An explainer on campaign finance litigation

There has been a lot of public discussion and press attention about the Supreme Court’s decisions on campaign finance law, which can be a very complicated topic (especially for non-lawyers).  So I thought it would be useful to write a short Explainer on what the Court is up to.

There are two key categories of restrictions on spending in elections.  Some laws are “contribution limits” – they limit giving money to candidates and entities associated with candidates, like political parties and candidate political action committees.  Other laws are “expenditure limits” – they limit spending money in elections.

The Court has ruled that the First Amendment permits the government flexibility in imposing the first kind of campaign finance restriction – contribution limits.  The Justices do think that those limits create an issue under the “right of association” protected by the First Amendment because, by giving money, you link yourself with the candidate. For example, by contributing $250, you align yourself with a candidate for Congress.

But the Court has said that the government can adopt reasonable contribution limits without violating the First Amendment, because the limits serve an important government interest.  They prevent contributors from bribing candidates, or at least prevent the public from thinking candidates are being bought.  So Congress has adopted a law banning individuals from giving more than a total of $5200 to a candidate for federal office in a single election “cycle” – i.e., $2600 in the primary and another $2600 in the general election.

But even some contribution limits are unconstitutional.  In this year’s McCutcheon case, the Court struck down the federal “aggregate limits” that restricted the total amount that any person could give to candidates and committees in federal elections.  For a single election cycle, federal law had capped a donor’s right to make contributions at $48,600 to all candidates for federal office and $74,600 to any committees.  The Court ruled that there wasn’t a good enough justification for those aggregate limits, since contributions to individual candidates and committees were already separately capped.

The Court has been even less willing to uphold the second category of campaign finance restriction – expenditure limits.  The Justices view those restrictions as presumptively unconstitutional violations of the First Amendment right of “free speech” because they treat spending money as essentially the same as speaking in the election. The reasoning is that money is often necessary to get your message heard, whether by printing flyers or buying television ads.  And speaking about political matters like elections is at the heart of the First Amendment.

So the Court has required that the government give a very strong justification for any expenditure limit.  And recently, it hasn’t found any of them to be justified.

For example, in the famous Citizens United case from a few years ago, the Court struck down the federal law that banned corporations and unions from spending money in elections.  The Justices reasoned that corporations have free speech rights, and that the government cannot limit speech on the ground that the speaker has too much money.

So the rule now is that corporations and unions have a constitutional right to spend as much money as they want in elections, so long as they are doing so independently from the candidates and entities associated with them.  That last requirement is difficult to enforce but has been very important as a matter of legal doctrine because if the spending were “coordinated” with the candidates or parties, it would look a lot more like a contribution and less like an expenditure.

Every challenge to campaign finance law since John Roberts became Chief Justice has succeeded, most by narrow majorities. Both Citizens United and McCutcheon were decided by a vote of five to four, with the Court’s most conservative Justices in the majority.  Citizens United overturned two earlier rulings.  McCutcheon overturned another.  So those five Justices have been aggressive.

The next big question in campaign finance law to reach the Court may be whether the Citizens United ruling extends to contributions. Federal law now bans corporations from contributing directly to candidates.  But there is a real question whether that statute is still constitutional, because corporations now have the right to participate in political campaigns too.

For those of us who think that campaign finance limits are important to the integrity of our elections, these still should be hard cases.  It seems undeniable that you can get your message to the public better by spending money to do so.  And the recent rulings invalidating campaign finance restrictions highlight that under the First Amendment, we don’t want to restrict speech.  But there have to be some limits if we don’t want our elections to be bought. And although Congress is imperfect, it seems better able than the Court to figure out where to draw the line.

This piece was originally published on LinkedIn.

Posted in: Merits Cases, Campaign Finance