Order Code RL30669
The Constitutionality of Campaign Finance
Regulation: Buckley v. Valeo and Its
Supreme Court Progeny
Updated November 18, 2008
L. Paige Whitaker
Legislative Attorney
American Law Division

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The Constitutionality of Campaign Finance Regulation:
Buckley v. Valeo and Its Supreme Court Progeny
Summary
Political expression is at the heart of First Amendment activity and the Supreme
Court has granted it great 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. The Court
upheld some infringements on free speech, however, in order to further the
governmental interests of protecting the electoral process from corruption or the
appearance of corruption.
In Buckley, the Supreme Court considered the constitutionality of the Federal
Election Campaign Act of 1971 (FECA), requiring political committees to disclose
campaign contributions and expenditures and limiting, 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, a court will evaluate whether the government’s interests in
regulating are compelling, examine whether the regulation burdens and outweighs
First Amendment liberties, and inquire as to whether the regulation is narrowly
tailored to serve the government’s interests. If a regulation meets all three criteria,
a court will uphold it.
This report first discusses the key 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 several subsequent
cases, evaluating them in various 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; Randall v. Sorrell); disclosure requirements (Buckley v. American
Constitutional Law Foundation; Brown v. Socialist Workers ‘74 Campaign
Committee; FEC v. Akins; McIntyre v. Ohio Elections Commission); and political
party soft money and electioneering communication restrictions (McConnell v. FEC;
Wisconsin Right to Life, Inc. v. FEC (WRTL II)).

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Buckley v. Valeo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Contribution and Expenditure Limits . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Reporting and Disclosure Requirements . . . . . . . . . . . . . . . . . . . . . . . . 5
Voluntary Presidential Election Expenditure Limits Linked
with Public Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issue and Express Advocacy Communications . . . . . . . . . . . . . . . . . . . 7
Contribution Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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) . . . . . . . . . . . . . . . 10
Prohibiting Contributions by Tax-Exempt Corporations
(FEC v. Beaumont) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Expenditure Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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) . . . . . . . . . . . . . . . . . . . . . . . . . 21
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Limiting Political Action Committee Independent Expenditures
(FEC v. National Conservative Political Action Committee) . . . 26
Limiting Expenditures by Candidates (Randall v. Sorrell) . . . . . . . . . 28
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
Political Party Soft Money and Electioneering Communication Restrictions . . . 34
McConnell v. FEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Restricting Political Party Soft Money . . . . . . . . . . . . . . . . . . . . . . . . 34
Prohibiting Corporate and Labor Union Treasury Fund
Financing of Electioneering Communications . . . . . . . . . . . . . . . 37

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Requiring Sponsors of Election-Related Advertisements
to Self-Identify (“Stand-By-Your-Ad Provision”) . . . . . . . . . . . . 39
Requiring Political Parties to Choose Between Coordinated
and Independent Expenditures After Nominating a Candidate . . 39
Prohibiting Campaign Contributions by Minors Age 17 and Under . . 40
Establishing Staggered Increases in Contribution Limits if
Opponent Spends Certain Amount in Personal Funds
(“Millionaire Provisions”): Challengers Held to Lack Standing 41
Supreme Court Deference to Congressional Findings . . . . . . . . . . . . . 41
Wisconsin Right to Life, Inc. v. FEC (WRTL II) . . . . . . . . . . . . . . . . . . . . . 41
Prohibiting Corporate and Labor Union Treasury Fund
Financing of Electioneering Communications . . . . . . . . . . . . . . . 43
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

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The Constitutionality of Campaign Finance
Regulation: Buckley v. Valeo and Its
Supreme Court Progeny
Introduction
Campaign finance regulation invokes two conflicting values implicit in the
application of the First Amendment’s guarantee of free political speech and
association. On the one hand, 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.”1 On the other hand,
according to the Court in its landmark 1976 decision, Buckley v. Valeo,2 an absolutely
free “political marketplace” is neither mandated by the First Amendment, nor is it
desirable, because when left uninhibited by reasonable regulation, corruptive
pressures undermine the integrity of political institutions and undercut public
confidence in republican governance. In other words, although the Court reveres the
freedoms of speech and association, it has 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 between 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.3
1 Roth v. United States, 354 U.S. 476, 484 (1957).
2 424 U.S. 1 (1976).
3 For example, in a line of cases involving the regulation of corporations, the Court
endeavored to resolve whether the First Amendment’s value for open debate by diverse
participants permits the government to impose regulations designed to promote fairness and
prevent corporate monopolization of the political marketplace; and whether the First
Amendment’s value for liberty proscribes the government from regulating the political
speech and association rights of corporations. Compare Buckley v. Valeo, 424 U.S. 1, 48-
49 (1976) (“[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
(continued...)

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In Buckley, the Court reviewed the constitutionality of the Federal Election
Campaign Act of 1971 (FECA),4 requiring 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 subsequent
cases. Buckley’s extensions are evaluated in various regulatory contexts: contribution
limits, expenditure limits, disclosure requirements, and political party spending and
electioneering communication restrictions. When discussing the Court’s rationale
in each case, facts relevant to a regulator are highlighted: 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); the triggers of the regulatory interests (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 (e.g., 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 1974,5 and the
3 (...continued)
Amendment.”), with Buckley, 424 U.S. at 49 (“[T]he First Amendment ... was designed ‘to
secure the widest possible dissemination of information from diverse and antagonistic
sources’” (quoting New York Times v. Sullivan, 376 U.S. 254, 266 (1964)).
4 2 U.S.C. § 431 et seq.
5 In summary, 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
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 ©) a provision establishing the Federal Election
Commission to administer and enforce the statute. The Court evaluated “spending” and
(continued...)

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Presidential Election Campaign Fund Act.6 The Court upheld the constitutionality
of certain statutory provisions, including (1) contribution limitations to candidates
for federal office,7 (2) disclosure and record-keeping provisions,8 and (3) the system
of public financing of presidential elections.9 The Court found other provisions
unconstitutional, including (1) expenditures limitations on candidates and their
political committees,10 (2) the $1,000 limitation on independent expenditures,11 (3)
expenditure limitations by candidates from their personal funds,12 and (4) the method
of appointing members to the Federal Election Commission.13 In general, the Court
struck down expenditure limitations, but upheld reasonable contribution limitations,
disclosure requirements,14 and voluntary spending limits linked with public financing
provisions.

In considering the constitutionality of these statutes, the Buckley Court applied
the standard of review known as “exacting scrutiny,” 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.
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
5 (...continued)
“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.
6 26 U.S.C. § 9001 et seq.
7 2 U.S.C. § 441a.
8 2 U.S.C. § 434.
9 See Subtitle H of the Internal Revenue Code of 1954, codified at 26 U.S.C. § 9001 et seq.
10 Formerly 18 U.S.C. § 608(c)(1)(C-F). The Court made an exception for presidential
candidates who accept public funding.
11 Formerly 18 U.S.C. § 608e.
12 Formerly 18 U.S.C. § 608a.
13 Formerly 2 U.S.C. § 437c(a)(1)(A-C).
14 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 infra, and Brown v. Socialist Workers, 459 U.S.
87 (1982), discussed 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 infra.

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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.15 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.”16 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.”17 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.18
However, according to the Court, contributions and expenditures invoke
different degrees of First Amendment protection.19 Recognizing contribution
limitations as one of 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.”20 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.]”21 Short
of a showing of actual corruption, the Court found that the appearance of corruption
from large campaign contributions also justified these limitations.22
Reasonable contribution limits, the Court noted, leave “people free to engage
in independent political expression, to associate [by] volunteering their services, and
to assist [candidates by making] limited, but nonetheless substantial
[contributions].”23 Further, 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,
15 See Buckley, 424 U.S. at 21.
16 Id. at 19.
17 Id. at 15.
18 Id. at 17.
19 See id. at 24.
20 Id. at 59.
21 Id. at 27.
22 See id.
23 Id. at 28.

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candidates, and political parties.”24 Finally, the Court found that the contribution
limits of FECA were narrowly tailored insofar as the act “focuses precisely on the
problem of large campaign contributions.”25
On the other hand, the Court determined that 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.26 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.”27 “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.28
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.29 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
limitation.30
Reporting and Disclosure Requirements. In Buckley, the Supreme Court
generally upheld 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
24 Id. at 29.
25 Id.
26 Id. at 39.
27 Id.
28 Id. at 19.
29 Id. at 55.
30 Id. at 51-54. The Court distinguished this holding from its validation of Subtitle H, which
provides for the public financing of presidential elections. Limitations on expenditures by
presidential candidates receiving public funds were distinguishable because the acceptance
of public funds was voluntary.

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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,31 then disclosure may fail
constitutional scrutiny as applied to a particular organization.32
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.33 The Court found no
First Amendment violation in disallowing taxpayers to earmark their $1.00
“checkoff” for 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 by Congress uses public money in a manner
to which some taxpayers object.”34 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.35 The Court held that “[a]ny risk
of harm to minority interests ... cannot overcome the force of the governmental
31 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 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.
32 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
infra.
33 26 U.S.C. § 9001 et seq.
34 See Buckley, 424 U.S. at 85.
35 See id. at 86.

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interests against the use of public money to foster frivolous candidacies, create a
system of splintered parties, and encourage unrestrained factionalism.”36
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.37 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.”38 Communications not meeting the express advocacy
definition are commonly referred to as issue advocacy communications.
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
application.” That is, candidates — especially incumbents — are intimately tied to
public issues involving legislative proposals and governmental actions, according to
the Court.39
Contribution Limits
This section analyzes several Supreme Court opinions decided subsequent to
Buckley in which the Court evaluated the constitutionality of contribution limitations.
Specifically, in California Medical Association v. Federal Election Commission
(FEC),40 the Court upheld limits on contributions from an unincorporated association
to its affiliated, non-party, multicandidate political action committee (PAC). In
Citizens Against Rent Control v. Berkeley,41 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 Nixon
v. Shrink Missouri Government PAC,42 the Court evaluated campaign contribution
limit amounts and considered, among other things, whether Buckley’s approved
contribution limits established a minimum for state limits, with or without
36 Id. at 101.
37 Id. at 44.
38 Id., n. 52.
39 Buckley, 424 U.S. at 42. See also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S.
238 (1986), discussed infra.
40 453 U.S. 182 (1981).
41 454 U.S. 290 (1981).
42 528 U.S. 377 (2000).

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adjustment for inflation, and concluded that Buckley did not. Finally, in 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 Association
(CMA) v. Federal Election Commission (FEC)43 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 FECA, which limits individual contributions
to PACs to $5,000 per year.44 An unincorporated association of medical
professionals, (“the doctors”) and the association’s affiliated political action
committee (“the PAC”) challenged 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.45 Moreover, the doctors contended that the
contribution limit did not serve a compelling state interest because the risk of
corruption is not present where money does not flow directly into a candidate’s
coffers.46
Unpersuaded, the Supreme Court upheld 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.47 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.48 In rejecting the doctors’
“speech by proxy” theory, the Court construed the doctors’ 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.49
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
FECA’s statutory scheme by allowing individuals to circumvent FECA’s limits on
43 453 U.S. 182 (1981).
44 See id. at 184. A related provision, 2 U.S.C. § 441a(f), makes it unlawful for a political
committee to knowingly accept contributions exceeding this limit.
45 See id. at 195.
46 See id.
47 See id. at 196.
48 Id.
49 See id. at 197.

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individual contributions50 and aggregate contributions51 by making contributions to
a PAC. Hence, the doctor’s rationale would erode Congress’ legitimate interest in
protecting the integrity of the political process.52 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,53 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 speech and free association under
the Fourteenth Amendment.54 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.55 The Court applied “exacting scrutiny” to the ordinance, weighing the
city’s regulatory interests against the group’s associational rights.56 While the Court
50 CMA, 453 U.S. 198 (“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”).
51 Id. at 198-199 (“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”).
52 See id. at 199.
53 454 U.S. 290 (1981).
54 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 infra.
55 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).
56 See id. at 298-199 (finding that “[r]egulation of First Amendment Rights is always subject
(continued...)

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noted that Buckley permitted contribution limits to candidates in order to prevent
corruption, contributions tied to ballot measures pose “no risk of corruption.”57
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.58 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.59 Applying “exacting scrutiny,” the Court found no
significant public interest in restricting debate and discussion of ballot measures, and
held that the ordinance’s disclosure requirement adequately protected the sanctity of
the political system.60
Establishing Contribution Limit Amounts (Nixon v. Shrink Missouri
Government PAC). In Nixon v. Shrink Missouri Government PAC,61 the Supreme
Court considered, among other things, 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
$1,075.62 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.63 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
56 (...continued)
to exacting scrutiny”).
57 Id. at 298 (noting that “[r]eferenda 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” (quoting First National Bank of Boston v. Bellotti, 435
U.S. 765 (1978)).
58 See id.
59 Id. at 298 (finding that “[c]ontributions 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”).
60 See id. at 299-300.
61 528 U.S. 377 (2000).
62 Id. at 901. The amounts were statutory base lines to be adjusted each year in light of the
cumulative consumer price index. See id.
63 Id. at 902.

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place . . .”64 The Court granted certiorari to review the agreement between the
Eighth Circuit’s evidentiary requirement and Buckley.65
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.66 Though the Court reviewed the case under
an exacting scrutiny standard,67 it upheld the regulation since it “was ‘closely drawn’
to match a ‘sufficiently important interest.’”68 Notwithstanding the “narrow tailoring”
requirement, the Court held that the limitation’s dollar amount “need not be ‘fine
tuned.’”69 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
contributor’s “independent” political point of view.70 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.”71 However, it
found that Missouri cleared the standard implied by Buckley and its progeny.72 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,73 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 it notes in Beaumont, the Supreme Court has long upheld the ban on
corporate contributions, including those made by corporations that are tax-exempt
64 Id., quoting 161 F.3d 520, 521-522.
65 See id. at 903 (announcing that [t]he [First Amendment] has its fullest and most urgent
application precisely to the conduct of campaigns for political office.” Id.
66 Id. at 909.
67 Id. at 903.
68 Id. at 904, quoting Buckley, 424 U.S. at 25.
69 Id. at 904, quoting Buckley, 424 U.S. at 30, n. 3.
70 Id. at 904-905.
71 Id. at 906.
72 See id. at 906-908.
73 539 U.S. 146 (2003).

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under the Internal Revenue Code. However, in FEC v. Massachusetts Citizens for
Life, Inc. (MCFL),74 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
contributions by traditional economically organized corporations exhibit.”75 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.76
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.77 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.’”78 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
74 479 U.S. 238 (1986), discussed infra.
75 Beaumont, 539 U.S. at 157 (quoting National Conservative Political Action Comm., 470
U.S. at 500-01).
76 Id. (quoting National Right to Work Comm., 459 U.S. at 210).
77 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 161 (quoting Buckley, 424
U.S. at 20-21).
78 Id. (quoting Buckley, 424 U.S. at 25).

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contributions.79 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.80
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”
speech restrictions subject to a “relatively complaisant” or lesser review under the
First Amendment than the strict scrutiny standard of review.
Expenditure Limits
This section analyzes several Supreme Court opinions decided subsequent to
Buckley in which the Court evaluated the constitutionality of expenditure limitations.
The first area of case law involves the regulation of corporations. In First National
Bank v. Bellotti,81 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)82 and Austin v. Michigan Chamber of Commerce.83
The second area of case law involves the regulation of labor unions. In FEC v.
National Right to Work Committee84 the Court upheld a regulation restricting from
whom labor unions can solicit funds for their separate segregated funds or PACs.
The third area of case law addresses the regulation of political party expenditures.
In Colorado Republican Federal Campaign Committee v. FEC,85 the Court upheld
a political party’s purchase and broadcasting of radio “attack ads,” finding it was an
“uncoordinated independent expenditure.” The fourth area of case law examines the
79 See id. at 162-63. (“The 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”).
80 Id. (citing National Right to Work, 459 U.S. at 201).
81 435 U.S. 765 (1978).
82 479 U.S. 238 (1986).
83 494 U.S. 652 (1990).
84 459 U.S. 197 (1982).
85 518 U.S. 604 (1996).

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regulation of PACs. In FEC v. National Conservative Political Action Committee
(NCPAC),86 the Court struck down a prohibition on independent expenditures above
$1,000 in support of a “publicly funded” candidate.
Finally, the issue of a state statute limiting state office candidate expenditures
is examined. In Randall v. Sorrell,87 the Court struck down a Vermont statute
imposing expenditure limits finding that the state’s primary justification for the limits
was not significantly different from Congress’s rationale for the expenditure limits
that the Court struck down in Buckley.
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 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,88 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.89 Bellotti arose in connection with a proposed state constitutional
amendment permitting the state to impose a graduated tax on an individual’s
income.90 When the proposal was presented to the voters, a group of corporations
wanted to expend money to publicize their point of view;91 however, their desire was
burdened by the statutory provision stating that issues concerning the taxation of
86 470 U.S. 1 (1985).
87 548 U.S. 230 (2006).
88 435 U.S. 765 (1978).
89 Id. at 768.
90 Id. at 769.
91 Id.

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individuals do not “materially affect” a corporate interest.92 The corporations sought
to prevent enforcement of the statute, arguing that it was facially invalid under the
First and Fourteenth Amendments.93 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.94 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.95 Instead, the
threshold issue was whether the statute proscribed speech that “the First Amendment
was meant to protect.”96 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
First Amendment — protecting the free discussion of governmental affairs.97 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.98
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.99 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.100
92 Id. at 768.
93 Id. at 769.
94 See id. at 784-786.
95 See id. at 776.
96 Id.
97 See id. at 776-777 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966) (noting 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”).
98 Id. at 787.
99 Id.
100 Id. at 788.

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While ensuring that individuals sustain confidence in government and maintain
an active role in elections is “of the highest importance,”101 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”102 and stressed that restricting the speech of some to
amplify the voice of others is not a valid object suppression.103 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.104
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.105 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
corporation’s political activities.106 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.107 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.108
The Supreme Court in Federal Election Commission (FEC) v. Massachusetts
Citizens for Life (MCFL)109 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.110 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
101 Id. at 789 (citing Buckley, 352 U.S. at 2).
102 Id.
103 Id.
104 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.
105 See id. at 794.
106 See id. at 794-795.
107 See id. at 793.
108 See id. at 795.
109 479 U.S. 238 (1986).
110 See id. at 241-242.

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§ 441b.111 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 regulation112 under the
express advocacy standard first articulated by the Court in Buckley.113 However, as
applied to MCFL, § 441b was held unconstitutional because it infringed on protected
speech without a compelling justification.114
Noting that § 441b burdened expressive activity,115 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.116 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
of the corporation, not their support of the corporation’s politics.117 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.118 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.”119
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.120
Carving out an exception for corporations with these characteristics, the Court
raised equitable grounds for the regulation, stressing that “[r]egulation of corporate
111 See id. at 242.
112 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.
113 See Buckley v. Valeo, 424 U.S. 1, 44 (1976), supra.
114 See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. at 263.
115 See id. at 252.
116 Id. at 257 (“political ‘free-trade’ does not necessarily require [that participants] in the
political marketplace [compete with equal resources]”).
117 See id. at 258 (cited by Austin, 494 U.S. at 659).
118 Id. 258, see also Austin, 494 U.S. at 660 (holding that the separate segregated fund
requirement “ensures that expenditures reflect actual public support”).
119 Id. at 259.
120 See id. at 259, 264.

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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.”121 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.122 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.123
In Austin v. Michigan State Chamber of Commerce,124 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
funds,125 the statute permitted independent contributions as long as they were made
from a separate segregated fund or PAC.126 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.127 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.128 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
121 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”).
122 See MCFL, 479 U.S. at 259.
123 See id. at 260.
124 494 U.S. 652 (1990).
125 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)).
126 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.
127 See id. at 658.
128 See id. at 659.

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makes it “a formidable political presence” — a presence which triggers its regulatory
interest.129
Unpersuaded by the corporation’s assertion of right, the Court upheld the
regulation. Under Buckley130 and MCFL,131 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.132 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.133 The regulation placed various organizational
and financial burdens on a corporation’s management of its PAC,134 limited PAC
solicitations to “corporate members” only;135 and prohibited independent
expenditures from corporate treasury funds.136 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.137 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”138 renders it
129 Id. (quoting Federal Election Comm’n v. Massachusetts Citizens for Life, 479 U.S. 238,
258 (1986) (MCFL)).
130 424 U.S. 1 (1976) (per curiam).
131 479 U.S. 238 (1986).
132 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).
133 See Austin, 494 U.S. at 657.
134 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.
135 Id.
136 Id.
137 Id. (citing MCFL, 479 U.S. at 252 (plurality opinion)).
138 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
(continued...)

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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.”139 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.”140 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.141 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
treasuries justified the restriction.142 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.”143 Here again, the
Court remarked that the corporate structure, not corporate wealth, triggers the state’s
interest in regulating a corporation’s independent expenditures.144 Hence, despite the
burden on political speech, the Court upheld the regulation because it was narrowly
tailored to reach the state’s compelling interests.145
138 (...continued)
distribution of capital. Austin, 494 U.S. at 658-659.
139 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)).
140 Id. at 660.
141 Id.
142 See id. at 663.
143 Id. at 665.
144 Id. (“The desire to counter-balance those advantages unique to the corporate form is the
State’s compelling interest in this case.”) 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”).
145 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.

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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.”146 Under
Austin, a corporation is exempt from the PAC requirement when (1) the
“organization was formed for the express purpose of promoting political ideas;”147
(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;”148 and (3) the
organization is independent from “the influence of business corporations.”149
Restricting From Whom Labor Unions Can Solicit PAC Funds (FEC
v. National Right to Work).150 In Federal Election Commission (FEC) v.
National Right to Work Committee (NRWC),151 the Supreme Court evaluated 2
U.S.C. § 441b(b)(4)(C) of 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.”152 On the other hand, the
FEC advanced a narrower definition of “member,” under which a participant would
146 See Austin, 494 U.S. 662-664.
147 Id. at 662 (quoting MCFL, 479 U.S. at 264).
148 Id. at 663 (quoting MCFL, 479 U.S. at 264).
149 Id. at 664 (citing MCFL, 479 U.S. at 264).
150 Outside the First Amendment and Buckley contexts, but relevant to the regulation of
political activities by labor unions, in Communications Workers of America v. Beck, 487
U.S. 735 (1988), the Supreme Court considered 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 CRS Report 97-618, The Use of Labor
Union Dues For Political Purposes: A Legal Analysis, by L. Paige Whitaker.
151 459 U.S. 197 (1982).
152 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.

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CRS-22
have to display various levels of involvement with the soliciting-organization,
beyond providing a contribution,153 or the participant would have to enjoy
responsibilities, rather than mere privileges, in connection to the soliciting
organization.154
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
the state’s regulatory interests.155 While associational rights are “basic constitutional”
freedoms deserving of the “closest scrutiny,” they are not absolute.156 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.157 For example, corporations and labor unions can amass
large, financial “war chests,” which could be leveraged to incur political debts from
candidates.158 Indeed, citing Bellotti, the Court affirmed the fundamental importance
of curbing the potential, corruptive influence represented by political debts.159 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.160 “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.”161
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),162 the Supreme Court
examined whether the FECA “Party Expenditure Provision,”163 which imposed dollar
limits on political party expenditures “in connection with the general election
153 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”). 11 CFR § 114.1(e) (1982).
154 See NRWC, 459 U.S. at 203.
155 See id. at 207.
156 See id. at 206-207.
157 See id. at 207.
158 See id. at 207-208.
159 See id. at 209 (citing Bellotti, 435 U.S. at 788, n. 26.).
160 See id. at 208.
161 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.
162 518 U.S. 604 (1996).
163 2 U.S.C. § 441a(d)(3).

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CRS-23
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.164 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 “in connection with” senatorial elections under FECA.165
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.”166 The CRP
challenged the constitutionality of the Party Expenditure Provision’s “in connection
with” language as unconstitutionally vague167 and objected to how the provision was
applied in this instance.168 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.”169
“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.170 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.171 Moreover, the Court stressed that restrictions on independent expenditures
“represent substantial . . . restraints on the quantity and diversity of political
speech,”172 and constrict “core First Amendment activity.”173 However, restrictions
on “contributions,” which only marginally impair a “contributor’s ability to engage
164 See 518 U.S. at 612.
165 At the time of this decision, FECA exempted 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, 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.
166 See id. at 612. However, at the time of the expenditure, the Republicans had not selected
their senatorial candidate. See id. at 614.
167 See id. at 618.
168 See id. at 613.
169 See id at 614, 615, 618, 622-623.
170 See id. at 614-615 (citing Federal Election Comm’n v. National Conservative Political
Action Committee (NCPAC), 479 U.S. 238 (1985)).
171 See id. at 615 (citing Buckley, 424 U.S. at 47).
172 Id. (quoting Buckley, 424 U.S. at 19).
173 Id. at 616.

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CRS-24
in free communication,”174 do not burden free speech interests to the same degree and
decrease the risk that corruptive influences will taint the political process.175
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
corruption.176 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.177
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.178 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.”179
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.180
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.”181 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.182 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),183
the Supreme Court ruled 5 to 4 that a political party’s coordinated expenditures,
174 Id. at 614 (quoting Buckley, 424 U.S. at 20-21).
175 Id. at 615.
176 See id. at 610, 611, 613, 619.
177 See id. at 615.
178 See id. at 614-615.
179 Id. at 616.
180 See id. at 617.
181 See id. (quoting Buckley, 424 U.S. at 44).
182 See id.
183 533 U.S. 431 (2001).

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CRS-25
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,”184 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.
Persuaded by evidence supporting the FEC’s argument, the Court found that
coordinated party expenditures are indeed the “functional equivalent” of
contributions.185 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.186 The Court
further determined that circumvention of the law through “prearranged or coordinated
expenditures amounting to disguised contributions” is a “valid theory of
corruption.”187 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.”188
Although Federal Election Commission (FEC) v. Democratic Senatorial
Campaign Committee (DSCC)189 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 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.190 The DSCC challenged
an FEC interpretation of §441a(d) permitting the NRSC to make such
expenditures.191 The Court affirmed the FEC’s interpretation.
184 2 U.S.C. § 441a(d)(3).
185 Id at 447.
186 Id. at 456.
187 Id. at 446, 456.
188 Id. at 457.
189 454 U.S. 27 (1981).
190 See id. at 29, 30.
191 See id. at 31.

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CRS-26
Under Buckley, the Court held, inter alia, the FEC’s interpretation was not
inconsistent with the purpose of FECA.192 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.193 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
of a single additional dollar under FECA.194 Thus, the Court held, non-candidate
agency agreements are consistent with Buckley and the purposes of 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),195 the Supreme Court held that the First Amendment prohibits
enforcement of 26 U.S.C. § 9012(f) of 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.196
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.”197
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
192 See id. at 41.
193 See id.
194 See id.
195 470 U.S. 480 (1985).
196 See id. at 483.
197 See id. at 490.

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CRS-27
qualification of candidates [is] integral to [a democratic form of governance.]”198
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
public hall to express his views while denying him the use of an amplifying
system.”199
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.’”200 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].”201 The Court distinguished its holding in National Right to Work
Committee,202 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.203
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
198 See id. at 493 (quoting Buckley, 424 U.S. at 14).
199 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.”)
200 NCPAC, 470 U.S. at 494 (quoting Buckley, 424 U.S. at 22).
201 Id. at 495 (distinguishing California Medical Assoc. 453 U.S. at 196 (Marshal, J.)
(plurality opinion)).
202 Discussed supra.
203 See NCPAC, 470 U.S. at 496.

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CRS-28
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.204
Limiting Expenditures by Candidates (Randall v. Sorrell). In Randall
v. Sorrell,205 the Supreme Court struck down as unconstitutional a Vermont statute
imposing expenditure limits on state office candidates. The expenditure limits
imposed were approximately $300,000 for governor, $100,000 for lieutenant
governor, $45,000 for other statewide offices, $4,000 for state senate, and $3,000 for
state representative, all of which were adjusted for inflation in odd-numbered
years.206
In support of such statutory expenditure limits, the State of Vermont proffered
that they were justified by the state interest in reducing the amount of time that
candidates spend raising money. That is, according to a brief filed by Vermont
Attorney General Sorrell, absent expenditure limits, increased campaign costs —
coupled with the fear of running against an opponent having more funds — means
that candidates need to spend more time fundraising instead of engaging in public
debate and meeting with voters. Supporters of the law further argued that, in
Buckley, the Court did not consider this time-saving rationale and had it done so, it
would have upheld FECA’s expenditure limitations back in 1976.207
While unable to reach consensus on a single opinion, six justices of the Supreme
Court agreed that First Amendment free speech guarantees were violated by the
Vermont expenditure limits. Announcing the Court’s judgment and delivering an
opinion, which was joined by Chief Justice Roberts and Justice Alito, Justice Breyer
found that there was not a significant basis upon which to distinguish the expenditure
limits struck down in Buckley from the expenditure limits at issue in Randall.
According to Justice Breyer, it was “highly unlikely that fuller consideration of ...
[the] time protection rationale would have changed Buckley’s result.”208 In Buckley,
the Court recognized the link between expenditure limits and a reduction in the time
needed by a candidate for fundraising, but nonetheless struck down spending limits
as unconstitutional.209 Therefore, Justice Breyer’s opinion concluded, given
Buckley’s continued authority, the Court must likewise strike down Vermont’s
expenditure limits as violating the First Amendment.210
204 See id. at 498.
205 548 U.S. 230 (2006).
206 See id. at 237-38.
207 See id. at 245.
208 Id.
209 See id. The Breyer opinion notes that in Buckley, the Court observed that “Congress was
trying to ‘free candidates from the rigors of fundraising.’” Id. (citing Buckley v. Valeo, 424
U.S. 1, 91 (1976)).
210 See id. at 246.

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CRS-29
Disclosure Requirements
This section analyzes Supreme Court opinions decided subsequent to Buckley
in which the Court evaluated the constitutionality of disclosure requirements. 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),211 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,212 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, the Court in Federal Election Commission v. Akins213 was
presented with the question of whether certain “political committees,” without the
primary purpose of electing candidates, must nonetheless disclose under 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)214
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.215 Colorado affords its citizens many
“law-making” opportunities by placing initiatives on election ballots for public
ratification.216 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.217 Colorado did
211 525 U.S. 182 (1999).
212 459 U.S. 87 (1982).
213 524 U.S. 11 (1998).
214 525 U.S. 182 (1999).
215 See id. at 201.
216 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.
217 See id. at 201-202.

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CRS-30
not dispute that the regulation burdened expressive activity,218 but asserted regulatory
interests in disseminating information concerning the distribution of capital tied to
initiative campaigns.219 Colorado asserted that the regulation promotes “informed
public decision-making,” and deters actual and perceived corruption.220
Unimpressed with Colorado’s interests, the ACLF Court upheld the lower
court’s decision,221 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.222 After noting
the state’s interest in regulation, the Court examined the fit between the proposed
statutory remedy and its requirements.223 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.224 The added “informational” benefit of
requiring payee disclosure was not supported by the record and would be de minimis
at best, held the Court.225 The Court further noted that, as Meyer v. Grant226
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.227 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.228
218 See id.
219 See id. at 202.
220 See id.
221 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)).
222 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).
223 See ACLF, 525 U.S. 202.
224 See id. at 203.
225 See id.
226 486 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.)
227 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.”)
228 See ACLF, 525 U.S. at 204.

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CRS-31
In Brown v. Socialist Workers ‘74 Campaign Committee,229 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
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.230 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.231 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.232 The Court extended
Buckley to protect recipients of campaign contributions.233 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.234 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 member’s political affiliation,
destruction of the membership’s property, harassment of the party’s candidate, and
the firing of gunshots at the party’s offices.235 Plaintiff also developed a factual
record of historic discrimination and hostility against the party and its membership.236
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.237 Therefore, the Court held that the disclosure
requirement was unconstitutional as applied to the plaintiffs’ political committees.238
In Federal Election Commission (FEC) v. Akins,239 the Supreme Court did not
issue a holding on whether “an organization that otherwise satisfies the [FECA’s]
229 479 U.S. 87 (1982).
230 See id. at 89.
231 See id. at 88.
232 See id. at 93 (citing Buckley, 424 U.S. at 74).
233 See id. at 97, 98.
234 See id. at 101-102.
235 See id. at 99.
236 See id.
237 See id. at 100.
238 See id. at 102.
239 524 U.S. 11 (1998).

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CRS-32
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.’”240 However, the Court reiterated that
“political committees,” for the purposes of FECA, refer to organizations under 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,241 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.242
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.243
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.244 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.”245
The Court recalled, for example, that the Federalist Papers were published under
fictitious names.246 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.247
Thus, the Court held that the statute was not narrowly tailored to serve its regulatory
interests and therefore, struck it down.
240 See id. at 14.
241 514 U.S. 334 (1995).
242 See id. at 336.
243 See id. at 357.
244 Id.
245 Id. at 347.
246 See id.
247 See id. at 348, 349.

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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
concerned mandatory disclosure of campaign expenditures.248 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.249 Moreover, the
Court found that independent expenditure disclosure above a certain threshold, which
the Court upheld in Buckley,250 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.”251
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.”252 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.”253 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.254
248 Id. at 353.
249 Id. at 354.
250 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.
251 Id.
252 Id. at 356.
253 Id. (quoting Buckley, 424 U.S. at 80.
254 See id.

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Political Party Soft Money and Electioneering
Communication Restrictions
McConnell v. FEC
In its most comprehensive campaign finance ruling since Buckley v. Valeo, the
Supreme Court in its 2003 decision, McConnell v. FEC,255 upheld against facial
constitutional challenges key portions of the Bipartisan Campaign Reform Act of
2002 (BCRA),256 also known as the McCain-Feingold or Shays-Meehan campaign
finance reform law. In McConnell, a 5-to-4 majority of the Court upheld restrictions
on the raising and spending of previously unregulated political party soft money and
a prohibition on corporations and labor unions using treasury funds to finance
“electioneering communications,” requiring that such ads may only be paid for with
corporate and labor union political action committee (PAC) funds. The Court
invalidated BCRA’s requirement that parties choose between making independent
expenditures or coordinated expenditures on behalf of a candidate and its prohibition
on minors age 17 and under making campaign contributions.
By a 5-to-4 vote, the McConnell Court upheld two critical BCRA provisions,
Titles I and II, against facial constitutional challenges. In the majority opinion,
coauthored by Justices Stevens and O’Connor and joined by Justices Souter,
Ginsburg, and Breyer, the Court upheld the limits on raising and spending previously
unregulated political party soft money (Title I), and the prohibition on corporations
and labor unions using treasury funds — which is unregulated soft money — to
finance directly electioneering communications (Title II).
In upholding BCRA’s “two principal, complementary features,” the Court
readily acknowledged that it is under “no illusion that BCRA will be the last
congressional statement on the matter” of money in politics. The Court observed,
“money, like water, will always find an outlet.” Hence, campaign finance issues that
will inevitably arise and the corresponding legislative responses from Congress “are
concerns for another day.”257
Restricting Political Party Soft Money. Title I of BCRA prohibits
national party committees and their agents from soliciting, receiving, directing, or
spending any soft money.258 As the Court noted, Title I takes the national parties “out
255 540 U.S. 93 (2003). For further discussion of this decision, see CRS Report RL32245,
Campaign Finance Law: A Legal Analysis of the Supreme Court Ruling in McConnell v.
FEC, by L. Paige Whitaker.
256 P.L. 107-155. The Bipartisan Campaign Reform Act of 2002 (BCRA) was the first major
overhaul of federal campaign finance laws since the enactment of the Federal Election
Campaign Act of 1971.
257 Id. at 706.
258 2 U.S.C. § 441i(a).

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of the soft-money business.”259 In addition, Title I prohibits state and local party
committees from using soft money for activities that affect federal elections;
prohibits parties from soliciting for and donating funds to tax-exempt organizations
that spend money in connection with federal elections; prohibits federal candidates
and officeholders from receiving, spending, or soliciting soft money in connection
with federal elections and restricts their ability to do so in connection with state and
local elections; and prevents circumvention of the restrictions on national, state, and
local party committees by prohibiting state and local candidates from raising and
spending soft money to fund advertisements and other public communications that
promote or attack federal candidates.260 Plaintiffs challenged Title I based on the
First Amendment as well as Art. I, § 4 of the U.S. Constitution, principles of
federalism, and the equal protection component of the Due Process Clause of the 14th
Amendment. The Court upheld the constitutionality of all provisions in Title I,
finding that its provisions satisfy the First Amendment test applicable to limits on
campaign contributions: they are “closely drawn” to effect the “sufficiently important
interest” of preventing corruption and the appearance of corruption.
Rejecting plaintiff’s contention that the BCRA restrictions on campaign
contributions must be subject to strict scrutiny in evaluating the constitutionality of
Title I, the Court applied the less rigorous standard of review — “closely drawn”
scrutiny. Citing its landmark 1976 decision Buckley v. Valeo and its progeny, the
Court noted that it has long subjected restrictions on campaign expenditures to closer
scrutiny than limits on contributions in view of the comparatively “marginal
restriction upon the contributor’s ability to engage in free communication” that
contribution limits entail.261 The Court observed that its treatment of contribution
limits is also warranted by the important interests that underlie such restrictions, i.e.
preventing both actual corruption threatened by large dollar contributions as well as
the erosion of public confidence in the electoral process resulting from the
appearance of corruption.262 The Court determined that the lesser standard shows
“proper deference to Congress’ ability to weigh competing constitutional interests in
an area in which it enjoys particular expertise.”263 Finally, the Court recognized that
during its lengthy consideration of BCRA, Congress properly relied on its authority
to regulate in this area, and hence, considerations of stare decisis as well as respect
for the legislative branch of government provided additional “powerful reasons” for
adhering to the treatment of contribution limits that the Court has consistently
followed since 1976.264
259 McConnell, 124 S. Ct. at 654.
260 2 U.S.C. §§ 441i(b), 441i(d), 441i(e), 441i(f).
261 McConnell, 124 S. Ct. at 647 (quoting FEC v. Beaumont, 123 S. Ct. 2200 (2003)).
262 Id. at 656 (quoting FEC v. National Right to Work, 459 U.S. 197, 208 (1982)).
263 Id. at 656-57. The Court further noted that “closely drawn” scrutiny provides Congress
with sufficient room to anticipate and respond to circumvention of the federal election
regulatory regime, which is designed to protect the integrity of the political process. Id.
264 Id.

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Responding to plaintiffs’ argument that many of the provisions in Title I restrict
not only contributions but also the spending and solicitation of funds that were raised
outside of FECA’s contribution limits, the Court determined that it is “irrelevant”
that Congress chose to regulate contributions “on the demand rather than the supply
side.” Indeed, the relevant inquiry is whether its mechanism to implement a
contribution limit or to prevent circumvention of that limit burdens speech in a way
that a direct restriction on a contribution would not. The Court concluded that Title
I only burdens speech to the extent of a contribution limit: it merely limits the source
and individual amount of donations. Simply because Title I accomplishes its goals
by prohibiting the spending of soft money does not render it tantamount to an
expenditure limitation.265
In his dissent, Justice Kennedy criticized the majority opinion for ignoring
established constitutional bounds and upholding a campaign finance statute that does
not regulate actual or apparent quid pro quo arrangements.266 According to Justice
Kennedy, Buckley clearly established that campaign finance regulation that restricts
speech, without requiring proof of specific corrupt activity, can only withstand
constitutional challenge if it regulates conduct that presents a “demonstrable quid pro
quo danger.” The McConnell Court, however, interpreted the anti-corruption
rationale to allow regulation of not only “actual or apparent quid pro quo
arrangements,” but also of “any conduct that wins goodwill from or influences a
Member of Congress.” Justice Kennedy further maintained that the standard
established in Buckley defined undue influence to include the existence of a quid pro
quo involving an officeholder, while the McConnell Court, in contrast, extended the
Buckley standard of undue influence to encompass mere access to an officeholder.
Justice Kennedy maintained that the Court, by legally equating mere access to
officeholders to actual or apparent corruption of officeholders, “sweeps away all
protections for speech that lie in its path.”267
Unpersuaded by Justice Kennedy’s dissenting position that Congress’s
regulatory interest is limited to the prevention of actual or apparent quid pro quo
corruption “inherent in” contributions made to a candidate, the Court found that such
a “crabbed view of corruption” and specifically the appearance of corruption
“ignores precedent, common sense, and the realities of political fundraising exposed
by the record in this litigation.”268 According to the Court, equally problematic as
classic quid pro quo corruption, is the danger that officeholders running for re-
election will make legislative decisions in accordance with the wishes of large
financial contributors, instead of deciding issues based on the merits or constituent
interests. Since such corruption is neither easily detected nor practical to criminalize,
265 Id. at 657-58.
266 Id. at 742-59 (Kennedy, J., concurring, in part, dissenting, in part) (joined by Chief
Justice Rehnquist, Justices Scalia (except to the extent it upholds FECA § 323(e) and BCRA
§ 202) and Thomas (only with respect to BCRA § 213).
267 Id. at 746.
268 Id. at 665.

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the Court reasoned, Title I offers the best means of prevention, i.e., identifying and
eliminating the temptation.269
Prohibiting Corporate and Labor Union Treasury Fund Financing
of Electioneering Communications. Title II of BCRA created a new term in
FECA, “electioneering communication,” which is defined as any broadcast, cable,
or satellite communication that “refers” to a clearly identified federal candidate, is
made within 60 days of a general election or 30 days of a primary, and if it is a House
or Senate election, is targeted to the relevant electorate.270 Title II prohibits
corporations and labor unions from using their general treasury funds (and any
persons using funds donated by a corporation or labor union) to finance
electioneering communications. Instead, the statute requires that such ads may only
be paid for with corporate and labor union political action committee (PAC)
regulated hard money.271 The Court upheld the constitutionality of this provision.
In Buckley v. Valeo, the Court construed FECA’s disclosure and reporting
requirements, as well as its expenditure limitations, to apply only to funds used for
communications that contain express advocacy of the election or defeat of a clearly
identified candidate.272 After Buckley, many lower courts had interpreted the decision
to stand for the proposition that communications must contain express terms of
advocacy, such as “vote for” or “vote against,” in order for regulation of such
communications to pass constitutional muster under the First Amendment. Absent
express advocacy, lower courts had held, a communication is considered issue
advocacy, which is protected by the First Amendment and therefore may not be
regulated.
Effectively overturning such lower court rulings, the Supreme Court in
McConnell held that neither the First Amendment nor Buckley prohibits BCRA’s
regulation of “electioneering communications,” even though electioneering
communications, by definition, do not necessarily contain express advocacy. The
Court determined that when the Buckley Court distinguished between express and
issue advocacy it did so as a matter of statutory interpretation, not constitutional
command. Moreover, the Court announced that by narrowly reading FECA
provisions in Buckley to avoid problems of vagueness and overbreadth, it “did not
suggest that a statute that was neither vague nor overbroad would be required to toe
the same express advocacy line.”273 “[T]he presence or absence of magic words
269 Id. at 666.
270 2 U.S.C. § 434(f)(3)(A)(i). BCRA defines “[t]argeted to the relevant electorate” as a
communication that can be received by 50,000 or more persons in a state or congressional
district where the Senate or House election, respectively, is occurring. 2 U.S.C. §
434(f)(3)(C).
271 2 U.S.C. § 441b(b).
272 Buckley, 424 U.S. at 80.
273 McConnell, 124 S. Ct. at 688.

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cannot meaningfully distinguish electioneering speech from a true issue ad,” the
Court observed.274
In response to plaintiffs maintaining that the justifications supporting the
regulation of express advocacy do not apply to communications covered by the
definition of “electioneering communication,” the Court found that the argument
failed to the extent that issue ads broadcast during the 30- and 60-day periods prior
to primary and general elections are the “functional equivalent” of express
advocacy.275 The Court reasoned that the justifications for the regulation of express
advocacy “apply equally” to ads broadcast during those periods if the ads have the
intent and effect of influencing elections. Based on the evidentiary record, the Court
determined that the vast majority of such ads “clearly had such a purpose.”276
While Title II prohibits corporations and labor unions from using their general
treasury funds for electioneering communications, the Court observed that they are
still free to use separate segregated funds (PACs) to run such ads. Therefore, the
Court concluded that it is erroneous to view this provision of BCRA as a “complete
ban” on expression rather than simply a regulation.277 Further, the Court found that
the regulation is not overbroad because the “vast majority” of ads that are broadcast
within the electioneering communication time period (60 days before a general
election and 30 days before a primary) have an electioneering purpose.278 The Court
also rejected plaintiffs’ assertion that the segregated fund requirement for
electioneering communications is under-inclusive because it only applies to broadcast
advertisements and not print or internet communications. Congress is permitted, the
Court determined, to take one step at a time to address the problems it identifies as
acute. With Title II of BCRA, the Court observed, Congress chose to address the
problem of corporations and unions using soft money to finance a “virtual torrent of
televised election-related ads” in recent campaigns.279
In his dissent, Justice Kennedy criticized the majority for permitting “a new and
serious intrusion on speech” by upholding the prohibition on corporations and unions
using general treasury funds to finance electioneering communications. Finding that
this BCRA provision “silences political speech central to the civic discourse that
sustains and informs our democratic processes,” the dissent further noted that unions
and corporations “now face severe criminal penalties for broadcasting advocacy
messages that ‘refer to a clearly identified candidate’ in an election season.”280
274 Id. at 689.
275 Id. at 696.
276 Id. (citing 251 F. Supp. 2d 176, 573-578 (D.D.C.) (Kollar-Kotelly, J.), 826-827 (Leon,
J.)).
277 Id. at 695.
278 Id. at 696.
279 Id. at 697.
280 Id. at 762 (Kennedy, J., concurring, in part, dissenting, in part) (joined by Chief Justice
Rehnquist and Justices Scalia (except to the extent it upholds FECA § 323(e) and BCRA §
(continued...)

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In upholding BCRA’s extension of the prohibition on using treasury funds for
financing electioneering communications to non-profit corporations, the McConnell
Court found that even though the statute does not expressly exempt organizations
meeting the criteria established in its 1986 decision in FEC v. Massachusetts Citizens
for Life (MCFL),281 it is an insufficient reason to invalidate the entire section. Since
MCFL had been established Supreme Court precedent for many years prior to
enactment of BCRA, the Court assumed that when Congress drafted this section of
BCRA, it was well aware that this provision could not validly apply to MCFL-type
entities.282
Requiring Sponsors of Election-Related Advertisements to Self-
Identify (“Stand-By-Your-Ad Provision”). By an 8-to-1 vote, the Court upheld
Section 311 of BCRA, which requires that general public political ads that are
“authorized” by a candidate clearly indicate that the candidate or the candidate’s
committee approved the communication.283 Rejecting plaintiffs’ assertion that this
provision is unconstitutional, the Court found that this provision “bears a sufficient
relationship to the important governmental interest of ‘shedding the light of publicity’
on campaign financing.”284
Requiring Political Parties to Choose Between Coordinated and
Independent Expenditures After Nominating a Candidate. By a 5-to-4
vote, the Court invalidated BCRA’s requirement that political parties choose between
coordinated and independent expenditures after nominating a candidate,285 finding
that it burdens the right of parties to make unlimited independent expenditures.286
Specifically, Section 213 of BCRA287 provides that, after a party nominates a
candidate for federal office, it must choose between two spending options. Under the
first option, a party that makes any independent expenditure is prohibited from
making any coordinated expenditure under this section of law; under the second
option, a party that makes any coordinated expenditure under this section of law —
280 (...continued)
202) and Thomas (only with respect to BCRA § 213)). While Justice Kennedy’s opinion
served as the primary dissent for the minority, in a separate dissent, Justice Scalia wrote,
“[t]his is a sad day for the freedom of speech,” further commenting that “[i]f the Bill of
Rights had intended an exception to the freedom of speech in order to combat this malign
proclivity of the officeholder to agree with those who agree with him, and to speak more
with his supporters than his opponents, it would surely have said so.” Id. at 720, 726.
281 479 U.S. 238 (1986) (holding that the following characteristics exempt a corporation
from 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 neither
founded by nor accepts contributions from business organizations or labor unions).
282 McConnell, 124 S. Ct. at 699.
283 2 U.S.C. § 441d.
284 McConnell, 124 S. Ct. at 710.
285 2 U.S.C. § 315(d)(4).
286 McConnell, 124 S. Ct. at 703.
287 2 U.S.C. § 315(d)(4).

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one that exceeds the ordinary $5,000 limit — cannot make any independent
expenditure with respect to the candidate. FECA, as amended by BCRA, defines
“independent expenditure” to mean an expenditure by a person “expressly advocating
the election or defeat of a clearly identified candidate” and that is not made in
cooperation with such candidate.288
According to the McConnell Court, the regulation presented by Section 213 of
BCRA “is much more limited than it initially appears.” A party that wants to spend
more than $5,000 in coordination with its nominee is limited to making only
independent expenditures that contain the magic words of express advocacy.
Although the Court acknowledges that “while the category of burdened speech is
relatively small,” it is nonetheless entitled to protection under the First Amendment.
Furthermore, the Court determined that under Section 213, a party’s exercise of its
constitutionally protected right to engage in free speech results in the loss of a
longstanding valuable statutory benefit. Hence, to pass muster under the First
Amendment, the provision “must be supported by a meaningful governmental
interest” and, the Court announced, the interest in requiring parties to avoid the use
of magic words does not suffice.289
Prohibiting Campaign Contributions by Minors Age 17 and Under.
By a unanimous vote, the Court invalidated Section 318 of BCRA, which prohibited
individuals age 17 or younger from making contributions to candidates and political
parties.290 Determining that minors enjoy First Amendment protection and that
contribution limits impinge on such rights, the Court determined that the prohibition
is not “closely drawn” to serve a “sufficiently important interest.”291
In response to the government’s assertion that the prohibition protects against
corruption by conduit — that is, parents donating through their minor children to
circumvent contribution limits — the Court found “scant evidence” to support the
existence of this type of evasion. Furthermore, the Court postulated that such
circumvention of contribution limits may be deterred by the FECA provision
prohibiting contributions in the name of another person and the knowing acceptance
of contributions made in the name of another person.292 Even assuming, arguendo,
that a sufficiently important interest could be provided in support of the prohibition,
the Court determined that it is over-inclusive. According to the Court, various states
have found more-tailored approaches to address this issue, for example, counting
contributions by minors toward the total permitted for a parent or family unit,
imposing a lower cap on contributions by minors, and prohibiting contributions by
288 2 U.S.C. § 301(17).
289 McConnell, 124 S. Ct. at 702.
290 2 U.S.C. § 441k.
291 McConnell, 124 S. Ct. at 711.
292 See 2 U.S.C. § 441f.

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very young children. The Court, however, expressly declined to decide whether any
alternatives would pass muster.293
Establishing Staggered Increases in Contribution Limits if
Opponent Spends Certain Amount in Personal Funds (“Millionaire
Provisions”): Challengers Held to Lack Standing. By a unanimous vote,
the Court determined that the challenges to Sections 304, 316, and 319 of BCRA,
also known as the “millionaire provisions,” were properly dismissed by the district
court due to lack of standing.294 The millionaire provisions, which therefore remain
in effect, provide for a series of staggered increases in otherwise applicable limits on
contributions to candidates if a candidate’s opponent spends a certain amount in
personal funds on his or her own campaign.295
Supreme Court Deference to Congressional Findings. A notable
aspect of the Supreme Court’s ruling in McConnell v. FEC is the extent to which the
majority of the Court deferred to Congressional findings and used a pragmatic
rationale in upholding BCRA. According to the Court, the record before it was
replete with perceived problems in the campaign finance system, circumstances
creating the appearance of corruption, and Congress’s proposal to address these
issues. As the Court remarked at one point, its decision showed “proper deference”
to Congress’s determinations “in an area in which it enjoys particular expertise.”296
Furthermore, “Congress is fully entitled,” the Court observed, “to consider the real-
world” as it determines how best to regulate in the political sphere.297
Wisconsin Right to Life, Inc. v. FEC (WRTL II)
Ruling 5 to 4, the Supreme Court in its 2007 decision Wisconsin Right to Life,
Inc. v. FEC (WRTL II)298 found that a provision of the Bipartisan Campaign Reform
Act of 2002 (BCRA), prohibiting corporate or labor union treasury funds from being
spent on advertisements broadcast within 30 days of a primary or 60 days of a general
election, was unconstitutional as applied to ads that Wisconsin Right to Life, Inc.
sought to run. While not expressly overruling its 2003 ruling in McConnell v. FEC,
which upheld the BCRA provision against a First Amendment facial challenge, the
Court limited the law’s application. Specifically, it ruled that advertisements that
may reasonably be interpreted as something other than as an appeal to vote for or
against a specific candidate are not the functional equivalent of express advocacy,
and therefore, cannot be regulated.
293 McConnell, 124 S. Ct. at 711.
294 Id.
295 2 U.S.C. § 315(a).
296 McConnell, 124 S. Ct. at 656-57.
297 Id. at 686.
298 127 S.Ct. 2652 (2007). For further discussion of this decision, see CRS Report RS22687,
The Constitutionality of Regulating Political Advertisements: An Analysis of Federal
Election Commission v. Wisconsin Right to Life, Inc., by L. Paige Whitaker.

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Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)299
prohibits corporate or labor union treasury funds from being spent for “electioneering
communications.” BCRA defines “electioneering communication” as any broadcast,
cable, or satellite transmission made within 30 days of a primary or 60 days of a
general election (sometimes referred to as the “blackout periods”) that refers to a
candidate for federal office and is targeted to the relevant electorate.300 In McConnell
v. Federal Election Commission (FEC),301 the Supreme Court had upheld Section 203
of BCRA against a First Amendment facial challenge even though the provision
regulates not only campaign speech or “express advocacy,” (speech that expressly
advocates the election or defeat of a clearly identified candidate), but also “issue
advocacy,” (speech that discusses public policy issues, while also mentioning a
candidate). Specifically, the Court determined that the speech regulated by Section
203 was the “functional equivalent” of express advocacy.302
In July 2004, Wisconsin Right to Life (WRTL), a corporation that accepts
contributions from other corporations, began broadcasting advertisements exhorting
viewers to contact Senators Feingold and Kohl to urge them to oppose a Senate
filibuster to delay and block consideration of federal judicial nominations. WRTL
planned to run the ads throughout August 2004 and to finance them with its general
treasury funds, thereby running afoul of Section 203, as such ads would have been
broadcast within the 30 day period prior to the September 14, 2004, primary.
Anticipating that the ads would be illegal “electioneering communications,” but
believing that they nevertheless had a First Amendment right to broadcast them,
WRTL filed suit against the FEC, seeking declaratory and injunctive relief and
alleging that Section 203’s prohibition was unconstitutional as applied to the ads and
any future ads that they might plan to run.
Just prior to the BCRA 30-day blackout period, a three-judge district court
denied a preliminary injunction, finding that McConnell v. FEC left no room for such
an “as-applied” challenge. Accordingly, WRTL did not broadcast its ads during the
blackout period, and the district court subsequently dismissed the complaint in an
unpublished opinion. On appeal, in Wisconsin Right to Life, Inc. v. FEC (WRTL I),303
the Supreme Court vacated the lower court judgment, finding that by upholding
Section 203 against a facial challenge in McConnell, “we did not purport to resolve
future as-applied challenges.”304 On remand, after permitting four Members of
Congress to intervene as defendants, the three-judge district court granted WRTL
summary judgment, determining that Section 203 was unconstitutional as applied to
299 P.L. 107-155. This law is also known as “McCain-Feingold,” referring to the principal
Senate sponsors of the legislation.
300 See 2 U.S.C. § 441b(b)(2).
301 540 U.S. 93 (2003), discussed supra.
302 Id. at 204-205, 206.
303 546 U.S. 410 (2006).
304 Id. at 412.

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WRTL’s ads.305 It concluded that the ads were genuine issue ads, not express
advocacy or its “functional equivalent” under McConnell, and held that no
compelling interest justified their regulation.306 The FEC appealed.
Prohibiting Corporate and Labor Union Treasury Fund Financing
of Electioneering Communications. Affirming the lower court ruling, the
Supreme Court in Wisconsin Right to Life, Inc. v. FEC (WRTL II)307 determined that
Section 203 of BCRA was unconstitutional as applied to the WRTL ads, and that
they should have been permissible to broadcast. In a plurality opinion, written by
Chief Justice Roberts, joined by Justice Alito — Justice Scalia wrote a separate
concurrence, joined by Justices Kennedy and Thomas308 — the Court announced that
“[b]ecause WRTL’s ads may reasonably be interpreted as something other than as an
appeal to vote for or against a specific candidate, we hold they are not the functional
equivalent of express advocacy, and therefore, fall outside the scope of McConnell’s
holding.”309 In determining the threshold question, as the Court found was required
by McConnell, of whether the ads were the “functional equivalent” of speech
expressly advocating the election or defeat of a candidate for federal office or
genuine issue advocacy, the Court observed that it had long recognized that the
practical distinction between campaign advocacy and issue advocacy can often
dissolve because candidates, particularly incumbents, “are intimately tied to public
issues involving legislative proposals and governmental actions.”310 Nonetheless, the
Court stated, its jurisprudence in this area requires it to make such a distinction, and
“[i]n drawing that line, the First Amendment requires ... err[ing] on the side of
protecting political speech rather than suppressing it.”311
The FEC argued that in view of the fact that McConnell had already held that
Section 203 was facially valid, WRTL — and not the government — should bear the
burden of demonstrating that BCRA is unconstitutional as applied to its ads.312
Rejecting the FEC’s contention, the Court pointed out that Section 203 burdens
political speech and is therefore subject to strict scrutiny.313 Under strict scrutiny, the
305 Wisconsin Right to Life, Inc. v. Federal Election Commission, 466 F. Supp. 2d 195
(D.D.C. 2006).
306 Id. at 210.
307 127 S.Ct. 2652 (2007).
308 In a concurrence, Justice Scalia found that the attempt in the Court’s ruling to distinguish
McConnell is “unpersuasive enough, and the change in the law it works is substantial
enough, that seven Justices ... having widely divergent views concerning the
constitutionality of the restrictions at issue, agree that the opinion effectively overrules
McConnell without saying so.” Id. at 2684, n. 7 (Scalia, J. concurring in part and concurring
in the judgment).
309 Id. at 2670.
310 Id. at 2659 (quoting Buckley v. Valeo, 424 U.S. 1, 42 (1976)).
311 Id.
312 See id. at 2663-64.
313 See id. at 2664 (citing McConnell v. FEC, 540 U.S. 93, 205 (2003); Austin v. Michigan
(continued...)

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Court determined that the FEC — not the regulated community — had the burden of
proving that the application of Section 203 to WRTL’s ads furthered a compelling
interest, and was narrowly tailored to achieve that interest.314 As it had already ruled
in McConnell that Section 203 “survives strict scrutiny to the extent it regulates
express advocacy or its functional equivalent,” the Court found that in order to
prevail, the FEC needed to show that the WRTL ads it sought to regulate fell within
that category.315 On the other hand, if the speech that the FEC sought to regulate is
not express advocacy or its functional equivalent, the Court cautioned that the FEC’s
task is “more formidable” because it must demonstrate that banning such ads during
the blackout periods is narrowly tailored to serve a compelling governmental interest,
a conclusion that no precedent has reached.316
In response to the FEC’s and the dissent’s317 argument that McConnell had
established a test for determining whether an ad is the functional equivalent of
express advocacy, that is, “whether the ad is intended to influence elections or has
that effect,” the Court disagreed, finding that it had not adopted any type of test as the
standard for future as-applied challenges.318 Instead, the Court found that its analysis
in McConnell was grounded in the evidentiary record, particularly studies showing
that the BCRA definition of “Electioneering Communications accurately captures ads
having the purpose or effect of supporting candidates for election to office.”319
Hence, when the McConnell Court made its assessment that the plaintiffs in that case
had not sufficiently proven that Section 203 was overbroad and could not be enforced
in any circumstance, it did not adopt a particular test for determining what constituted
the “functional equivalent” of express advocacy. Indeed, the Court held, the fact that
in McConnell it looked to such intent and effect “neither compels nor warrants
313 (...continued)
Chamber of Commerce, 494 U.S. 652, 658 (1990); FEC v. Massachusetts Citizens for Life,
Inc., 479 U.S. 238, 252 (1986); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786
(1978); Buckley v. Valeo, 424 U.S. 1, 44-45 (1976)).
314 Id. (finding “[e]specially where, as here, a prohibition is directed at speech itself, and the
speech is intimately related to the process of governing ... ‘the burden is on the government
to show the existence of [a compelling] interest.’”(quoting First Nat. Bank of Boston v.
Bellotti, 435 U.S. at 786)).
315 Id. (quoting McConnell v. FEC, 540 U.S. at 206).
316 Id.
317 The dissenting opinion maintained that the principal opinion establishes a “new test to
identify a severely limited class of ads that may constitutionally be regulated as
electioneering communications, a test that is flatly contrary to ... [and] simply inverts” the
Court’s holding in McConnell. Id. at 2669 (Souter, J., dissenting) (quoting McConnell v.
FEC, 540 U.S. at 206-207, n. 88). While the Court in McConnell had “left open the
possibility” of a “‘genuine’ or ‘pure’ issue ad that might not be open to regulation under
§203,” the dissent argued that the Court meant that an issue ad that did not contain campaign
advocacy could escape the regulation, not that “if an ad is susceptible to any ‘reasonable
interpretation other than as an appeal to vote for or against a specific candidate,’ then it must
be a ‘pure’ or ‘genuine’ issue ad.” Id. (Souter, J., dissenting)
318 Id. at 2664.
319 Id. at 2665.

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accepting that same standard as the constitutional test for separating, in an as-applied
challenge, political speech protected under the First Amendment from that which
may be banned.”320
Accordingly, the Court turned to establishing the proper standard for an as-
applied challenge to Section 203 of BCRA, finding that such a standard “must be
objective, focusing on the substance of the communication rather than amorphous
considerations of intent and effect,” involving “minimal if any discovery” so that
parties can resolve disputes “quickly without chilling speech through the threat of
burdensome litigation,” and eschewing “‘the open-ended rough-and-tumble of
factors,’ which ‘invit[es] complex argument in a trial court and a virtually inevitable
appeal.’”321 In summation, the Court announced that the standard “must give the
benefit of any doubt to protecting rather than stifling speech.”322 Taking such
considerations into account, the Court held that
[A] Court should find that an ad is the functional equivalent of express advocacy
only if the ad is susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate. Under this test, WRTL’s three
ads are plainly not the functional equivalent of express advocacy. First, their
content is consistent with that of a genuine issue ad: The ads focus on a
legislative issue, take a position on the issue, exhort the public to adopt that
position, and urge the public to contact public officials with respect to the matter.
Second, their content lacks indicia of express advocacy: The ads do not mention
an election, candidacy, political party, or challenger; and they do not take a
position on a candidate’s character, qualifications, or fitness for office.323
Moreover, the Court cautioned, contextual factors “should seldom play a significant
role in the inquiry.” Although courts are not required to ignore basic background
information that provides relevant contextual information about an advertisement —
such as whether the ad describes a legislative issue that is under legislative
consideration — the Court found that such background information “should not
become an excuse for discovery.”324
In applying the standard it developed for as-applied challenges to the ads that
WRTL sought to broadcast, the Court determined that the FEC had failed to
demonstrate that such ads constituted the functional equivalent of express advocacy
because they could reasonably be interpreted as something other than a vote for or
against a candidate. The Court’s established jurisprudence has recognized the
320 Id. The Court further noted that in its seminal 1976 campaign finance decision, Buckley,
it had expressly “rejected an intent-and-effect test for distinguishing between discussions
of issues and candidates,” finding that such an analysis would afford “‘no security for free
discussion.’” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 43-44 (1976), quoting Thomas v.
Collins, 323 U.S. 516 (1945)).
321 Id. at 2666 (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 547 (1995)).
322 Id. at 2667 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
323 Id.
324 Id. at 2669.

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governmental interest in preventing corruption and the appearance of corruption in
elections, which has been invoked in order to justify contribution limits and, in
certain circumstances, spending limits on electioneering expenditures that pose the
risk of quid pro quo corruption. In McConnell, the Court noted, it had applied this
interest in justifying the regulation of express advocacy and its functional equivalent,
but in order to justify regulating WRTL’s ads, “this interest must be stretched yet
another step to ads that are not the functional equivalent of express advocacy.”325 In
strongly worded opposition to extending the application of this governmental
interested yet again, the Court announced, “Enough is enough.” The WRTL ads are
not equivalent to contributions — they are political speech — and the governmental
interest in avoiding quid pro quo corruption cannot be used to justify their
regulation.326 The Court also announced that the discussion of issues cannot be
suppressed simply because the issues may also be relevant to an election: “Where
the First Amendment is implicated, the tie goes to the speaker, not the censor.”327
While the ultimate impact and aftermath of the Supreme Court’s decision in
WRTL II remains to be seen, application of the federal law prohibiting corporate and
labor union treasury funds from being spent on ads that are broadcast 30 days before
a primary and 60 days before a general election has been limited. As a result of this
ruling, only ads that are susceptible of no reasonable interpretation other than an
exhortation to vote for or against a candidate can be regulated. While the Court’s
ruling was careful not to overrule explicitly its earlier upholding of this portion of the
Bipartisan Campaign Reform Act (BCRA) in its 2003 decision, McConnell v. FEC,
WRTL II seems to indicate that the FEC’s ability to regulate the electioneering
communication ban has nonetheless been circumscribed.
Conclusion
In the landmark 1976 decision, Buckley v. Valeo, the Supreme Court established
the constitutional framework for campaign finance regulation and in numerous
subsequent decisions, extended its holding. Although it has provided much guidance
with regard to the constitutionality of various aspects of campaign finance regulation,
the Court’s jurisprudence in this area continues to evolve and many questions remain
unanswered. While awaiting further guidance from the Court, those proposing or
evaluating campaign finance legislation rely on Buckley and its progeny for
constitutional direction.
325 Id. at 2672 (emphasis included).
326 Id. at 2673.
327 Id. at 2669.

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