 U.S. at 296-97.

EXPRESS CANDIDATE ADVOCACY

Having established one rule for issue advocacy and another for express candidacy advocacy, the Court has been required to make a number of fine distinctions to keep the Buckley  exception sufficiently narrow so as not to swallow up First Amendment freedoms.

First, it has carefully circumscribed "contributions" to those moneys given directly to a candidate's campaign organization or those given indirectly "by making expenditures that they coordinate with the candidate." See Colorado Republican Campaign Committee v. FEC, 518 U.S. --, 135 L Ed 2nd 795 (1996).

Second, the Court has insisted that the contribution limits apply only to those First Amendment activities that use "express words of advocacy of election or defeat" of an identified candidate. Id., 135 L Ed 2nd at 803.

These two rules have set issue organizations free from the restrictive contribution rules of both federal and state campaign reform laws, so long as they stay away from "express candidacy advocacy" or so long as they engage in such express advocacy with an individual candidate's campaign.

Sticky problems remain, however. One of them came before the High Court in 1996 in a case involving expenditures by the Colorado Republican Campaign Committee in support of advertisements against an already identified Democratic candidate for the United States Senate. Id.

The Campaign Committee admitted that its ads were "express candidate advocacy in that they were designed to defeat a clearly identified candidate. But it denied that they were contributions to any Republican candidate because, at the time of the ads, no such candidate had been identified.

Moreover, the Committee claimed that it had not "coordinated" its ad campaign with any of the potential GOP nominees. The Federal Election Commission countered, asserting that all "express candidacy advocacy" conducted by a political party must be presumed to be coordinated with the party's candidate.

The FEC failed, however, to persuade the Court. Treating the ad campaign as an "expenditure," not a "contribution," Justice Stephen Breyer, writing for himself, Justice David Souter and Justice Sandra Day O'Connor, likened the party's ad campaign to similar campaign activities conducted by "individuals, candidates, and other political committees." Consequently, he ruled that a political party could spend unlimited amounts of money on express candidate advocacy so long as those expenditures were not, in fact, coordinated with the candidate's campaign.

 John Paul Stevens and Ruth Bader Ginsburg disagreed, claiming that such unlimited party expenditures created an "interdependency" between the candidate and the party thereby creating a "special danger that the party - or the persons who control the party - will abuse the influence it has over the candidate by virtue of its power to spend." Id., 135 L Ed 2nd at 825-26.

Justice Anthony Kennedy, writing for himself, Chief justice Rehnquist and Justice Antonin Scalia, could not understand what the fuss was all about. What difference did it make, he asked, whether or not the party coordinated its expenditures with an individual candidate's campaign? "We have," he answered, "a constitutional tradition of political parties and their candidates engaging in joint First Amendment activities." Id., 135 L Ed 2nd at 814.

Indeed, Justice Kennedy wrote, a rule limiting a political party's support of its own candidate - only if coordinated with that candidate, would make "no sense." After all, he concluded, the very purpose of a political party is to support candidates hoping that, if elected, they will further the party's political agenda. Id.

Justice Clarence Thomas, with Chief Justice  and Justices Kennedy and Scalia concurring, wrote a separate opinion to bring this point home by injecting a heady dose of political reality into the Court's opinions:

As applied...[to] campaign funding by political parties, the anti-corruption rationale loses its force... What would it mean for a party to "corrupt" its candidate or to exercise "coercive" influence over him? The very aim of a political party is to influence its candidate's stance on issues and, if the candidate takes office or is reelected, his votes...For instance, if the Democratic Party spends large sums of money in support of a candidate who wins, takes office, and then implements the party's platform, that is not corruption; that is successful advocacy of ideas in the political marketplace and representative government in a party system. Id., 135 L Ed 2nd at 824.

While Justice Thomas succeeded in wooing his three colleagues to agree with him here, he was all alone in his call for a reexamination of Buckley v. Valeo in order to bring the election campaign laws back into conformity with the First Amendment.

CONSTITUTIONAL ADVOCACY

Relying in part on former Chief justice Warren burger's dissent in Buckley, Justice Thomas found that the distinction between "contributions' and "expenditures" lacked "constitutional significance." Id., 135 L Ed 2nd at 818.

First, he argued that contributions and expenditures both contribute to the public debate on political issues which is at the core of the First Amendment:

When an individual donates money to a candidate or to a partisan organization, he enhances the donee's ability to communicate a message and thereby adds to the political debate, just as when that individual communicates the message himself. Indeed, the individual may add more to political discourse by spending, if the donee is able to put the funds to more productive use than can the individual. The contribution of funds...thus fosters the "free discussion of governmental affairs"...just as an expenditure does. Id.

Second, Justice Thomas observed that "[g]iving and spending in the electoral process also involve basic associational rights under the First Amendment":

Political associations allow citizens to pool their resources and make their advocacy more effective...If an individual is limited in the amount of resources he can contribute to the pool, he is certainly limited in his ability to associate for purposes of effective advocacy. Id., 135 L Ed 2nd at 818-819.

As for the asserted government interest of guarding against corruption, Justice Thomas injected some rather healthy skepticism into the analysis. Again he made two points.

First, he wondered if the Buckley Court had not allowed congress to pass "broad prophylactic" limits on contributions to political campaigns without adequate evidence that such limits were really necessary to prevent "bribery or anything resembling it." Id., 135 L Ed 2nd at 822.

Second, he found no real evidence linking contribution and expenditure limits to the prevention of real corruption in government. This discovery prompted Justice Thomas to doubt that Congress enacted the limits for that purpose:

There is good reason to think that campaign reform is an especially inappropriate area for judicial deference to legislative judgment... What the argument for deference fails to acknowledge is the potential for legislators to set the rules of the electoral game so as to keep themselves in power and to keep potential challengers out of it...Indeed, history demonstrates that the most significant effect of electoral reform has not been to purify public service, but to protect incumbents and increase the influence of special interests groups...When Congress seeks to ration political expression in the electoral process, we ought not simply acquiesce in its judgment. (Editorial emphasis) Id., 135 L Ed 2nd at 823.

Even though Justice Thomas expressed these doubts about Congress and about the Court's precedents, he did not offer any alternative constitutional standard. Rather, he applied the Court's compelling interest/least restrictive alternative formula, albeit more strictly, and found the financial limits on party financial support of a candidate's election unconstitutional - whether coordinated or not.

In applying the Court's current test, Justice Thomas missed a golden opportunity to reexamine that test and, consequently, the constitutional premises upon which it has been fashioned. For it is a false constitutional philosophy, not a misapplication of the Court's formula, that has allowed the politicization of the First Amendment. The only solution to such politicization is a return to the original meaning of the constitutional text. (Editorial emphasis)

PART THREE