Originally published in The Forecast, Vol.4, N. 6 March 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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Prior to 1971, congressional regulation of political campaigns was modest. In 1910, Congress enacted laws requiring disclosure of the names of all contributors of $100.00 or more to presidential or congressional campaign committees and identification of recipients of $10.00 or more of those contributed funds.

From time to time, Congress modified that statute, broadening its disclosure requirements. In 1934, the United States Supreme Court rejected a constitutional challenge to these provisions in Burroughs v. United States, 290 U.S. 534 (1934).

Writing for the majority, Justice George Sutherland found ample justification for the law in Congress's general "power of self protection" of the nation:

Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or corruption. Id., 290 U.S. at 545.

In addition, Justice Sutherland ruled that Congress could choose whatever means necessary for the nation's "self-protection." If Congress concluded "that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent the corrupt use of money to affect elections," and that was appropriate for the nation's good, there was nothing in the Constitution to prevent that decision. Id., 290 U.S. at 547-48.

In so ruling, Justice Sutherland made no reference whatsoever to the First Amendment guarantees of the freedom of speech, or of the press, or the right of the people to assemble and petition the government for redress of grievances. The parties had not raised any First Amendment issue, so the Court did not address any.

It was not until after 1940, Congress having enacted the Hatch Act limiting certain government employee participation in political campaigns, that the First Amendment was invoked as a limit upon Congressional power to deal with corruption in the electoral process. Although the Court did not rule in favor of these First Amendment claims, it did recognize that the First Amendment might, in an appropriate case, limit Congress's power to regulate the electoral process. United Public Workers v. Mitchell, 330 U.S. 75, 111 (1947).

It was also after 1940 that the Court began to hand down a number of decisions, applying the First Amendment guarantees for the first time on a variety of exercises of government power. Among those decisions were several that affirmed the right of the people to participate in political campaigns and to associate with political parties free from government regulation. See, e.g., Cousins v. Wigoda, 419 U.S. 477, 487 (1975).

Thus, when Congress stepped up its regulation of federal elections with the Federal Election Campaign Act of 1971 (as amended in 1974), the Court was poised to assess its constitutionality under the First Amendment. See Buckley v. Valeo, 424 U.S. 1, 12-23 (1976).

THE ACT

Characterized by the United States Court of Appeals for the District of Columbia as "the most comprehensive reform legislation [ever] passed by  Congress concerning" federal elections, the Federal Election Campaign Act of 1971, as amended in 1974, contained five major provisions.

First, it limited individual group or organization political contributions to $1000.00 to any single candidate per election, with an overall limitation of $25,000.00 during any calendar year by any contributor. A Political Action Committee was permitted, however, to contribute $5,000.00 to a single candidate, provided that it met three criteria: 1) The Committee was at least six months old; 2) It received contributions from more than fifty persons; and 3) It contributed to five or more candidates. Individual volunteer could contribute unlimited amounts of their time, and up to $500.00 of their out-of-pocket expenditures; beyond that they were limited to the $1,000.00 contribution level.

Second, the Act limited independent expenditures by individuals or groups "relative to a clearly identified candidate" to $1,000.00 per year. An expenditure ceiling was placed upon a candidate who drew from his personal funds or from funds of his immediate family: $50,000.00 for a presidential or vice-presidential campaign, $35,000.00 for a senatorial campaign and $25,000.00 for a campaign to the House. Monetary ceilings were also placed on overall campaign expenditures by candidates, the amounts varying with the office and other factors.

Third, the new law substituted an entirely new set of rules governing campaign contribution and expenditure reporting and disclosure. Campaign committees were required to keep detailed records, including the names and addresses of everyone making a contribution in excess of $10.00 and, if the contributions exceeded $100.00, the occupation and principal place of business of the donor. Quarterly reports of such data were required to be made to the Federal Election Commission.  In addition, persons other than candidates or their political committees were required to report to the commission all contributions or expenditures over $100.00 made for the purpose of influencing an election.

Fourth, the Act created a Presidential Campaign Fund, financed from the general revenues in the aggregate amount designated by individual taxpayers who authorized payment to the Fund of $1.00 of their tax liability in the case of an individual return and $2.00 in case of a joint return. These funds were to be made available to finance party nominating conventions, primary and general election campaigns for major parties (whose presidential candidate received 25% or more of the popular vote in the most recent election) and minor parties (whose presidential candidate received at least 5% but not more than 25% of the popular vote in the most recent election).

Fifth, and finally, the new law created the Federal Election Commission composed of 8 members, two of whom were ex officio without any voting power. The two ex officio members were the Secretary of the Senate and the Clerk of the house of Representatives. The six voting members were to be selected as follows: 2 appointed by the President pro tem of the Senate, 2 by the Speaker of the House and 2 by the President, each confirmed by a majority vote of both houses of Congress, and each pair to be composed of persons affiliated with more than one political party. The Commission was established to administer and enforce the legislation.

THE CASE

A wide and diverse group of plaintiffs instituted a law suit in the United States District Court for the District of Columbia to challenge the constitutionality of the Act. Among the plaintiffs were a candidate for President, an incumbent United States Senator seeking reelection, the Conservative Party of the State of New York, the Republican Party of Mississippi, the New York civil Liberties Union, The Libertarian Party, and Human Events, the conservative news weekly.

The plaintiffs claimed that the entire Act violated the First Amendment guarantees of the freedom of speech and association and the Fifth Amendment Due Process Clause. The Speech and Association claims focused upon the contribution and expenditures limits would have on the free exchange of ideas and upon the ability of the citizenry to elect those who shape the destiny of the nation.

Their Due Process claim focused on two separate and independent assertions: 1) The law, especially its criminal provisions, were unconstitutionally vague; and 2) The contribution and expenditure limits, the reporting and disclosure requirements and the public funding of presidential campaigns invidiously discriminated against independent candidates and minor parties.

In addition, plaintiffs complained that the method of appointment of the Federal election Commission violated Article II of the Constitution which made no allowance for any administrative agency to be composed of persons appointed by members of Congress or subject to concurrence of both houses of congress.

The Supreme Court acknowledged that the Act implicated First Amendment principles, including the right of the people to an "unfettered exchange of ideas for the bringing about of political and social changes desired by the people." Id., 424 U.S. at 14.  It further admitted that the Act impacted "the ability of the citizenry to make informed choices among candidates for office" which was essential attribute of popular sovereignty. Id., 424 U.S. at 14-15.

Nevertheless, the Court found constitutional the Act's limitations on contributions, its reporting and disclosure requirements, and the public funding of presidential elections. On the other hand, it struck down all of the expenditure limitations. Finally, it agreed with the plaintiffs that the appointment and composition of the Federal Election Commission did not conform to the constitutional principles of separation of powers.

CONTRIBUTION LIMITS

The Court acknowledged that limiting money contributions to election campaigns would "fetter" the interchange of ideas designed to bring about political change in the country and hamper "the ability of the citizenry" to participate fully in election campaigns. But the Court concluded, such "restrictions" would be "only marginal." Id., 424 U.S. at 17, 18, and 20.

In support of this point, the Court stated that the contribution limitation "involves little direct restraint on...political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues." Id., 424 U.S. at 21.

As for the campaign committees and candidates, a limit on political contributions, the Court wrote, would "merely...require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of...political expression." Id., 424 U.S. at 20-21.

In addition to characterizing these impacts as "marginal," the Court found a strong countervailing governmental interest justifying the adverse impact that contribution limits had on the political process. That interest was to protect the "integrity of our system of representative democracy" from two dangers:

1) From the risk of actual quid pro quo arrangements between large contributors and candidates that they support; and

2) From "the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions." Id., 424 U.S. at 26-27.

As for the "quid pro quo" risk, the Court observed that actual bribery was hard to detect and to prove, so Congress was justified in cutting it off at the pass. More importantly, the Court opined, Congress had ample justification for the contribution limitations, namely, to safeguard the system against the "appearance" of impropriety.

EXPENDITURE LIMITS

As for expenditures, however, the Court was not persuaded that limiting spending served the interests of protecting  the government from corruption or the appearance of corruption. This was especially true, it said, with respect to the limit placed upon a person's own personal or family treasury. In such a case there is no contributor to pose any risk of corruption. Id., 424 U.S. at 52-53.

Likewise, having upheld the limitations on contributions, the Court found no need to limit expenditures also, having already put the lid on potential corrupters. Thus, the Court could not find sufficient justification for the limit on expenditures out of concern for the integrity of the electoral process.

The only government interest in limiting expenditures, then, was one to "equaliz[e] the relative ability of individuals and groups to influence the outcomes of elections." Id., 424 U.S. at 48.  The Court dismissed this argument as "wholly foreign to the First Amendment," and directly contrary  to a number of its decisions commanding that the government keep its hands off the free marketplace of ideas. Id., 424 U.S. at 48-51.

Elaborating on this point, the Court concluded:

The campaign expenditures ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns...The First Amendment denies the government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In a free society ordained by our Constitution it is not the government, but the people - individually as citizens and candidates and collectively as associations and political committees - who must retain control over the quantity and range of debate on public issues in a political campaign. Id., 424 U.S. at 57.

Having found no legitimate interest to curb campaign expenditures, the Court struck down the statute's expenditure limitations, finding such curbs to have placed "substantial...restraints" on the "quantity of expression," the "depth of expression," and the "size of audience reach." Id., 424 U.S. at 19.

REPORTING AND DISCLOSURE

Compelling the reporting and disclosure of every contributor of $100 or more, and every expenditure of $10 or more, posed a more serious problem for the Court. Several of its precedents had disapproved compulsory disclosure requirements as violations of the right of people to freely associate without risk of public exposure.  Id., 424 U.S. at 63-66.

The Court  way around these cases, however, by pointing to two countervailing government interests. First, it stated that the government had an interest in providing the electorate with information as to where political money comes from and how it is spent by the candidate "in order to aid the voters in evaluating those who seek federal office." Id., 424 U.S. at 66-67.

Second, the Court claimed that such reporting and disclosure requirements aid in the enforcement of the contribution limitations which are, in turn designated to "deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity." Id., 424 U.S. at 67.

While this second reason did not apply to the disclosure and reporting requirement imposed on the individuals who spent money outside the campaign structure of the candidate and his party, the Court still found the first reason more than sufficient. Id., 424 U.S. at 80-81.

As dissenting Chief Justice Warren Burger observed, the majority believed that the disclosure provisions served "broad informational purposes, enabling the public to be fully informed on matters of acute public interests." Id., 424 U.S. at 236.  This interest, the majority decided, was so important that it overrode any concern that the disclosure and reporting requirements might "deter some individuals" from participating in the campaign process. Id., 424 U.S. at 68.

PUBLIC FUNDING

Although the Court struggled some with the reporting and disclosure requirements, it had absolutely no difficulty with the public financing of election campaigns. Such funding was, the Court reasoned, clearly within Congress's power to "promote the general welfare" and to regulate federal elections. Id., 424 U.S. at 90-91.

As for the First Amendment, the Court asserted that public funding did not "abridge, restrict, or censor speech...but rather...facilitate[d] and enlarge[d] public discussion and participation in the electoral process, goals vital to a self-governing people." Id., 424 U.S. at 93.

Having found that public funding of presidential elections "furthers...First Amendment values," the Court dismissed, in a footnote, the plaintiffs' concerns that "public funding will lead to governmental control, and thus to a significant loss of political freedom":

The concern is necessarily wholly speculative and hardly as basis for invalidation of the public financing scheme on its face. Congress has expressed its determination to avoid the possibility. Id., 424 U.S. at 93, n. 126.

Moreover, the Court found that other instances of public financing have enhanced the First Amendment, not restricted it, referring - again in a footnote - to aid to "public broadcasting and other educational media." Id., 424 U.S. at 93, n. 127.

THE COMMISSION

On the other hand, the Court found the method of appointing the Federal Election Commission, and its composition, wholly outside the Constitution. The means of appointment, the Court observed bypassed the explicit command of Article II, Section 2, Clause 2 requiring the President to nominate, and upon the concurrence of the Senate, to appoint "officers of the United States." Id., 424 U.S. at 125-28.

The Commission attempted to avoid this plain language by claiming that the Constitution had reposed in Congress extraordinary authority "to regulate elections" and that, consequently, the case stood on different footing "than if Congress had exercised its authority in another field." Id., 424 U.S. at 131. The Court rightfully dismissed this contention as "novel and contrary to the language of the Appointments Clause." Id., 424 U.S.  at 132.

It also summarily dismissed the Commission's attempt to justify its peculiar status as necessary to insure its independence from the power of an incumbent President running for reelection. The Court simply observed that the Commission must also regulate Congressional elections and who would insulate them from members of Congress? Not this appointment scheme which afforded the majority party of the Senate and the House to appoint four of the six voting members of the Commission. Id., 424 U.S. at 134.

THE DISSENTS

The opinion of the Court was remarkably free from dissent. Only Justice Byron White dissented from the holding that the expenditure limits were unconstitutional. Justice Thurgood Marshall dissented from that portion of the opinion, but only partially. He thought that the limit on expenditures from a candidate's personal or family fortune was warranted.

Justice William Rehnquist also filed a partial dissent, limiting his objections to the failure of public funding of presidential elections to fairly treat minor parties.

Only Chief Justice Warren Burger registered a major difference with the majority. He would have struck down all of the contribution limits as well as the reporting and disclosure requirements. He would also have found the public financing of presidential elections unconstitutional. What he opposed, he wrote, was Congressional "rationing" of "political expression" in order to curb abuses of the democratic processes. Id., 424 U.S. at 256.

"There are many prices we pay for the freedoms secured by the First Amendment," the Chief Justice concluded, "[and] the risk of undue influence is one of them, confirming what we have long known: Freedom is hazardous, but some restraints are worse." Id., 424 U.S. at 256-257.

PART TWO