Order Code RL30669
CRS Report for Congress
Received through the CRS Web
Campaign Finance Regulation
Under the First Amendment:
Buckley v. Valeo and Its
Supreme Court Progeny
Updated August 28, 2003
L. Paige Whitaker
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Campaign Finance Regulation Under the First
Amendment: Buckley v. Valeo and Its Supreme Court
Progeny
Summary
Political expression is at the heart of First Amendment activity and, accordingly,
the Supreme Court has granted it the greatest deference and protection. However,
according to the Court in its landmark 1976 decision, Buckley v. Valeo, an absolutely
free political marketplace is not required by the First Amendment, nor is it desirable,
because without reasonable regulation, corruption will result. Most notably, the
Buckley Court ruled that the spending of money in campaigns, whether as a
contribution or an expenditure, is a form of “speech” protected by the First
Amendment. However, the Court upheld some infringements on such free speech
in order to further the governmental interests of protecting the electoral process from
corruption or the appearance of corruption. Campaign finance case law subsequent
to Buckley further illustrates that neither the freedom of speech and association nor
the government’s regulatory powers are absolute.
In Buckley v. Valeo, the Supreme Court considered the constitutionality of the
Federal Election Campaign Act of 1971 (FECA), which required political
committees to disclose campaign contributions and expenditures, and limited, to
various degrees, the ability of persons and organizations to make contributions and
expenditures. While First Amendment freedoms and campaign finance regulation
present conflicting means of attempting to preserve the integrity of the political
process, the Court resolved this conflict in favor of the First Amendment interests
and subjected any regulation burdening free speech and free association to “exacting
scrutiny.”
Under this standard of review, the Court evaluates whether the
government’s interests in regulating are compelling, examines whether the regulation
burdens and outweighs First Amendment liberties, and inquires whether the
regulation is narrowly tailored to serve the government’s interests. If a regulation
meets all three criteria, the Court will uphold it.
This report first discusses the critical holdings enunciated by the Supreme Court
in Buckley, including those: upholding reasonable contribution limits, striking down
expenditure limits, upholding disclosure reporting requirements, and upholding the
system of voluntary presidential election expenditure limitations linked with public
financing. It then examines the Court’s extension of Buckley in fifteen subsequent
cases, evaluating them in three regulatory contexts: contribution limits (California
Medical Association v. FEC; Citizens Against Rent Control v. Berkeley; Nixon v.
Shrink Missouri Government PAC; FEC v. Beaumont), expenditure limits (First
National Bank of Boston v. Bellotti; FEC v. Massachusetts Citizens for Life; Austin
v. Michigan Chamber of Commerce; FEC v. National Right to Work; Colorado
Republican Federal Campaign Committee (Colorado I) v. FEC; FEC v. Colorado
Republican Federal Campaign Committee (Colorado II); FEC v. Democratic
Senatorial Campaign Committee; FEC v. National Conservative Political Action
Committee), and disclosure requirements (Buckley v. American Constitutional Law
Foundation; Brown v. Socialist Workers ‘74 Campaign Committee; FEC v. Akins;
McIntrye v. Ohio Elections Commission).

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Buckley v. Valeo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Contribution and Expenditure Limits . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Reporting and Disclosure Requirements . . . . . . . . . . . . . . . . . . . . . . . . 6
Voluntary Presidential Election Expenditure Limits Linked With
Public Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issue and Express Advocacy Communications . . . . . . . . . . . . . . . . . . . 7
Contribution Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Limiting Individual Contributions to Political Action
Committees (California Medical Association v. FEC) . . . . . . . . . 8
Limiting Contributions in Connection With Ballot Initiatives
(Citizens Against Rent Control v. Berkeley) . . . . . . . . . . . . . . . . . 9
Establishing Contribution Limit Amounts (Nixon v. Shrink
Missouri Government PAC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Prohibiting Contributions by Tax-Exempt Corporations
(FEC v. Beaumont) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Expenditure Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Prohibiting or Limiting Corporate Expenditures (First National
Bank of Boston v. Bellotti; FEC v. Massachusetts
Citizens for Life, Inc.; Austin v. Michigan
Chamber of Commerce) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Restricting From Whom Labor Unions Can Solicit PAC Funds
(FEC v. National Right to Work) . . . . . . . . . . . . . . . . . . . . . . . . . 22
Limiting Political Party Expenditures (Colorado Republican
Federal Campaign Committee v. FEC (Colorado I);
FEC v. Colorado Republican Federal Campaign
Committee (Colorado II); FEC v. Democratic Senatorial
Campaign Committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Limiting Political Action Committee Independent Expenditures
(FEC v. National Conservative Political Action Committee) . . . 27
Disclosure Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Requiring Reporting and Disclosure (Buckley v. American
Constitutional Law Foundation; Brown v. Socialist Workers
‘74 Campaign Committee; FEC v. Akins) . . . . . . . . . . . . . . . . . 29
Requiring Attribution Disclosure by Individuals Distributing
Leaflets in Issue-Based Elections (McIntyre v. Ohio
Elections Commission) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

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Campaign Finance Regulation Under the
First Amendment: Buckley v. Valeo and Its
Supreme Court Progeny
Introduction1
Campaign finance regulation invokes two conflicting values implicit in the
application of the First Amendment’s guarantee of free political speech and
association. Political expression constitutes “core” First Amendment activity, which
the Supreme Court grants the greatest deference and protection in order to “assure
[the] unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.”2 However, according to the Court in its landmark
1976 decision, Buckley v. Valeo,3 an absolutely free “political marketplace” is neither
mandated by the First Amendment, nor is it desirable, since when left uninhibited by
reasonable regulation, corruptive pressures undermine the integrity of political
institutions and undercut public confidence in republican governance. That is,
although the Court reveres the freedoms of speech and association, it upheld
infringements on these freedoms in order to further the governmental interests of
protecting the electoral process from corruption or the appearance of corruption.
Case law subsequent to Buckley further illustrates that neither the freedom of
speech and association nor the government’s regulatory powers are absolute.
Accordingly, Supreme Court campaign finance holdings embody the doctrinal
tension in striking a reasonable balance between protecting the liberty interests in free
speech and association, on the one hand, and upholding campaign finance regulation
enacted with the intent to encourage political debate while protecting the election
process from corruption, on the other.
The Court appears to uphold First
Amendment infringements by campaign finance regulation only insofar as the
regulation is deemed necessary to preserve the very system of representative
democracy that unregulated First Amendment freedoms purport to insure.4
1 The author appreciates the research assistance provided by Christopher A. Jennings and
the technical assistance provided by Judy Joiner in the production of this report.
2 Roth v. United States, 354 U.S. 476, 484 (1957).
3 424 U.S. 1 (1976).
4 For example, in a line of cases involving the regulation of corporations, the Court
endeavors to resolve whether the First Amendment’s value for open debate by diverse
participants permits the government to impose regulations, designed to promote fairness,
which prevent corporate monopolization of the political marketplace; and whether the First
(continued...)

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CRS-2
In Buckley, the Court reviewed the constitutionality of the Federal Election
Campaign Act of 1971 (FECA),5 which required political committees to disclose
political contributions and expenditures, and limited, to various degrees, the ability
of natural persons and organizations to make political contributions and expenditures.
While First Amendment freedoms and campaign finance regulation present
conflicting means of preserving the integrity of the democratic political process, the
Court resolved this conflict in favor of First Amendment interests and subjected any
regulation burdening free speech and free association activities to “exacting
scrutiny.” Under this standard of review, the Court evaluates whether the state’s
interests in regulation are compelling, examines whether the regulation burdens and
outweighs First Amendment liberties, and inquires whether the regulation is narrowly
tailored to further its interest. If a regulation meets all three criteria, the Court will
uphold it.
This Report discusses the critical holdings and rationales enunciated by the
Buckley Court and then examines the Court’s extension of Buckley in fourteen
subsequent cases. Buckley’s extensions are evaluated in three regulatory contexts:
contribution limits, expenditure limits, and disclosure requirements.
When
discussing the Court’s rationale, the evaluation of each case highlights facts relevant
to a regulator such as: the object of regulation (e.g., a corporation, labor union, or
natural person); the asserted liberty interest (e.g., freedom of speech or association);
the asserted regulatory interest (e.g., deterring corruption); what triggers the
regulatory interest (e.g., political advantages gained by assuming the corporate form);
the means by which the regulator obtained those interests (e.g., limiting campaign
contributions); the extent to which the regulation burdened First Amendment liberties
(e.g., completely prohibiting expenditures above a certain dollar amount); and the
scope of regulation (i.e., whether the regulation was “narrowly tailored” to serve the
compelling governmental interests).
Buckley v. Valeo
In Buckley v. Valeo, the Supreme Court considered the constitutionality of the
Federal Election Campaign Act of 1971 (FECA), as amended in 1974,6 and the
4 (...continued)
Amendment’s value for liberty proscribes the government from regulating the political
speech and association rights of corporations. See this Report’s discussion of “prohibiting
or limiting corporate expenditures” at page 13, infra, and compare Buckley, 424 U.S. at 48-
49 (“[T]he concept that government may restrict the speech of some elements of our society
in order to enhance the relative voice of others is wholly foreign to the First Amendment.”),
with Buckley, 424 U.S. at 49, quoting New York Times v. Sullivan, 376 U.S. 254, 266
(1964)(“[T]he First Amendment ... designed to secure the widest possible dissemination of
information from diverse and antagonistic sources.”)
5 2 U.S.C. § 431 et seq.
6 Summarily, the FECA provisions at issue contained: (A) spending limitations consisting
of (1) a $1,000 contribution cap to any candidate by any individual, (2) a $25,000 limit on
an individual’s annual, aggregate contributions, (3) a $1,000 cap on a person’s or group’s
independent expenditures “relative to a clearly identified candidate,” (4) spending limits on
(continued...)

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CRS-3
Presidential Election Campaign Fund Act.7 The Court upheld the constitutionality
of certain provisions, including (1) contribution limitations to candidates for federal
office,8 (2) disclosure and record-keeping provisions,9 and (3) public financing of
presidential elections.10 The Court found other provisions unconstitutional, including
(1) expenditures limitations on candidates and their political committees,11 (2) the
$1,000 limitation on independent expenditures,12 (3) expenditure limitations by
candidates from their personal funds,13 and (4) the method of appointing members
to the Federal Election Commission.14 In general, the Court struck down expenditure
limitations, but upheld reasonable contribution limitations, disclosure requirements,15
and public financing provisions, so long as participation is voluntary, not compelled.
In considering the constitutionality of these statutes, the Buckley Court applied
the standard of review known as “exacting scrutiny,” which is a standard applied by
a court when presented with regulations that burden core First Amendment activity.
“Exacting scrutiny” requires a regulation to be struck down unless it is narrowly
tailored to serve a compelling governmental interest.
6 (...continued)
various candidates for various federal offices, and (5) spending limits on political parties’
national conventions; (B) reporting and disclosure requirements on contributions and
expenditures above certain thresholds; and (C) a provision establishing the Federal Election
Commission to administer and enforce the statute. The Court evaluated “spending” and
“disclosure” regulation under separate (though interrelated) lines of judicial principles.
Evaluating a facial challenge to spending limitations, the Court construed the regulation as
burdening two sorts of “speech acts”: (1) “contributions,” which express the level of a
person or group’s “support” of a candidate, and (2) “independent expenditures,” which
express the level of a person or group’s “independent political point of view.” In addition
to evaluating “speech” activity, the Court analyzed “contributions” and “independent
expenditures” in connection with their “associational” value.
7 26 U.S.C. §9001 et seq.
8 2 U.S.C. §441a.
9 2 U.S.C. §434.
10 Subtitle H of the Internal Revenue Code of 1954, codified at 26 U.S.C. §9001 et seq.
11 Formerly 18 U.S.C. §608(c)(1)(C-F). The Court made an exception for presidential
candidates who accept public funding.
12 Formerly 18 U.S.C. §608e.
13 Formerly 18 U.S.C. §608a.
14 Formerly 2 U.S.C. §437c(a)(1)(A-C).
15 However, there are two exceptions to this general rule: (1) disclosure requirements will
probably not be upheld if disclosure of a contributor places him or her at risk for economic
reprisal or physical threats for being “publicly” associated with the political group (see
NAACP v. Alabama, 357 U.S. 449 (1958) discussed note 32, infra., and Brown v. Socialist
Workers, 459 U.S. 87 (1982) discussed page 28, infra.), and (2) disclosure requirements will
probably not be upheld if they abridge the right of an individual to publish and distribute
leaflets anonymously, expressing a political point of view, in a referenda or other issue-
based election (see McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) discussed
page 29, infra.).

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Contribution and Expenditure Limits.
When analyzing First Amendment claims, a court will generally first determine
whether the challenged government action implicates “speech” or “associational
activity” guaranteed by the First Amendment. Most notably, the Buckley Court held
that the spending of money, whether in the form of contributions or expenditures, is
a form of “speech” protected by the First Amendment. A number of principles
contributed to the Court’s analogy between money and speech. First, the Court found
that candidates need to amass sufficient wealth to amplify and effectively disseminate
their message to the electorate.16 Second, restricting political contributions and
expenditures, the Court held, “necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of the exploration, and the size
of the audience reached. This is because virtually every means of communicating
ideas in today’s mass society requires the expenditure of money.”17 The Court then
observed that a major purpose of the First Amendment was to increase the quantity
of public expression of political ideas, as free and open debate is “integral to the
operation of the system of government established by our Constitution.”18 From
these general principles, the Court concluded that contributions and expenditures
facilitated this interchange of ideas and could not be regulated as “mere” conduct
unrelated to the underlying communicative act of making a contribution or
expenditure.19
However, according to the Court, contributions and expenditures invoke
different degrees of First Amendment protection.20
Recognizing contribution
limitations as one of the FECA’s “primary weapons against the reality or appearance
of improper influence” on candidates by contributors, the Court found that these
limits “serve the basic governmental interest in safeguarding the integrity of the
electoral process.”21 Thus, the Court concluded that “the actuality and appearance
of corruption resulting from large financial contributions” was a sufficient
compelling interest to warrant infringements on First Amendment liberties “to the
extent that large contributions are given to secure a quid pro quo from [a
candidate.]”22 Short of a showing of actual corruption, the Court found that the
appearance of corruption from large campaign contributions also justified these
limitations.23
Reasonable contribution limits, the Court remarked, leave “people free to
engage in independent political expression, to associate [by] volunteering their
16 See Buckley, 424 U.S. at 21.
17 Id. at 19.
18 Id. at 15.
19 Id. at 17.
20 See id. at 24.
21 Id. at 59.
22 Id. at 27.
23 See id.

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services, and to assist [candidates by making] limited, but nonetheless substantial
[contributions.”]24
Further, according to the Court, a reasonable contribution
limitation does “not undermine to any material degree the potential for robust and
effective discussion of candidates and campaign issues by individual citizens,
associations, the institutional press, candidates, and political parties.”25 Finally, the
Court found that the contribution limits of the FECA were narrowly tailored insofar
as the Act “focuses precisely on the problem of large campaign contributions.”26
On the other hand, the Court determined that the FECA’s expenditure limits on
individuals, political action committees (PACs), and candidates imposed “direct and
substantial restraints on the quantity of political speech” and were not justified by an
overriding governmental interest.27 The Court rejected the government’s asserted
interest in equalizing the relative resources of candidates and in reducing the overall
costs of campaigns. Restrictions on expenditures, the Court held, constitute a
substantial restraint on the enjoyment of First Amendment freedoms. As opposed to
reasonable limits on contributions, which merely limit the expression of a person’s
“support” of a candidate, the “primary effect of [limitations on expenditures] is to
restrict the quantity of campaign speech by individuals, groups and candidates.”28 “A
restriction on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their exploration, and the size
of the audience reached,” the Court noted.29
The Court also found that the government’s interests in stemming corruption by
limiting expenditures were not compelling enough to override the First Amendment’s
protection of free and open debate because unlike contributions, the risk of quid pro
quo corruption was not present, as the flow of money does not directly benefit a
candidate’s campaign fund.30
Upon a similar premise, the Court rejected the
government’s interest in limiting a wealthy candidate’s ability to draw upon personal
wealth to finance his or her campaign and struck down the personal expenditure
limitation31
24 Id. at 28.
25 Id. at 29.
26 Id.
27 Id. at 39.
28 Id.
29 Id. at 19.
30 Id. at 55.
31 Id. at 51-54. The Court distinguished this holding from its validation of Subtitle H, which
provides for the public financing of presidential elections, discussed page 7, infra.
Limitations on expenditures by presidential candidates receiving public funds were
distinguishable because the acceptance of public funds was voluntary.

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Reporting and Disclosure Requirements.
In Buckley, the Supreme Court generally upheld the FECA’s disclosure and
reporting requirements, but noted that they might be found unconstitutional as
applied to certain groups. While compelled disclosure, in itself, raises substantial
freedom of private association and belief issues, the Court held that these interests
were adequately balanced by the state’s regulatory interests. The state asserted three
compelling interests in disclosure: (1) providing the electorate with information
regarding the distribution of capital between candidates and issues in a campaign,
thereby providing voters with additional evidence upon which to base their vote; (2)
deterring actual and perceived corruption by exposing the source of large
expenditures; and (3) providing regulatory agencies with information essential to the
election law enforcement. However, when disclosure requirements expose members
or supporters of historically suspect political organizations to physical or economic
reprisal,32 then disclosure may fail constitutional scrutiny as applied to a particular
organization.33
Voluntary Presidential Election Expenditure Limits Linked With
Public Financing.
The Supreme Court in Buckley upheld the constitutionality of the system of
voluntary presidential election expenditure limitations linked with public financing,
through a voluntary income tax checkoff.34 The Court found no First Amendment
violation in not allowing taxpayers to earmark their $1.00 “checkoff” to a candidate
or party of the taxpayer’s choice. As the checkoff constituted an appropriation by
Congress, it did not require outright taxpayer approval, as “every appropriation made
32 See National Association for the Advancement of Colored People (NAACP) v. Alabama,
357 U.S. 449 (1958). The reasoning in Buckley and Brown v. Socialist Workers ‘74
Campaign Comm., 459 U.S. 87 (1982), discussed page 28, infra., has historical roots in
NAACP v. Alabama. In NAACP, the Court addressed whether a non-profit organization’s
associational rights were abridged by a state statute compelling disclosure of its members
and agents without regard to their position and responsibilities in the association. The
organization did not comply with the disclosure requirement. Finding for the NAACP, the
Court held that the freedom of association is an “inseparable aspect” of the freedoms
guaranteed by the First and Fourteenth Amendments, see id. at 460-61; that compelled
disclosure of the association’s membership would effectively restrain that freedom, see id.
at 461-463; and that, under strict scrutiny, the state’s interests in disclosure were insufficient
to overcome the association’s deprivation of right, see id. at 463-366. The Court stressed
that the “vital relationship between freedom to associate and privacy in one’s associations”
was unduly burdened by the disclosure requirement, as past revelation of membership
identity resulted in economic reprisal, loss of employment, threat of physical coercion, and
other manifestations of public hostility. Id. at 462.
33 See also McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (further defining
the scope of Buckley’s disclosure jurisprudence to proscribe disclosure requirements that
infringe on the right of an individual to publish and distribute leaflets anonymously,
expressing a political point of view, in a referenda or other issue-based election), discussed
page 29, infra.
34 26 U.S.C. § 9001 et seq.

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by Congress uses public money in a manner to which some taxpayers object.”35 The
Court also rejected a number of Fifth Amendment due process challenges, including
a challenge contending that the public financing provisions discriminated against
minor and new party candidates by favoring major parties through the full public
funding of their conventions and general election campaigns, and by discriminating
against minor and new parties who received only partial public funding under the
Act.36
The Court held that “[a]ny risk of harm to minority interests...cannot
overcome the force of the governmental interests against the use of public money to
foster frivolous candidacies, create a system of splintered parties, and encourage
unrestrained factionalism.”37
Issue and Express Advocacy Communications.
In Buckley, the Supreme Court provided the genesis for the concept of issue and
express advocacy communications. In order to pass constitutional muster and not be
struck down as unconstitutionally vague, the Court ruled that FECA can only apply
to non-candidate “expenditures for communications that in express terms advocate
the election or defeat of a clearly identified candidate for federal office,” i.e.,
expenditures for express advocacy communications.38 In a footnote to the Buckley
opinion, the Court further defines “express words of advocacy of election or defeat”
as, “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote
against,” “defeat,” and “reject.”39 Communications not meeting the express advocacy
definition are commonly referred to as issue advocacy communications.40 In its
rationale for establishing such a bright line distinction between issue and express
advocacy, the Court noted that the discussion of issues and candidates as well as the
advocacy of election or defeat of candidates “may often dissolve in practical
35 See Buckley, 424 U.S. at 85.
36 See id. at 86.
37 Id. at 101.
38 Id. at 44.
39 Id. n. 52. Many lower courts have held that these specific terms of advocacy, commonly
referred to as the “magic words,” are mandatory in order for a communication to be
considered express advocacy and therefore fall under the scope of federal regulation. See,
e.g., Maine Right to Life Comm. v. Federal Election Comm’n, 914 F.Supp. 8, 12 (D. Maine
1996), aff’d per curiam 98 F.3d 1 (1st Cir. 1996), cert. denied, 118 S.Ct. 52 (Oct. 6,
1997)(holding that the FEC had surpassed its authority when it included a “reasonable
person” standard in its definition of “express advocacy” and that the expanded standard
threatened to infringe on First Amendment protected issue advocacy); Vermont Right to Life
Comm. v. Sorrell, 216 F.3d 264 (2d Cir. 2000)(striking down a disclosure requirement
triggered by speech “expressly or implicitly” advocating the election or defeat of a candidate
and finding that the Supreme Court in Buckley had established an “express advocacy
standard” to insure that campaign finance regulations were neither too vague nor intrusive
on First Amendment protected issue advocacy). But see, Federal Election Comm’n v.
Furgatch, 807 F.2d 857 (9th Cir. 1987), cert. denied, 484 U.S. 850, 864 (1987)(upholding
a more expansive definition of express advocacy by including a “reasonable person”
standard).
40 For further discussion of issue and express advocacy, see Whitaker, Campaign Finance
Reform: A Legal Analysis of Issue and Express Advocacy, CRS Report 98-282.

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application.” That is, according to the Court, candidates (especially incumbents) are
intimately tied to public issues involving legislative proposals and governmental
actions.41
Contribution Limits
Four Supreme Court opinions subsequent to Buckley concern contribution
limitations. In the first case, California Medical Association v. Federal Election
Commission (FEC),42 the Court upheld limits on contributions from an
unincorporated association to its affiliated, non-party, multicandidate political action
committee (PAC). In the second case, Citizens Against Rent Control v. Berkeley,43
the Court reviewed a statute severely limiting the ability of an unincorporated
association to raise funds through contributions in connection with its activities in a
ballot initiative, holding that the limit unduly burdened the association’s free speech
and association rights. In the next case, Nixon v. Shrink Missouri Government
PAC,44 (the most recent of Buckley’s progeny), the Court evaluated campaign
contribution limit amounts and considered, inter alia, whether Buckley’s approved
contribution limits established a minimum for state limits today, with or without
adjustment for inflation; the Court held that Buckley did not. Finally, in the most
recent case, FEC v. Beaumont, the Court reaffirmed the prohibition on all
corporations – including tax-exempt corporations – making direct treasury
contributions in connection with federal elections.
Limiting Individual Contributions to Political Action Committees
(California Medical Association v. FEC).
California Medical Assoc. (CMA) v. Federal Election Commission (FEC)45
considered whether the rationale behind the Buckley Court affording such high
protection to campaign contributions extended to political action committee (PAC)
contributions as well. This case involved 2 U.S.C. § 441a(a)(1)(C) of the FECA,
which limits individual contributions to PACs to $5,000 per year.46
An
unincorporated association of medical professionals, (“the doctors”) and the
association’s affiliated political action committee (“the PAC”) challenged the
FECA’s contribution limits, alleging, inter alia, violation of their free speech and
association rights. The doctors argued that § 441a(a)(1)(C) was unconstitutional
because it inhibited their use of the PAC as a proxy for their political expression.47
Moreover, the doctors contended, the contribution limit did not serve a compelling
41 Buckley, 424 U.S. at 42. See also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S.
238 (1986), discussed page 15, infra.
42 453 U.S. 182 (1981).
43 454 U.S. 290 (1981).
44 120 S.Ct. 897 (2000).
45 453 U.S. 182 (1981).
46 See id. at 184. 2 U.S.C. § 441a(f), a related provision, makes it unlawful for a political
committee to knowingly accept contributions exceeding this limit.
47 See id. at 195.

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state interest because the risk of corruption is not present where money does not flow
directly into a candidate’s coffers.48
Unpersuaded, the Supreme Court upheld the FECA’s contribution limits. In
evaluating the doctor’s free speech interest, the Court held that the doctors’ “speech
by proxy” theory was not entitled to full First Amendment protection because
Buckley reserved this protection for independent and “direct” political speech.49 The
Court found that the PAC was not simply the doctors’ “political mouthpiece,” but
was a separate legal entity that received funding “from multiple sources” and
engaged in its own, independent political advocacy.50 Rejecting the doctor’s “speech
by proxy” theory, the Court construed the doctor’s relationship with the PAC as
providing “support” through campaign contributions, which does not warrant the
same level of First Amendment protection as independent political speech.51
In evaluating the state’s interests, the CMA Court rejected the PAC and the
doctors’ argument that the risk of corruption is not present when contributions are
made to a PAC. The Court interpreted this argument as implying that Congress
cannot limit individuals and unincorporated associations from making contributions
to multicandidate political committees. This rationale, the Court held, undercuts the
FECA’s statutory scheme by allowing individuals to circumvent the FECA’s limits
on individual contributions52 and aggregate contributions53 by making contributions
to a PAC. Hence, the doctor’s rationale would erode Congress’ legitimate interest
in protecting the integrity of the political process.54 Under Buckley, the Court held
that the state’s regulatory interests outweighed the doctors’ relatively weak free
speech interest.
Limiting Contributions in Connection With Ballot Initiatives
(Citizens Against Rent Control v. Berkeley).
In Citizens Against Rent Control v. Berkeley,55 the Supreme Court addressed
whether a city ordinance, imposing a $250 limit on contributions made to committees
formed to support or oppose ballot measures, violated a PAC’s liberty interest in free
48 See id.
49 See id. at 196.
50 Id.
51 See id. at 197.
52 “Since multicandidate political committees may contribute up to $5,000 per year to any
candidate, 2 U.S.C. § 441a(a)(2)(A), an individual or association seeking to evade the
$1,000 limit on individual contributions could [channel] funds through a multicandidate
political committee.” CMA, 453 U.S. 198.
53 “Individuals could evade the $25,000 limit on aggregate annual contributions to
candidates if they were allowed to give unlimited sums to multicandidate political
committees, since such committees are not limited in the aggregate amount they may
contribute in any given year.” Id. at 198-199.
54 See id. at 199.
55 454 U.S. 290 (1981).

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speech and free association under the Fourteenth Amendment.56 Citizens Against
Rent Control (“the group”), an unincorporated association formed to oppose a
Berkeley ballot initiative imposing rent control on various properties, challenged the
ordinance’s constitutionality. The Court found for the group, on freedom of
association and freedom of speech grounds.
The Court held that while the limit placed no restraint on an individual acting
alone, it clearly restrained the right of association, as the ordinance burdened
individuals who wished to band together to voice their collective viewpoint on ballot
measures.57 The Court applied “exacting scrutiny” to the ordinance, weighing the
city’s regulatory interests against the group’s associational rights.58 While the Court
noted that Buckley permitted contribution limits to candidates in order to prevent
corruption, contributions tied to ballot measures pose “no risk of corruption.”59
Moreover, as the ordinance required contributors to disclose their identity, the
regulation posed “no risk” that voters would be confused by who supported the
speech of the association.60
Under “exacting scrutiny,” therefore, the $250
contribution limitation was held unconstitutional.
Extending its holding, the Court found that the contribution limitations unduly
burdened the free speech rights of the group and of individuals who wish to express
themselves through the group.61 Applying “exacting scrutiny,” the Court found no
significant public interest in restricting debate and discussion of ballot measures, and
56 The Fourteenth Amendment prohibits state governments from depriving “any person of
life, liberty, or property, without due process of law.” U.S. Const., Amdt. 14 § 1. By virtue
of the inclusion of the term “liberty,” the First Amendment has become applicable to the
states. See Whitney v. California, 274 U.S. 357, 373 (1927)(Brandeis, concurring)(“[A]ll
fundamental rights comprised within the term liberty are protected by the Federal
Constitution from invasion by the States. The right of free speech [and assembly] ... are
fundamental rights.”) Although the plain language of the First Amendment proscribes the
Congress from abridging the freedom of speech and association, Justice Brandeis’ reading
of the Fourteenth Amendment has become a part of the Supreme Court’s incorporation
jurisprudence. See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 779-780
(1978), discussed page 13 infra.
57 See id. at 296. “The freedom of association ‘is diluted if it does not include the right to
pool money through contributions, for funds are often essential if advocacy is to be truly or
optimally effective.’” Id., quoting Buckley, 424 U.S. at 65-66.
58 See id. at 298-199. “Regulation of First Amendment Rights is always subject to exacting
scrutiny.” Id.
59 Id. at 298. “Referenda are held on issues, not candidates for public office. The risk of
corruption perceived in cases involving candidate elections simply is not present in a
popular vote on a public issue.” Id., quoting First National Bank of Boston v. Bellotti, 435
U.S. 765 (1978).
60 See id.
61 “Contributions by individuals to support concerted action by a committee advocating a
position on a ballot measure is beyond question a very significant form of political
expression.” Id. at 298.

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held that the ordinance’s disclosure requirement adequately protected the sanctity of
the political system.62
Establishing Contribution Limit Amounts (Nixon v. Shrink Missouri
Government PAC).
In Nixon v. Shrink Missouri Government PAC,63 the most recent of Buckley’s
progeny, the Supreme Court considered, inter alia, whether Buckley’s approved
limitations on campaign contributions established a minimum for state contribution
limits today, with or without adjustment for inflation. Asserting free speech and
association rights, a political action committee and a candidate challenged the facial
validity of a Missouri regulation limiting contributions to amounts ranging from $275
to $1,075.64 Missouri asserted interests similar to those articulated in Buckley,
namely, that contribution limits serve the governmental interest in avoiding the real
and perceived corruption of the electoral process.65 The Eighth Circuit found these
interests unpersuasive and required Missouri to show that “there were genuine
problems that resulted from the contributions in amounts greater than the limits in
place . . .”66 The Court granted certiorari to review the agreement between the
Eighth Circuit’s evidentiary requirement and Buckley.67
Reversing, the Court found Missouri’s regulatory interests compelling and
negated the proposition that the $1,000 limit upheld by Buckley is a constitutional
floor to state contribution limitations.68 Though the Court reviewed the case under
an exacting scrutiny standard,69 it upheld the regulation since it “was ‘closely drawn’
to match a ‘sufficiently important interest.’”70 Notwithstanding the “narrow tailoring”
requirement, the Court held that the limitation’s dollar amount “need not be ‘fine
tuned.’”71 As the risk of corruption is greater when money flows directly into a
campaign’s coffers, the Court found that contribution limits are more likely to
withstand constitutional scrutiny. In these cases, a contributor’s free speech interest
is less compelling since “contributions” merely index for candidate “support,” not the
62 See id. at 299-300.
63 120 S.Ct. 897 (2000).
64 See id. at 901. The amounts were statutory base lines to be adjusted each year in light of
the cumulative consumer price index. See id.
65 See id. at 902.
66 Id., quoting 161 F.3d 520, 521-522.
67 See id. at 903. “The [First Amendment] has its fullest and most urgent application
precisely to the conduct of campaigns for political office.” Id.
68 See id. at 909.
69 See id. at 903.
70 See id. at 904, quoting Buckley, 424 U.S. at 25.
71 See id. at 904, quoting Buckley, 424 U.S. at 30 n. 3.

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contributor’s “independent” political point of view.72 Addressing the lower court’s
evidentiary requirement, the Court noted that “[t]he quantum of empirical evidence
needed to satisfy heightened judicial scrutiny of legislative judgments will vary up
or down with the novelty and plausibility of the justifications raised.”73 However, it
found that Missouri cleared the standard implied by Buckley and its progeny.74 Given
the relative weakness of the asserted free speech and associational interests, as
compared to the state’s weighty regulatory interest, the Court upheld the Missouri
state campaign contribution limits.
Prohibiting Contributions by Tax-Exempt Corporations (FEC v.
Beaumont).
The Supreme Court in Federal Election Commission (FEC) v. Beaumont,75
evaluated the constitutional application of 2 U.S.C. § 441b of the Federal Election
Campaign Act (FECA) to North Carolina Right to Life (NCRL), a tax-exempt
advocacy corporation. Section 441b prohibits corporations, including tax-exempt
advocacy corporations, from using treasury funds to make direct contributions and
expenditures in connection with federal elections. Corporations seeking to make
such contributions and expenditures may legally do so only through a political action
committee or PAC.
As noted in Beaumont, the Supreme Court has long upheld the ban on corporate
contributions, including those made by corporations that are tax-exempt under the
Internal Revenue Code. However, in FEC v. Massachusetts Citizens for Life, Inc.
(MCFL),76 the Court created an exception for independent expenditures made by such
entities that do not accept significant corporate or labor union money finding that
restrictions on contributions require less compelling justification under the First
Amendment than restrictions on independent expenditures. In FEC v. Beaumont,
NCRL unsuccessfully attempted to extend the MCFL exception to contributions by
tax-exempt corporations.
Finding that limits on contributions are more clearly justified under the First
Amendment than limits on expenditures, the Court reaffirmed the prohibition on all
corporations making direct treasury contributions in connection with federal elections
and upheld the ban on corporate contributions as applied to NCRL. According to the
Court, quoting from some of its earlier decisions, it has upheld the “well established
constitutional validity of ... regulat[ing] corporate contributions,” including
contributions by membership corporations that “might not exhibit all the evil that
72 See id. at 904-905.
73 Id. at 906.
74 See id. at 906-908. For a discussion of Buckley’s evidentiary standards, see accompanying
text.
75 123 S. Ct. 2200 (2003).
76 479 U.S. 238 (1986). See infra pp. 17-18.

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contributions by traditional economically organized corporations exhibit.”77 Stating
its refusal to “second-guess a legislative determination as to the need for prophylactic
measures where corruption is the evil feared,” the Court rejected the argument that
deference to congressional judgments is determined by whether the corporations
affected by a regulation are for-profit or non-profit.78
Beaumont also clarified the standard for review applicable to campaign finance
regulation under the First Amendment. In the view of the Court, determining the
appropriate standard of review depends on the nature of the activity being regulated.
Commencing with its 1976 ruling in Buckley, the Court said that it has treated the
regulation of contributions as only a “marginal” speech restriction, subject to
“relatively complaisant review under the First Amendment,” since contributions are
a less direct form of speech than expenditures.79 Hence, the Court concluded that
instead of requiring a contribution regulation to pass strict scrutiny by meeting the
requirement that it be narrowly tailored to serve a compelling governmental interest,
a contribution regulation involving “significant interference with associational rights”
passes constitutional muster by merely satisfying the lesser requirement of “being
‘closely drawn’ to match a ‘sufficiently important interest.’”80 The Court held that the
Section 441b prohibition passed this lower level of scrutiny because it does not
render a complete ban on corporate contributions, i.e., corporations are still permitted
to use treasury funds to establish, solicit funds for, and pay the administrative
expenses of a political action committee or PAC, which can then in turn make
contributions.81 Invoking its unanimous holding in FEC v. National Right to Work,
the Court rejected the argument that the regulatory burdens on PACs, including
restrictions on their ability to solicit funds, renders a PAC unconstitutional as the
only way that a corporation can make political contributions.82
In summary, the Supreme Court in FEC v. Beaumont upheld the ban on
corporate contributions as applied to NCRL because corporate campaign
contributions – including contributions by tax-exempt advocacy corporations – pose
a risk of harm to the political system. Consequently, the Court found, courts owe
deference to legislative judgments on how best to address their risk of harm. In
addition, the Court announced that limits on contributions are merely “marginal”
77 Id. at 2208 (quoting National Conservative Political Action Comm., 470 U.S. at 500-01).
78 Id. at 2209-10 (quoting National Right to Work Comm., 459 U.S. at 210).
79 The Court explained that “[w]hile contributions may result in political expression if spent
by a candidate or an association ..., the transformation of contributions into political debate
involves speech by someone other than the contributor.” Id. at 2210 (quoting Buckley, 424
U.S. at 20-21).
80 Id. (quoting Buckley, 424 U.S. at 25; cf. Austin, 494 U.S. at 657).
81 In the Court’s view, “[t]he PAC option allows corporate political participation without the
temptation to use corporate funds for political influence, quite possibly at odds with the
sentiments of some shareholders or members, and it lets the government regulate campaign
activity through registration and disclosure, see §§ 432-434, without jeopardizing the
associational rights of advocacy organizations’ members.” Id. at 2211.
82 Id. (citing National Right to Work, 459 U.S. at 201). See infra pp. 22-23.

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speech restrictions subject to a “relatively complaisant” or lesser review under the
First Amendment than the strict scrutiny standard of review.
Expenditure Limits
There are seven post-Buckley Supreme Court holdings relating to expenditure
limits, involving four regulatory contexts. The first line of cases involves the
regulation of corporations. In First National Bank v. Bellotti,83 the Court held that
corporate speech in the form of expenditures, in a state referendum, could not be
suppressed under the First Amendment. In two other corporate speech cases, the
Court generally upheld a requirement that corporate political expenditures be made
from a special segregated fund or political action committee (PAC), but subjected
this requirement to an exception for “purely” political organizations: Federal
Election Commission (FEC) v. Massachusetts Citizens for Life (MCFL)84 and Austin
v. Michigan Chamber of Commerce.85
The second line of cases involves the
regulation of labor unions, where the FEC v. National Right to Work Committee86
Court upheld a regulation restricting from whom labor unions can solicit funds for
their separate segregated funds or PACs.
In the third context, regarding the
regulation of political party expenditures, in Colorado Republican Federal Campaign
Committee v. FEC,87 the Court upheld a political party’s purchase and broadcasting
of radio “attack ads,” finding it was an “uncoordinated independent expenditure.”
The final context examines the regulation of PACs where the Court, in FEC v.
National Conservative Political Action Committee (NCPAC),88 struck down a
prohibition on independent expenditures above $1,000 in support of a “publicly
funded” candidate.
Prohibiting or Limiting Corporate Expenditures (First National Bank
of Boston v. Bellotti; FEC v. Massachusetts Citizens for Life, Inc.;
Austin v. Michigan Chamber of Commerce).
Representing an important new emphasis on First Amendment protection of
corporate free speech, in First National Bank of Boston v. Bellotti, the Supreme
Court held that the fact that the corporation is the speaker does not limit the scope of
its interests in free expression, as the scope of First Amendment protection turns on
the nature of the speech, not the identity of the speaker. However, as demonstrated
in FEC v. Massachusetts Citizens for Life, Inc. (MCFL) and Austin v. Michigan
Chamber of Commerce, the fact that the speaker is a corporation may elevate the
state’s interests in regulating a corporation’s expressive activity, on equitable
grounds. MCFL and Austin appear to expand the Court’s “governmental interest”
jurisprudence from the interest identified in Buckley, i.e., avoiding candidate
83 435 U.S. 765 (1978).
84 479 U.S. 238 (1986).
85 494 U.S. 652 (1990).
86 459 U.S. 197 (1982).
87 518 U.S. 604 (1996).
88 470 U.S. 1 (1985).

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corruption, to a broader interest of avoiding corruption in the entire electoral process.
Although the Court emphasized that equalizing the relative voices of persons and
entities in the political process is not a valid regulatory end, MCFL and Austin appear
to hold that the government has equitable interests in ensuring fair and open debate
in the political marketplace by preventing corporate monopolization. However, in
both cases, the Court stressed that corporate wealth, in itself, is not a valid object of
speech suppression.
In First National Bank of Boston v. Bellotti,89 the Supreme Court evaluated the
constitutional basis of a Massachusetts criminal statute, which in pertinent part,
prohibited corporate expenditures made to influence the outcome of a referendum.
The statute did not completely ban corporate expenditures: it permitted expenditures
when a referendum’s outcome could materially affect a corporation’s business,
property, or assets.90 Bellotti arose in connection with a proposed state constitutional
amendment permitting the state to impose a graduated tax on an individual’s
income.91 When the proposal was presented to the voters, a group of corporations
wanted to expend money to publicize their point of view;92 however, their desire was
burdened by the statutory provision stating that issues concerning the taxation of
individuals do not “materially affect” a corporate interest.93 The corporations sought
to prevent enforcement of the statute, arguing that it was facially invalid under the
First and Fourteenth Amendments.94
In agreement with the corporations, the
Supreme Court struck down the statute.
First, the Bellotti Court considered whether a speaker’s “corporate” identity
substantively affects the extension of First Amendment liberties. On the state’s
contention that the scope of the First Amendment narrows when the speaker is a
corporation, the Court found no constitutional support.95 This conclusion followed
from the Court’s framing of the issues. The Court did not address the question of
whether corporate interests in free speech are coextensive with those of natural
persons, finding the issue peripheral to the case’s efficient resolution.96 Instead, the
threshold issue was whether the statute proscribed speech that “the First Amendment
was meant to protect.”97 In other words, the Court focused on the nature of the
speech, not the identity of the speaker. As the Massachusetts statute burdened
expressive activity addressing a proposed amendment to the state constitution, the
nature of the speech fell squarely within the historic and doctrinal mandate of the
89 435 U.S. 765 (1978).
90 See id. at 768.
91 See id. at 769.
92 See id.
93 See id. at 768.
94 See id. at 769.
95 See id. at 784-786.
96 See id. at 776.
97 Id.

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First Amendment—protecting the free discussion of governmental affairs.98 As the
corporations asserted ‘core’ First Amendment interests, the statute was subject to
“exacting scrutiny,” triggering the remaining issues, where the Court considered
whether the government’s regulatory interests were compelling and obtained by
narrowly tailored means.99
Massachusetts advanced two rationales for the prohibition of corporate speech:
(1) elevating and “sustaining” the individual’s role in electoral politics, and (2)
ensuring that corporate political expenditures are funded by shareholders who agree
with their corporation’s political views.100 In the context of candidate elections, the
Court found these rationales “weighty,” but in a “direct democracy” context, they
were simply not advanced in a material way.101
While ensuring that individuals sustain confidence in government and maintain
an active role in elections is “of the highest importance,”102 the Bellotti Court did not
find that regulating corporate speech would necessarily enhance the role of the
individual in this context. The Court reasoned that the inclusion of corporate
political perspectives does not demonstrate that they will unduly “influence the
outcome of a referendum vote”103 and stressed that restricting the speech of some to
amplify the voice of others is not a valid object suppression.104 As such, the Court
held that permitting corporate speech in a referendum does not exert coercive
pressures (real or perceived) on the ‘direct democracy’ process.105
Likewise, the Bellotti Court rejected the state’s purported interest in protecting
minority shareholders who object to their corporation’s majority political philosophy.
With respect to this interest, the Court found the statute was both over and under-
inclusive. The statute was over-inclusive insofar as it proscribed corporate speech,
where the corporate political policy and speech enjoyed unanimous assent by its
members.106 The Court emphasized that corporate democracy informs the decision
to engage in public debate, that shareholders are presumed to protect their own
interests, and that they are not compelled to contribute additional funds to their
98 See id. at 776-777, citing Mills v. Alabama, 384 U.S. 214, 218 (1966). The Court noted
further that the nature of the corporation’s speech “is the type of speech indispensable to
decision making in a democracy, and this is no less true because the speech comes from a
corporation rather than an individual.” Id. at 777.
99 See id. at 787.
100 See id.
101 See id. at 788.
102 Id. at 789, citing Buckley, 352 U.S. at 27.
103 Id.
104 See id.
105 See id. at 790. Moreover, the Court asserted that the people, not the government, are the
final arbiter and evaluator of the “relative and conflicting arguments” on referendum issues.
Id.
106 See id. at 794.

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corporation’s political activities.107
The statute was under-inclusive insofar as
corporations may exert political influence by lobbying for the passage and defeat of
legislation and may express its political views on an issue when it does arise in
connection to a ballot measure.108 As a result, the Court held that the statute unduly
infringed on the corporations’ protected free speech interest in expressing its political
point of view.109
The Supreme Court in Federal Election Commission (FEC) v. Massachusetts
Citizens for Life (MCFL)110 evaluated the constitutional application of 2 U.S.C. §
441b of the Federal Election Campaign Act (FECA), prescribing a separate
segregated fund or PAC for corporate political expenditures. In this case, the
requirement was applied to a non-profit corporation founded for purely political
purposes. The founding charter of MCFL was to “foster respect for life,” a purpose
motivating various educational and public policy activities.111 Drawing from its
general treasury, the corporation funded a pre-election publication entitled
“Everything You Need to Know to Vote Pro-life,” which triggered litigation under
§ 441b.112 As the publication was tantamount to an “explicit directive [to] vote for
[named] candidates,” MCFL’s speech constituted “express advocacy of the election
of particular candidates,” subjecting the expenditure to regulation113 under the
express advocacy standard first articulated by the Court in Buckley.114 However, as
applied to MCFL, § 441b was held unconstitutional because it infringed on protected
speech without a compelling justification.115
Noting that § 441b burdened expressive activity,116 the Court examined the
government’s regulatory interests in alleviating corruptive influences in elections by
requiring the use of corporate PACs and the Court held that concentration of wealth,
in itself, is not a valid object of regulation.117 The Court noted that a corporation’s
ability to amass large treasuries confers upon it an unfair advantage in the political
marketplace, as general treasury funds derive from investors’ economic evaluation
107 See id. at 794-795.
108 See id. at 793.
109 See id. at 795.
110 479 U.S. 238 (1986).
111 See id. at 241-242.
112 See id. at 242.
113 Id. at 249. The Court found that the publication not only urged voters to vote for “pro-
life” candidates, but also identified and provided photographs of specific candidates. As a
result, the Court determined that the publication could not be considered a “mere
discussion” of public issues. Id.
114 See Buckley v. Valeo, 424 U.S. 1, 44 (1976), discussed page 2, supra.
115 See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. at 263.
116 See id. at 252.
117 Id. at 257 (“political ‘free-trade’ does not necessarily require [that participants] in the
political marketplace [compete with equal resources.]”)

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of the corporation, not their support of the corporation’s politics.118 By requiring the
use of a PAC, § 441b ensures that a corporation’s independent expenditure fund
indexes for the “popular support” of its political ideas.119 The Court held that by
prohibiting general treasury fund expenditures to advance a political point of view,
the regulation “ensured that competition among actors in the political arena is truly
competition among ideas.”120
While the Court found these interests compelling as applied to most
corporations, it held the restriction unconstitutional as applied to MCFL.
Specifically, the MCFL Court found the following characteristics exempt a
corporation from the regulation: (1) its organizational purpose is purely political; (2)
its shareholders have no economic incentive in the organization’s political activities;
and, (3) it was not founded by nor accepts contributions from business organizations
or labor unions.121
Carving out an exception for corporations with these characteristics, the Court
raised equitable grounds for the regulation, stressing that “[r]egulation of corporate
political activity . . . has reflected concern not about the use of the corporate form per
se, but about the potential for the unfair deployment of [general treasury funds] for
political purposes.”122 The Court held that MCFL’s general treasury is not a function
of its economic success, but is an index for membership support of its political
ideas.123 Thus, according to the Court, purely political organizations such as MCFL
cannot constitutionally be regulated by § 441b because their treasuries already
embody what the regulation purports to achieve: an index of the corporation’s
political support. In other words, MCFL is an example of a corporation that is not
at risk for gaining an “unfair” advantage in the electoral process.124
In Austin v. Michigan State Chamber of Commerce,125 the Supreme Court
affirmed and clarified its MCFL holding when it considered whether a non-profit
corporation’s free speech rights were unconstitutionally burdened by a state
prohibition on using general treasury funds to finance a corporation’s independent
expenditures in state elections. While prohibiting expenditures from general treasury
118 See id. at 258, cited by Austin, 494 U.S. at 659.
119 Id. 258, see also Austin, 494 U.S. at 660 (holding that the separate segregated fund
requirement “ensures that expenditures reflect actual public support.”)
120 Id. at 259.
121 See id. at 259, 264.
122 Id. (emphasis added). See also, id. at 263 (“voluntary political organizations do not
suddenly present the specter of corruption merely by assuming the corporate form.”), but
see Austin, 494 U.S. 659, 660 (suggesting that the selection of the corporate form in itself
triggers the state’s regulatory interests. “[T]he unique state-conferred corporate structure
that facilitates the amassing of large treasuries warrants the limit on independent
expenditures.” Id. at 660.)
123 See MCFL, 479 U.S. at 259.
124 See id. at 260.
125 494 U.S. 652 (1990).

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funds,126 the statute permitted independent contributions as long as they were made
from a separate segregated fund or PAC.127 Plaintiff-corporation, a non-profit
founded for political and non-political purposes, asserted that the regulation burdened
its First Amendment interest in political speech by limiting its spending.128 Further,
the plaintiff contended that the regulation was not narrowly tailored to obtain the
state’s interests in avoiding the appearance of corruption by limiting a corporate
entity’s inherent ability to concentrate economic resources.129 Although economic
power, in itself, does not necessarily index the persuasive value of a corporation’s
political ideas, the state argued, a corporation’s structural ability to amass wealth
makes it “a formidable political presence”—a presence which triggers its regulatory
interest.130
Unpersuaded by the corporation’s assertion of right, the Court upheld the
regulation. Under Buckley131 and MCFL,132 the Court addressed whether the
plaintiff’s free speech interests were burdened by the regulation; evaluated the state’s
regulatory interests; and asked whether the regulation was narrowly tailored to
achieve those interests.133 The Court found that the plaintiff’s freedom of expression
was burdened by the regulation, but held that the state achieved its compelling
interests by narrowly tailored means.
By limiting the source of a corporation’s independent expenditures to a special
segregated fund or PAC, the Austin Court held that the regulation burdened the
plaintiff’s freedom of expression.134 The regulation placed various organizational
126 The statute defined “expenditure” as “a payment, donation, loan, pledge, or promise of
payment of money or anything of ascertainable monetary value for goods, materials,
services, or facilities in assistance of, or in opposition to, the nomination or election of a
candidate.” Id. at 655 quoting Mich. Comp. Laws § 169.206(1) (1979).
127 The Michigan Statute was modeled on a provision of the Federal Election Campaign Act
(FECA) requiring corporations and labor unions to use a separate segregated fund or PAC
when making independent expenditures in connection with federal elections. See Austin,
494 U.S. at 656 n. 1.
128 See id. at 658.
129 See id. at 659.
130 Id., quoting Federal Election Comm’n v. Massachusetts Citizens for Life, 479 U.S. 238,
258 (1986)(MCFL).
131 424 U.S. 1 (1976)(per curiam).
132 479 U.S. 238 (1986).
133 See Austin, 494 U.S. at 657. Antecedent to these inquiries, the Court affirmed that the
plaintiff’s interest in using general funds for independent expenditures is “political
expression at the core of our electoral process and of the First Amendment freedoms.” Id.
at 657, quoting Buckley, 424 U.S. at 39. Moreover, the Court noted that the plaintiff’s status
as a corporation did not completely erode its free speech interest under the First
Amendment. See Austin, 494 U.S. at 657, citing Bellotti, 435 U.S. at 777.
134 See Austin, 494 U.S. at 657.

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and financial burdens on a corporation’s management of its PAC,135 limited PAC
solicitations to “corporate members” only;136 and prohibited independent
expenditures from corporate treasury funds.137 Similar to its finding in MCFL, the
Court found that the statute’s requirements burdened, but did not stifle, the
corporation’s exercise of free expression to a point sufficient to raise a genuine First
Amendment claim.138
Thus, to overcome the claim, the regulation had to be
motivated by compelling governmental interests and be narrowly tailored to serve
those interests.
First, the Austin Court evaluated the state’s regulatory interests. The state
argued that a corporation’s “unique legal and economic characteristics”139 renders it
a “formidable political presence” in the market place of ideas, which necessitates
regulation of its political expenditures to “avoid corruption or the appearance of
corruption.”140 The Court stressed that the regulation’s purpose was not to equalize
the political influence of corporate and non-corporate speakers, but to ensure that
expenditures “reflect actual public support for political ideas espoused by
corporations.”141 Moreover, the Court was careful to emphasize that the mere fact
that corporations can amass large treasuries was not its justification for upholding the
statute. Rather, the Court identified the compelling state interest as “the unique state-
conferred corporate structure,” which facilitates the amassing of large amounts of
wealth.142 On these grounds, the Court appeared to recognize a valid regulatory
interest in assuring that the conversion of economic capital to political capital is done
in an equitable way. In other words, the Court held that corruption of the electoral
process itself, rather than just the corruption of candidates, is a compelling regulatory
interest.
After finding a compelling state interest, the Austin Court determined that the
regulation was neither over-inclusive nor under- inclusive with respect to its burden
on expressive activity. Responding to the plaintiff’s argument that the regulation was
over-inclusive insofar as it included closely held corporations, which do not enjoy the
same capital resources as larger or publicly-held corporations, the Court ruled that
the special benefits conferred to corporations and their potential for amassing large
135 For example, the Court noted that the regulation required a corporation to appoint a
treasurer to administer the fund, keep records of the funds’ transactional history, and create
and periodically update an informational statement about the fund for the state. Id. at 658.
136 Id.
137 Id.
138 Id., citing MCFL, 479 U.S. at 252 (plurality opinion).
139 As examples, the Court cited attributes that enhanced a corporation’s ability to manage
and attract capital assets favorable to its shareholder’s proprietary interests, such as
perpetual life, limited liability, and favorable treatment with respect to the accumulation and
distribution of capital. Austin, 494 U.S. at 658-659.
140 Id. at 658, 659, citing Federal Election Comm’n v. National Conservative Political
Action Committee, 470 U.S. 480, 496-497 (1985), and MCFL, 479 U.S. at 258.
141 Id. at 660.
142 Id.

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treasuries justified the restriction.143
Plaintiff’s under-inclusiveness argument,
alleging that the regulatory scheme failed to include unincorporated labor unions with
large capital assets, fared no better. The Court distinguished labor unions from
corporations on the ground that unions “amass large treasuries . . . without the
significant state-conferred advantages of the corporate structure.”144 Here again, the
Court remarked that the corporate structure, not corporate wealth, triggers the state’s
interest in regulating a corporation’s independent expenditures.145 Hence, despite the
burden on political speech, the Court upheld the regulation because it was narrowly
tailored to reach the state’s compelling interests.146
In sum, the Austin Court clarified MCFL and upheld the three-part test for when
a corporation is exempt from the state’s general interest in requiring a corporation to
use a separate segregated fund or PAC for its “independent expenditures.”147 Under
Austin, a corporation is exempt from the PAC requirement when (1) the
“organization was formed for the express purpose of promoting political ideas;”148
(2) no entity or person has a claim on the organization’s assets or earnings, such that
“persons connected with the organization will have no economic disincentive for
disassociating with it if they disagree with its political activity;”149 and (3) the
organization is independent from “the influence of business corporations.”150
143 See id. at 663.
144 Id. at 665.
145 “The desire to counter-balance those advantages unique to the corporate form is the
State’s compelling interest in this case.” Id. But see MCFL, 479 U.S. at 259 (“[r]egulation
of the corporate political activity thus has reflected concern not about the corporate form per
se, but about the potential for unfair deployment of wealth for political purposes.”)
146 The court also considered whether the corporation’s “ideological” purposes, rather than
purely “economic” purposes, provided a constitutional warrant for “excepting” it from the
“segregation” requirement.
This issue is discussed in connection with this Report’s
discussion of MCFL, page15, supra.
147 See Austin, 494 U.S. 662-664.
148 Id. at 662, quoting MCFL, 479 U.S. at 264.
149 Id. at 663, quoting MCFL, 479 U.S. at 264.
150 Id. at 664, citing MCFL, 479 U.S. at 264. For further discussion of Austin v. Michigan
Chamber of Commerce, see Whitaker, Campaign Financing and Corporate Expenditures:
An Analysis of Austin v. Michigan Chamber of Commerce, CRS Report 90-199.

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Restricting From Whom Labor Unions Can Solicit PAC Funds (FEC
v. National Right to Work).151
In Federal Election Commission (FEC) v. National Right to Work Committee
(NRWC),152 the Supreme Court evaluated 2 U.S.C. § 441b(b)(4)(C) of the FECA,
which requires labor unions to solicit only “members” when amassing funds for its
separate segregated fund or PAC. In particular, the Court considered, inter alia,
whether the Federal Election Commission’s (FEC) interpretation of “member”
abridged NRWC’s associational rights and held that it did not. The NRWC, a non-
profit corporation, essentially considered anyone who gave a contribution a
“member.”153
On the other hand, the FEC advanced a narrower definition of
“member,” under which a participant would have to display various levels of
involvement with the soliciting-organization, beyond providing a contribution,154 or
the participant would have to enjoy responsibilities, rather than mere privileges, in
connection to the soliciting organization.155
Persuaded by the FEC’s interpretation, the Court held that NRWC’s asserted
associational liberties were burdened by the FEC’s definition, but were overborne by
151 A case outside the First Amendment and Buckley contexts, but relevant to the regulation
of political activities by labor unions, is Communications Workers of America v. Beck, 487
U.S. 735 (1988). There the Court determined whether the National Labor Relations Act, 29
U.S.C. § 158(a)(3), permits a labor union to expend funds collected from dues paying, non-
union member employees for activities unrelated to collective bargaining, contract
administration, and grievance adjustment. The plain language of the Act permits an
employer and an exclusive bargaining representative to enter into an agreement requiring
all employees in the bargaining unit to pay periodic union dues and initiation fees as a
condition of continued employment, whether or not the employees otherwise wish to be a
member of the union. See Beck, 487 U.S. at 736. The Court found that Congress intended
to correct abuses associated with “closed shop” agreements by limiting compulsory
unionism to regimes that require non-member contributions only insofar as they are
necessary to defray the costs of collective-bargaining efforts made on behalf of union and
non-union employees. See id. at 745. Accordingly, the Court held that the Act does not
permit a union, over the objections of dues paying nonmember employees, to expend funds
collected from them on activities unrelated to collective bargaining, including funds
expended for political activities.
See id. at 744-62.
For further discussion of
Communication Workers of America v. Beck, see The Use of Labor Union Dues For
Political Purposes: A Legal Analysis, by L. Paige Whitaker (CRS Report 97-618).
152 459 U.S. 197 (1982).
153 See id. at 202. “A person who, through his response [to the organization’s publications
or material], evidences an intention to support NRWC in promoting [the organization’s
purposes] qualifies as a member.” Id. Under this definition, contributors to the NRWC’s
segregated fund were construed as members.
154 See id. at 203. “A person is not considered a member . . . if the only requirement for
membership is a contribution to a separate segregated fund.” Federal Election Commission
Regulations, 11 CFR § 114.1(e) (1982).
155 See NRWC, 459 U.S. at 203.

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CRS-23
the state’s regulatory interests.156 While associational rights are “basic constitutional”
freedoms deserving of the “closest scrutiny,” they are not absolute.157 While § 441b
restricts the solicitations of corporations and labor unions, thereby restricting their
freedom of association, the state had an interest in hedging corporations and labor
organizations’ particular legal and economic attributes, since they may be converted
into a political advantage.158 For example, corporations and labor unions can amass
large, financial “war chests,” which could be leveraged to incur political debts from
candidates.159 Indeed, citing Bellotti, the Court affirmed the fundamental importance
of curbing the potential, corruptive influence represented by political debts.160 The
Court was further persuaded by the state’s additional interest in protecting investors
and members who provide financial support to their organization over their objection
to or distaste for the corporation’s majority-political philosophy.161 “In order to
prevent both actual and apparent corruption,” the Court concluded, “Congress aimed
a part of its regulatory scheme at corporations, [reflecting a constitutionally
warranted] judgment that the special characteristics of the corporate structure require
particularly careful regulation.”162
Limiting Political Party Expenditures (Colorado Republican Federal
Campaign Committee v. FEC (Colorado I); FEC v. Colorado Republican
Federal Campaign Committee (Colorado II); FEC v. Democratic
Senatorial Campaign Committee).
In Colorado Republican Federal Campaign Committee v. Federal Election
Commission (Colorado I),163 the Supreme Court examined whether the FECA “Party
Expenditure Provision,”164 which imposed dollar limits on political party
expenditures “in connection with the general election campaign of a [congressional]
candidate,” was unconstitutionally enforced against a party’s funding of radio “attack
ads” directed against its likely opponent in a federal senatorial election. This case
concerned expenditures for radio ads by the Colorado Republican Party (CRP), which
attacked the likely Democratic Party candidate in the 1986 senatorial election.165 At
the time the ads were purchased and aired, the CRP already transferred to the
National Republican Party the full amount of the funds it was permitted to expend
156 See id. at 207.
157 See id. at 206-207.
158 See id. at 207.
159 See id. at 207-208.
160 See id. at 209, citing Bellotti, 435 U.S. at 788, n. 26.
161 See id. at 208.
162 Id. at 209-210. For reasons similar to those in Austin and MCFL, the Court held that the
regulation was narrowly tailored to attain its regulatory interests. See id. at 210.
163 518 U.S. 604 (1996).
164 2 U.S.C. § 441a(d)(3).
165 See 518 U.S. at 612.

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CRS-24
“in connection with” senatorial elections under the FECA.166 Finding that the CRP
exceeded its election spending limits, the FEC noted that the ads were purchased
after the fund transfer and found that the expenditure was “in connection with the
campaign of a candidate for federal office.”167
The CRP challenged the
constitutionality of the Party Expenditure Provision’s “in connection with” language
as unconstitutionally vague168 and objected to how the provision was applied in this
instance.169 Rendering a narrow holding, the Court found for the CRP on a portion
of its “as applied” challenge.
The Court’s ruling turned on whether CRP’s ad purchase was an “independent
expenditure,” a “campaign contribution” or a “coordinated expenditure.”170
“Independent expenditures,” the Court noted, do not raise heightened governmental
interests in regulation because the money is deployed to advance a political point of
view “independent” of a candidate’s viewpoint.171 Indeed, the Court found that when
independent expenditures display little coordination and prearrangement between the
payor and a candidate, they alleviate the expenditure’s corruptive influence on the
polity.172 Moreover, the Court stressed that restrictions on independent expenditures
“represent substantial . . . restraints on the quantity and diversity of political
speech,”173 and constrict “core First Amendment activity.”174 However, restrictions
on “contributions,” which only marginally impair a “contributor’s ability to engage
in free communication,”175 do not burden free speech interests to the same degree and
decrease the risk that corruptive influences will taint the political process.176
Similarly, “coordinated expenditures” are not as inviolable as “independent
expenditures” because they are the functional equivalent of a “contribution” and
accordingly, they trigger regulatory interests in staving off real and perceived
166 At the time of this decision, the FECA excepted political parties from its general
contribution and expenditure limits, which limits “multi-candidate” political committees to
making no more than $5,000 in direct and indirect contributions to candidates. See 2 U.S.C.
§§ 441a(a)(2),(7)(B)(i). Instead, the FECA allowed political parties to make greater
contributions and expenditures. See §§ 441a(d)(1),(3)(A). In this case the CRP qualified
to spend about $103,000 in connection with the senatorial campaign, but transferred that
amount to their national party. See 518 U.S. at 611.
167 See id. at 612. However, at the time of the expenditure, the Republicans had not selected
their senatorial candidate. See id. at 614.
168 See id. at 618.
169 See id. at 613.
170 See id at 614, 615, 618, 622-623.
171 See id. at 614-615, citing Federal Election Comm’n v. National Conservative Political
Action Committee (NCPAC), 479 U.S. 238 (1985).
172 See id. at 615, citing Buckley, 424 U.S. at 47.
173 Id., quoting Buckley, 424 U.S. at 19.
174 Id. at 616.
175 Id. at 614, quoting Buckley, 424 U.S. at 20-21.
176 Id. at 615.

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corruption.177 Given the heightened First Amendment protection of independent
expenditures, the Court did “not see how a provision that limits a political party’s
independent expenditures” could withstand constitutional scrutiny.178
The Court held that the CRP’s ad purchase was an independent expenditure
deserving constitutional protection. In categorizing the expenditure, the Court
emphasized that at the time of the purchase the Republicans had not nominated a
candidate and that the CRP’s chairman independently developed the script, offering
it for review only to the Party’s staff and the Party’s executive director.179 Moreover,
the Court held that the CRP asserted significant free speech interests because
“independent expression of a political party’s philosophy is ‘core’ First Amendment
activity.”180
According to the Court, the CRP’s First Amendment interests were not
counterbalanced by the state’s interest in protecting the sanctity of the political
process, as restraints on “party” expenditures neither eliminate nor alleviate
corruptive pressures on the candidate through an expectation of a quid pro quo.181
The greatest risk for corruption, the Court recognized, resided in the ability of an
individual to circumvent the $1,000 restraint on “individual contributions” by making
a $20,000 party contribution with the expectation that it will benefit a particular
candidate; however, the Court did not believe “that the risk of corruption here could
justify the ‘markedly greater burden on basic freedoms caused by’ . . . limitations on
expenditures.”182 If anything, the Court remarked, an independent expenditure
originating from a $20,000 donation that is controlled by a political party rather than
an individual donor would seem less likely to corrupt than a similar independent
expenditure made directly by a donor.183 Additionally, the Court held that the statute
was not overly broad and was narrowly tailored to obtain its compelling interests.
In FEC v. Colorado Republican Federal Campaign Committee (Colorado II),184
the Supreme Court ruled 5 to 4 that a political party’s coordinated expenditures,
unlike genuine independent expenditures, may be limited in order to minimize
circumvention of FECA contribution limits. While the Court’s opinion in Colorado
I was limited to the constitutionality of the application of FECA’s “Party Expenditure
Provision,”185 to an independent expenditure by the Colorado Republican Party
(CRP), in Colorado II the Court considered a facial challenge to the constitutionality
of the limit on coordinated party spending.
177 See id. at 610, 611, 613, 619.
178 See id. at 615.
179 See id. at 614-615.
180 Id. at 616.
181 See id. at 617.
182 See id., internally quoting Buckley, 424 U.S. at 44.
183 See id.
184 533 U.S. 431 (2001).
185 2 U.S.C. § 441a(d)(3).

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CRS-26
Persuaded by evidence supporting the FEC’s argument, the Court found that
coordinated party expenditures are indeed the “functional equivalent” of
contributions.186 Therefore, in its evaluation, the Court applied the same scrutiny to
the coordinated “Party Expenditure Provision” that it has applied to other
contribution limits, i.e., whether the restriction is “closely drawn” to the “sufficiently
important” governmental interest of stemming political corruption.187 The Court
further determined that circumvention of the law through “prearranged or coordinated
expenditures amounting to disguised contributions” is a “valid theory of
corruption.”188 In upholding the limit, the Court noted that “substantial evidence
demonstrates how candidates, donors, and parties test the limits of the current law,”
which, the Court concluded, “shows beyond serious doubt how contribution limits
would be eroded if inducement to circumvent them were enhanced by declaring
parties’ coordinated spending wide open.”189
Although Federal Election Commission (FEC) v. Democratic Senatorial
Campaign Committee (DSCC)190 dealt primarily with issues of statutory construction
and application, the Supreme Court’s rationale is relevant to the extension of Buckley
and the First Amendment generally. Specifically, the Court addressed whether 2
U.S.C. § 441a(d) of the FECA, which prohibits party committees from making
expenditures on behalf of candidates, extends to party expenditures paid on behalf
of other state and national party committees. This case arose in connection with the
National Republican Senatorial Campaign Committee’s (NRSC) agency relationship
with its state and national party committees, under which the NRSC made various
expenditures on behalf of its state and national affiliates.191 The DSCC challenged
an FEC interpretation of §441a(d) permitting the NRSC to make such
expenditures.192 The Court affirmed the FEC’s interpretation.
Under Buckley, the Court held, inter alia, the FEC’s interpretation was not
inconsistent with the purpose of the FECA.193 Agency agreements do not raise the
risk of corruption nor the appearance of corruption, spawned by the real or perceived
coercive effect of large candidate contributions, so long as the candidate is not a party
to the agency relationship.194 Under an agency agreement, contribution limits to
candidates apply with equal force when a committee transfers its spending authority
to one of its affiliate committees—the agreement does not increase the expenditure
186 Id at 447.
187 Id. at 456.
188 Id. at 446, 456.
189 Id. at 457.
190 454 U.S. 27 (1981).
191 See id. at 29, 30.
192 See id. at 31.
193 See id. at 41.
194 See id.

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CRS-27
of a single additional dollar under the FECA.195 Thus, the Court held, non-candidate
agency agreements are consistent with Buckley and the purposes of the FECA.
Limiting Political Action Committee Independent Expenditures
(FEC v. National Conservative Political Action Committee).
In Federal Election Commission (FEC) v. National Conservative Political
Action Committee (NCPAC),196 the Supreme Court addressed whether the First
Amendment prohibits enforcement of 26 U.S.C. § 9012(f) of the FECA, which
proscribed any “committee, association, or organization” from making expenditures
over $1,000 in furtherance of electing a “publicly financed” presidential candidate.
NCPAC arose in connection with President Reagan’s 1984 bid for reelection, where
the Democratic National Committee sought an injunction under § 9012(f) against
NCPAC from expending “large sums of money” to support President Reagan’s
publicly funded campaign.197
NCPAC, an ideological multicandidate political
committee, argued that § 9012(f) unduly burdened its First Amendment interests in
free expression and free association, as its expenditures were protected as
“independent expenditures.”198 NCPAC intended to raise and expend money for the
purposes of running radio and television ads to encourage voters to elect Reagan.
Holding § 9012(f) unconstitutional, the Court found that the expenditure
limitation burdened NCPAC’s “core” First Amendment speech, that it was supported
by a comparatively weak state interest, and that it was fatally over-inclusive. The
Court noted that in Buckley it had upheld expenditure restrictions on individual and
political advocacy associations; however, in this case, the fact that NCPAC’s
expenditures were not made in coordination with the candidate supplied the
distinguishing key opening the door to First Amendment protection. In sum, a
regulation may not burden a non-candidate’s First Amendment rights based on
whether a candidate accepts or does not accept public funds.
The Court first determined whether NCPAC was entitled to First Amendment
protection. After interpreting the statute as proscribing NCPAC’s expenditures, the
Court concluded that the proscription burdened speech “of the most fundamental
First Amendment activities, [as the discussion of] public issues and debate on the
qualification of candidates [is] integral to [a democratic form of governance.]”199
While the statute did not exact a prior restraint on NCPAC’s political speech, the
Court held that limiting their expenditures to no more than $1,000 in today’s
sophisticated (and expensive) media market was akin to “allowing a speaker in a
195 See id.
196 470 U.S. 480 (1985).
197 See id. at 483.
198 See id. at 490.
199 See id. at 493, quoting Buckley, 424 U.S. at 14.

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CRS-28
public hall to express his views while denying him the use of an amplifying
system.”200
The Court then rejected the argument that NCPAC’s organizational structure
eroded its First Amendment liberty interests.
Associational values and class
consciousness pervaded the Court’s reasoning. For example, the Court stressed that
political committees are “mechanisms by which large numbers of individuals of
modest means can join together in organizations which serve to ‘amplify the voice
of [the committee’s] adherents.’”201 Moreover, the Court did not find that individuals
were speaking through a political committee constitutionally significant: “to say that
. . . collective action in pooling ... resources to amplify [a political perspective] is not
entitled to full First Amendment would [unduly disadvantage those of modest
means].”202
The Court distinguished its holding in National Right to Work
Committee,203 which upheld a FECA regulation of corporations and unions by virtue
of their unique organizational structure, and noted that “organizational structure” is
irrelevant to its facial analysis of § 9012(f) because the statute equally burdens
informal groups who raise and expend money in support of federally funded
presidential candidates.204
After concluding that NCPAC’s First Amendment liberties were burdened by
§ 9012(f), the Court evaluated the state’s regulatory interests and asked whether the
section was narrowly tailored to reach those interests. The state’s interests in
alleviating the specter of corruption through a regulation which proscribes
uncoordinated, independent expenditures by informal and formal organizations were
not compelling to the Court as “independent expenditures may well provide little
assistance to the candidate’s campaign and indeed may prove counter productive.”
As such, the Court held that low probability of truly independent expenditures
materializing into a political debt owed by the candidate to an independent speaker
significantly undermined the state’s asserted interest in deterring actual and perceived
corruption. Entertaining the state’s contention that the ability of political committees
to amass large pools of funds increase the risk of corruption tainting the political
process, the Court held that § 9012(f) was fatally over-inclusive, as it included within
its scope informal groups that barely clear the $1,000 limitation.205
200 Id. See also Buckley, 424 U.S. at 19(“A restriction on the amount of money a person or
group can spend on political communication during a campaign necessarily reduces the
quantity of expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached. This is because virtually every means of
communicating ideas in today’s mass society requires the expenditure of money.”)
201 NCPAC, 470 U.S. at 494, quoting Buckley, 424 U.S. at 22.
202
Id. at 495, distinguishing California Medical Assoc. 453 U.S. at 196,(Marshal,
J.)(plurality opinion) discussed page 8, supra.
203 Discussed at page 20, supra.
204 See NCPAC, 470 U.S. at 496.
205 See id. at 498.

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CRS-29
Disclosure Requirements
Three post-Buckley Supreme Court decisions regarding disclosure requirements
involve two general regulatory contexts. The first line of cases clarifies the scope of
Buckley’s general rule, upholding liberal disclosure requirements. In Buckley v.
American Constitutional Law Foundation (ACLF),206 the Court struck down a
regulation prescribing, among other things, “payee” disclosure in connection with a
ballot initiative.
Moreover, in Brown v. Socialist Workers ‘74 Campaign
Committee,207 the Court struck down a state disclosure requirement as applied to a
minority party that had historically been the object of harassment and discrimination
in the public and private sectors. In the second regulatory context, in Federal
Election Commission v. Akins,208 the Court was presented with the question of
whether certain “political committees,” without the primary purpose of electing
candidates, must nonetheless disclose under the FECA. The Court, however, did not
issue a holding on this issue.
Requiring Reporting and Disclosure (Buckley v. American
Constitutional Law Foundation; Brown v. Socialist Workers ‘74
Campaign Committee; FEC v. Akins).
Reviewing a First Amendment privacy of association and belief claim, the
Supreme Court in Buckley v. American Constitutional Law Foundation (ACLF)209
examined the facial validity of a Colorado ballot-initiative statute requiring initiative-
sponsors to provide “detailed, monthly disclosures” of the name, address, and amount
paid and owed to their petition-circulators.210 Colorado affords its citizens many
“law-making” opportunities by placing initiatives on election ballots for public
ratification.211 A non-profit organization founded to promote the tradition of “direct
democracy” challenged the facial validity of the state’s statute regulating the
initiative-petition process, alleging, inter alia, that the regulation’s disclosure
requirement burdened citizens’ associational and speech interests.212 Colorado did
not dispute that the regulation burdened expressive activity,213 but asserted regulatory
interests in disseminating information concerning the distribution of capital tied to
206 525 U.S. 182 (1999).
207 459 U.S. 87 (1982).
208 524 U.S. 11 (1998).
209 525 U.S. 182 (1999).
210 See id. at 201.
211 See id. at 186. In addition to “disclosure,” the statute limited petition circulation to six
months and required that petition-circulators be at least eighteen years old, be registered to
vote, wear identification badges indicating their status as “volunteer” or “paid,” and attach
a signed affidavit to each petition stating that they have read and understood the laws
governing petition-circulation. See id. at 188-189. The Court, however, only reviewed the
constitutionality of the voting registration, badge, and disclosure requirements. See id. at
186.
212 See id. at 201-202.
213 See id.

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CRS-30
initiative campaigns.214 Colorado asserted that the regulation promotes “informed
public decision-making,” and deters actual and perceived corruption.215
Unimpressed with Colorado’s interests, the ACLF Court upheld the lower
court’s decision,216 finding the disclosure requirement unconstitutional. Under
Buckley, the Court determined that “exacting scrutiny” is necessary where, as here,
a regulation compels the disclosure of campaign related payments.217 After noting
the state’s interest in regulation, the Court examined the fit between the proposed
statutory remedy and its requirements.218 As the lower court did not strike down the
regulation in toto, but upheld the state’s requirements for payor disclosure, the
electorate had access to information about who proposed an initiative and who
funded the circulation of the initiative.219 The added “informational” benefit of
requiring payee disclosure was not supported by the record and would be de minimis
at best, held the Court.220 The Court further noted that, as Meyer v. Grant221
demonstrates, the risk of quid pro quo corruption, while common in candidate
elections, is not as great in ballot initiatives because there is no corrupting object
present, especially at the time of petition.222
Ergo, the Court held that while
compelling state interests motivated Colorado’s regulatory régime, the link between
“payee” disclosures and the state’s interests was too tenuous to warrant First
Amendment infringement.223
In Brown v. Socialist Workers ‘74 Campaign Committee,224 the Supreme Court
considered whether a state disclosure requirement was constitutionally applied, under
the Fourteenth Amendment’s liberty interest in free speech and association, to a
minority political party that historically had been the object of harassment and
214 See id. at 202.
215 See id.
216 The lower court invalidated the disclosure requirement “only insofar as it compels
disclosure of information specific to each paid contributor, in particular, the circulators’
names and addresses and the total amount paid to each circulator.” Id. at 201, citing
American Constitutional Law Foundation v. Meyer, 120 F.3d 1092, 1104-1105 (1997).
217 See id. citing Buckley, 424 U.S. at 64-65. By requiring proponents to identify paid
circulators by name, it would decrease the supply of those willing to be circulators, thereby
“chilling” core political speech. See ACLF, 525 U.S. at 212 (Thomas, J. concurring).
218 See ACLF, 525 U.S. 202.
219 See id. at 203.
220 See id.
221 486 U.S. 414 (1988)(holding a Colorado statute making it a felony to pay for circulation
of initiative petitions to abridge political speech in violation of the First and Fourteenth
Amendments.)
222 See ACLF, 525 U.S. at 203, quoting Meyer, 486 U.S. at 427(“The risk of fraud or
corruption, or the appearance thereof, is more remote at the petition stage of an initiative
than at the time of balloting.”)
223 See ACLF, 525 U.S. at 204.
224 479 U.S. 87 (1982).

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CRS-31
discrimination in the public and private sectors.
The Court reviewed a state
disclosure law requiring candidates to report the names and addresses of contributors
and recipients of campaign funds.225 The principal plaintiff, a small political party
operating in the socialist tradition, sought and obtained a restraining order against
enforcement of the requirement and challenged the constitutionality of the statute as
applied to its fundraising and expenditure activities.226 Agreeing with the plaintiff,
the Court upheld the constitutional challenge.
This was a fact intensive holding.
The Brown Court affirmed Buckley’s
prohibition on compelled disclosures where contributors would be subject to a
reasonable probability of threats, harassment, or reprisals by virtue of their support
of a currently and historically suspect political organization.227 The Court extended
Buckley to protect recipients of campaign contributions.228 Affording the plaintiff
“sufficient flexibility” in the proof of injury, the Court found “substantial evidence”
to support the contention that compliance with the disclosure requirement would
subject both contributors and recipients of campaign funds to the risk of threats,
harassment, or reprisals.229 Plaintiff’s showing of current hostility by government
and private parties included threatening phone calls, hate mail, burning of party
literature, dismissal from employment due to members political affiliation,
destruction of the membership’s property, harassment of the party’s candidate, and
the firing of gunshots at the party’s offices.230 Plaintiff also developed a factual
record of historic discrimination and hostility against the party and its membership.231
From this expansive record, the Court found that the plaintiffs established a
“reasonable probability” that acts of discrimination, threats, reprisals, and hostility
would continue in the future.232
Therefore, the Court held that the disclosure
requirement was unconstitutional as applied to the plaintiffs’ political committees.233
In Federal Election Commission (FEC) v. Akins,234 the Supreme Court did not
issue a holding on whether “an organization that otherwise satisfies the [FECA’s]
definition of ‘political committee,’ and thus is subject to its disclosure requirements,
nonetheless falls outside that definition because ‘its major purpose’ is not ‘the
nomination or election of candidates.’”235
However, the Court reiterated that
“political committees,” for the purposes of the FECA, refer to organizations under
225 See id. at 89.
226 See id. at 88.
227 See id. at 93, citing Buckley, 424 U.S. at 74.
228 See id. at 97, 98.
229 See id. at 101-102.
230 See id. at 99.
231 See id.
232 See id. at 100.
233 See id. at 102.
234 524 U.S. 11 (1998).
235 See id. at 14.

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CRS-32
the “control of a candidate” or with the major purpose of nominating or electing a
candidate to political office.
Requiring Attribution Disclosure by Individuals Distributing
Leaflets in Issue-Based Elections (McIntyre v. Ohio Elections
Commission).
In McIntyre v. Ohio Elections Commission,236 the Supreme Court further defined
the universe of permissible disclosure requirements when it struck down an Ohio
election law, which prohibited the distribution of anonymous campaign literature and
required attribution disclosure of the name of the literature’s author on all distributed
campaign material. McIntyre arose in relation to a school tax levy, where a parent
published and distributed anonymous campaign leaflets opposing the tax measure.237
The Court held that the statute violated the parent’s liberty interest in free speech
under the First Amendment as incorporated by the Fourteenth Amendment.238
As the statute burdened the parent’s First Amendment interest in anonymous
pamphleteering–“an honorable tradition of advocacy and dissent” in U.S. political
history–the Court applied exacting scrutiny to the regulation.239 The Court construed
the First Amendment interest in anonymity as “a shield from the tyranny of the
majority. . . . [exemplifying] the purpose behind the Bill of Rights and of the First
Amendment in particular, [which protects] unpopular individuals from retaliation and
their ideas from suppression at the hand of an intolerant society.”240 The Court
recalled, for example, that the Federalist Papers were published under fictitious
names.241 Balanced against the parent’s interests in anonymous publishing, the Court
acknowledged Ohio’s interest in preventing the dissemination of fraudulent and
libelous statements and in providing voters with information on which to evaluate the
message’s worth. However, the Court found that the state’s interests were not served
by a ban on anonymous publishing because it had a number of regulations designed
to prevent fraud and libel and because a person’s name has little significance to
evaluating the normative weight of a speaker’s message.242 Thus, the Court held that
the statute was not narrowly tailored to serve its regulatory interests and therefore,
struck it down.
The McIntyre Court specifically found that neither Bellotti nor Buckley were
controlling in the McIntyre case: Bellotti concerned the scope of First Amendment
protection afforded to corporations and the relevant portion of the Buckley opinion
236 514 U.S. 334 (1995).
237 See id. at 336.
238 See id. at 357.
239 Id.
240 Id. at 347.
241 See id.
242 See id. at 348, 349.

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concerned mandatory disclosure of campaign expenditures.243 Neither case involved
a prohibition of anonymous campaign literature. In Buckley, the Court noted, it had
stressed the importance of providing the electorate with information regarding the
origin of campaign funds and how candidates spend those funds, but that such
information had no relevance to the kind of “independent activity” in the case of
McIntyre. “Required disclosures about the level of financial support a candidate has
received from various sources are supported by an interest in avoiding the appearance
of corruption that has no application in this case,” the Court stated.244 Moreover, the
Court found that independent expenditure disclosure above a certain threshold, which
the Court upheld in Buckley,245 although clearly impeding First Amendment activity,
is a “far cry from compelled self-identification on all election-related writings.” An
election related document, particularly a leaflet, is often a personally crafted
statement of a political viewpoint and as such, compelled identification is particularly
intrusive, according to the Court.
In contrast, the Court found, expenditure
disclosure, reveals far less information; that is, “even though money may ‘talk,’ its
speech is less specific, less personal, and less provocative than a handbill – and as a
result, when money supports an unpopular viewpoint it is less likely to precipitate
retaliation.”246
Further distinguishing Buckley, the McIntyre Court found that not only is a
prohibition on anonymous campaign literature more intrusive than the disclosure
requirements upheld in Buckley, but it rests on “different and less powerful state
interests.”247 The Federal Election Campaign Act (FECA), at issue in Buckley,
regulates only candidate elections, not referenda or other issue-based elections, and
the Buckley Court had construed “independent expenditures” to only encompass
those expenditures that “expressly advocate the election or defeat of a clearly
identified candidate.”248 Unlike candidate elections, where the government can
identify a compelling governmental interest of avoiding quid pro quo candidate
corruption, issue based elections do not present such a risk and hence, the Court
ruled, the government cannot justify such an intrusion on free speech.249
Conclusion
This report has discussed the 1976 landmark Supreme Court decision, Buckley
v. Valeo, which established the constitutional framework for campaign finance
regulation, and the Court’s extension of Buckley in subsequent cases. Although the
Court has provided much guidance with regard to the constitutionality of various
243 Id. at 353.
244 Id. at 354.
245 Id. at 355, citing Buckley, 424 U.S. at 75-76. In Buckley, the Supreme Court had upheld
a requirement that independent expenditures above a certain threshold be reported to the
FEC.
246 Id.
247 Id. at 356.
248 Id., quoting Buckley, 424 U.S. at 80.
249 See id.

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aspects of campaign finance regulation, many questions still remain unanswered.
Since 1976, the nature of campaign financing has changed significantly, particularly
with the increased use of unregulated soft money250 and issue advertising. The
Supreme Court, however, has not yet specifically addressed the regulation of these
recently popular campaign activities. Therefore, while awaiting further guidance
from the Court, those proposing or evaluating campaign finance legislation rely on
Buckley and its progeny for constitutional direction.
250 For a discussion of soft money, see Campaign Finance: Constitutional and Legal Issues
of Soft Money, by L. Paige Whitaker (CRS Issue Brief IB98025).

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