FEC Case

Campaign Finance Reform and Free Speech

The increasing impact that television, radio and the internet have had on our political landscape has allowed those with sufficient resources to craft an image according to their electoral priorities. Politicians have been especially benefited by the idea that media habits will help to form political orientation. It is thus that the focus of many political campaigns, especially on the national election, have revolved on the expenditure of massive sums of money in order to remain visible through these media to the public. United States electoral finance law has been subject to myriad legislative changes in recent years and, simultaneously, has been subjected to myriad legal challenges. So is this demonstrated in the 2009 decision by the United States Supreme Court in the Case of Citizens United v. Federal Election Commission No. 08-205 in which the court worked to diminish the already slim ground on which campaign finance reform has stood.

Holding in favor of highly particularlized restrictions on what types of media contributions can be made and used during the electoral process, the decision by the Supreme Court on an appeal from the district court for the District of Columbia would cite the preservation of the first amendment rights of private corporations as its basis. Before proceeding to a more analytical discussion on the case, it is appropriate to consider some background on the issue. In many ways, the current template for understanding how money raised translates into visibility on television, on the internet and at the street level came into play with 2002 passage of major campaign finance reform through the McCain-Feingold Bill (also known as the Bipartisan Campaign Reform Act or BCRA). This would impose limitations on the conditions in which contributions could be made by large corporate donors and on the manner in which these contributes could be made. It was believed at the time that by creating a situation where large scale donors were no longer able to contribute limitless sums of so-called 'soft money' to campaigns, that the amount which candidates would be able to spend on television commercials, leaflets and web presence would decline. However, as much criticism on campaign finance reform has demonstrated, conditions are often seen as not strict enough to truly prevent corporations from having an influence over elections.

Moreover, "many experts warned that BCRA's ban on soft money for the national parties would significantly weaken the parties. This has not happened. In fact, it appears that BCRA may have even strengthened the parties' role in bankrolling campaigns." (Maisel & Brewer, 191) This is because the two major parties are now using the 'hard money' fund-raising processes that court larger numbers of donors making smaller contributions. This serves the twofold purpose of bringing campaign funds into the coffer while simultaneously energizing the base. The offshoot has been a greater success in this era for those campaigns which attract the attention of the broadest sweep of individuals.

Even still, the conditions around which the decision in United Citizens v. FEC would be made demonstrate that there are a great many limitations to the effectiveness of campaign finance reform on the basis of the great specificity by which restrictions are imposed. Accordingly, the opinion considers §434(f)(3)(a) of the BCRA, which indicates that both corporations and unions are prohibited from publicly distributing media funded from its own treasury within 30 days of a primary election which identifies a candidate or which attempts to impact the outcome of the election. This denotes a particular set of conditions which is given further specificity by the working definition of 'public distribution.' This is reported by the Supreme Court as being 50,000 viewers or more and clearly makes allowances for many of the above conditions to be removed when in a small market context possessing less than 50,000 potential viewers. (United States Supreme Court, 1)

With these conditions noted, we observe that the Supreme Court still overturned a district court decision in the particular case involving the plaintiff Citizens United on the grounds that any claims of its exception would create 'chilling effect' on free speech in relation to approach elections. The decision, it is argued in the present report, has narrowed specification further so as to significantly blunt the relevance of campaign finance law. So is this rationale stated in the decision, where it is found that "because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin." (United States Supreme Court, 2)

Here, the court would measure a case in which a non-profit organization called Citizens United produced a 30 minute video program criticizing then Senator Hillary Clinton during her presidential campaign. The group intended to make the program available by on-demand video and wished to make the argument that the program did not constitute electioneering as this is defined by current legislation. This constitutes the central argument made by the plaintiff and implies the desire on the part of private campaign donors to push the limitations to their greatest ends in order to impact the outcome of elections. In this case, the limitation specifically applies to primary races as well, rendering it yet more specialized in application. The desire on the part of the Citizens United group to draw down the impact and relevance of those limitations demonstrates the threat of a slippery slope to the already vulnerable BCRA. And indeed, this would be the outcome of the Supreme Court Decision, which would balk at the implications of any ban on the expression of free speech during an election cycle. The Supreme Court considered that the argument made by Citizens United, asserting that its approach to distribution did not constitute 'public distribution,' would impose limitations too narrow to be sustainable upon the question of private financing for public political expression. It is thus, however, that the decision by the court would turn its attention toward the question of prior restraint which it states would be breached by enforcement of §441b.

Here, the argument is made that, because of the complexity and uncertainty of the new laws, "a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated." (United States Supreme Court, 3)

In one sense this is illustrated by the very case in question, with Citizens United first approaching the FEC in order to receive permission to distribute its election materials via cable on-demand outlets and being instructed that this was in violation of campaign finance law. The uncertainty claimed by the Court over the nature of the evolving legislation is bore out by the uncertainty demonstrated by Citizens United when it approached the Election Commission. Moreover, it does appear that the Commission consequently acted in a manner which could be construed as prior restraint in restricting the distribution of the materials at issue. The Supreme Court makes the argument that indeed this action could be seen as a 'prior restraint' violation of the First Amendment rights for Citizens United. This argument is further underlined by the assessment that First Amendment rights have been shown to apply to private corporations in the same regard that they apply to individual citizens.

Accordingly, the findings would identify such precedents as First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 778, n. 14 and NAACP v. Button, 371 U.S. 415, 428-429 as cases in which corporations had been found to be entitled to the same First Amendment protections as applied to individuals and organizations. This is underscored by the findings in the case documentation, which state that any such ban as that implicated by §441b "is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy -- it is the means to hold officials accountable to the people -- political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction 'furthers a compelling interest and is narrowly tailored to achieve that interest.' WRTL, 551 U.S.,at 464. This language provides a sufficient framework for protecting the interests in this case." (United States Supreme Court, p. 3)

Here, the Supreme Court ultimately helps to build an argument in favor of the plaintiff's right to distribute its materials. It proceeds from the claim that not allowing the non-profit…