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Campaign Finance: Constitutionality of Limits
on Contributions and Expenditures
L. Paige Whitaker
Legislative Attorney
September 4, 2014
Congressional Research Service
7-5700
www.crs.gov
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Summary
The First Amendment to the U.S. Constitution provides that “Congress shall make no law ...
abridging the freedom of speech, or of the press.” This provision limits the government’s power
to restrict speech. In 1976, the Supreme Court issued its landmark campaign finance ruling in
Buckley v. Valeo. In Buckley, the Court determined that limits on campaign contributions, which
involve giving money to an entity, and expenditures, which involve spending money directly for
electoral advocacy, implicate rights of political expression and association under the First
Amendment. In view of the fact that contributions and expenditures facilitate speech, the Court
concluded, they cannot be regulated as mere conduct.
The Court in Buckley, however, afforded different degrees of First Amendment protection to
contributions and expenditures. Contribution limits are subject to more lenient review because
they impose only a marginal restriction on speech, and will be upheld if the government can
demonstrate that they are a “closely drawn” means of achieving a “sufficiently important”
governmental interest. On the other hand, expenditure limits are subject to strict scrutiny because
they impose a substantial restraint on speech. That is, limits on expenditures must be narrowly
tailored to serve a compelling governmental interest. Therefore, in Buckley and its progeny, the
Court has generally upheld limits on contributions, finding that they serve the governmental
interest of protecting elections from corruption, while invalidating limits on independent
expenditures, finding that they do not pose a risk of corruption. Importantly, the Court’s recent
case law has announced that only quid pro quo corruption or its appearance constitute a
sufficiently important governmental interest to justify limits on contributions and expenditures.
Although the Supreme Court’s campaign finance jurisprudence has shifted over the years, the
basic Buckley framework has generally been applied when determining whether a campaign
finance limit violates the First Amendment.
This report discusses current Supreme Court and other case law evaluating the constitutionality of
limits on contributions and expenditures. For example, while the Court has generally upheld
reasonable limits on contributions, it has invalidated them when it found that they were too low,
prohibited minors age 17 or under from contributing, and after determining that aggregate
contribution limits serve as a complete ban once the aggregate amount has been reached. The
Court has also determined that a series of staggered increases in contribution limits for candidates
whose opponents significantly self-finance their campaigns are unconstitutional because of the
penalty it imposed on expenditures of personal funds. An appellate court has held that limits on
contributions to groups making only independent expenditures are unconstitutional, which
resulted in the creation of super PACs.
The Supreme Court has overturned limits on candidate expenditures, including limits on
candidates using personal wealth to finance campaigns. The Court has invalidated limits on
independent expenditures by political parties, emphasizing that independent spending does not
serve the governmental interest in stemming the reality or appearance of corruption. Further, the
Court has held that requiring parties to choose between coordinated and independent expenditures
after nominating a candidate is unconstitutional because it burdens the right of parties to make
unlimited independent expenditures. On the other hand, the Court has upheld limits on party
coordinated expenditures because they are functionally similar to contributions. The Court has
also invalidated a long-standing prohibition on corporations, and it appears labor unions, using
treasury funds for independent expenditures, finding that regardless of the speaker being a
corporation, such expenditures are protected speech.
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Contents
Introduction ...................................................................................................................................... 1
Contributions ................................................................................................................................... 2
Base Limits ................................................................................................................................ 2
Aggregate Limits ....................................................................................................................... 4
Candidates Whose Opponents Self-Finance .............................................................................. 6
Minors ....................................................................................................................................... 7
Super PACs ................................................................................................................................ 8
Expenditures .................................................................................................................................... 9
Candidates ................................................................................................................................. 9
Political Parties ........................................................................................................................ 10
Corporations and Labor Unions .............................................................................................. 10
Conclusion ..................................................................................................................................... 14
Contacts
Author Contact Information........................................................................................................... 15
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Introduction
The First Amendment to the U.S. Constitution provides that “Congress shall make no law ...
abridging the freedom of speech, or of the press.” This provision limits the government’s power
to restrict speech. In 1976, the Supreme Court issued its landmark campaign finance ruling in
Buckley v. Valeo.1 In Buckley, the Court found that limits on campaign contributions, which
involve giving money to an entity, and expenditures, which involve spending money directly for
electoral advocacy, implicate rights of political expression and association under the First
Amendment.2
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. Second, restricting political contributions and
expenditures impose a restriction on the amount of money that a candidate can spend on
communications, thereby reducing the number and depth of issues discussed and the size of the
audience reached.3 This is because almost all modes of communicating ideas in a mass society
require the spending of money. The Court further observed that the primary purpose of the First
Amendment is to increase the quantity of public expression of political ideas. From these general
principles, the Court concluded that contributions and expenditures facilitate an interchange of
ideas, and cannot be regulated as mere conduct unrelated to their underlying act of
communication.4
The Court in Buckley, however, afforded different degrees of First Amendment protection to
contributions and expenditures. Contribution limits are subject to more lenient review, the Court
found, because they impose only a marginal restriction on speech and will be upheld if the
government can demonstrate that they are a “closely drawn” means of achieving a “sufficiently
important” governmental interest. On the other hand, expenditure limits are subject to strict
scrutiny because they impose a substantial restraint on speech. That is, limits on expenditures
must be narrowly tailored to serve a compelling governmental interest. Therefore, in Buckley and
its progeny, the Court has generally upheld limits on contributions, finding that they serve the
governmental interest of protecting elections from corruption, while invalidating limits on
independent expenditures, finding that they do not pose a risk of corruption. Importantly, the
Court’s recent case law has announced that only quid pro quo corruption or its appearance
constitute a sufficiently important governmental interest to justify limits on contributions and
expenditures. Quid pro quo corruption involves an exchange of money or something of value for
an official act.
Although the Supreme Court’s campaign finance jurisprudence has shifted over the years, the
basic Buckley framework has generally been applied when determining whether a campaign
finance limit violates the First Amendment. This report discusses current Supreme Court and
other case law evaluating the constitutionality of limits on contributions and expenditures in
various contexts. First, it examines contribution limits, covering base limits, aggregate limits,
1 424 U.S. 1 (1976).
2 See id. at 23.
3 See id. at 19.
4 See id. at 15-17.
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limits on candidates whose opponents self-finance, minors, and super PACs. As noted above, the
Court has generally upheld limits on contributions, but the report examines exceptions to this
general rule. Then the report discusses expenditure limits, including limits on expenditures by
candidates, political parties, and corporations and labor unions. The Court has determined that
limits on expenditures are subject to strict scrutiny review, and accordingly, has found them to be
unconstitutional. 5
Contributions
Base Limits
The Supreme Court has generally upheld the constitutionality of reasonable limits on how much
money a donor may contribute to a candidate. These contribution limits are known as “base
limits.” In contrast, as discussed in the section below, “aggregate limits” restrict how much
money a donor may contribute in total to all candidates, parties, and political committees.
In Buckley v. Valeo,6 the Court upheld the constitutionality of a Federal Election Campaign Act
(FECA)7 limit on individuals making contributions to candidates. While finding that limits on
both contributions and expenditures implicate rights of political expression and association under
the First Amendment, the Court distinguished between the two. Unlike expenditure limits, which
reduce the amount of expression, contribution limits involve “little direct restraint” on the speech
of a contributor.8 The Court acknowledged that a contribution limit restricts an aspect of a
contributor’s freedom of association, that is, his or her ability to support a candidate. Nonetheless,
the Court found that they still permit symbolic expression of support, and do not infringe on a
contributor’s freedom to speak about candidates and issues.9 Reasonable contribution limits, the
Court noted, still permit people to engage in independent political expression, associate by
volunteering on campaigns, and assist candidates by making limited contributions.10
Therefore, the Court found, limits on contributions are permissible so long as they are “closely
drawn” to serve a “sufficiently important interest.”11 In Buckley, the Court found that the
government had demonstrated that preventing corruption or its appearance was sufficiently
5 For discussion of campaign finance policy issues, see CRS Report R41542, The State of Campaign Finance Policy:
Recent Developments and Issues for Congress, by R. Sam Garrett.
6 424 U.S. 1 (1976).
7 Codified at 52 U.S.C. §§ 30101 et seq., (formerly codified at 2 U.S.C. §§ 431 et seq.) In Buckley, the Supreme Court
evaluated the constitutionality of certain provisions of federal campaign finance law including, the Federal Election
Campaign Act (FECA) of 1971, as amended in 1974. In sum, the FECA provisions at issue included (1) a $1,000
contribution limit 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. Current FECA contribution limits are codified at 52 U.S.C. § 30116(a), (formerly
codified at 2 U.S.C. § 441a(a)), and are adjusted biannually for inflation. 52 U.S.C. § 30116(c), (formerly codified at 2
U.S.C. § 441a(c)).
8 Buckley, 424 U.S. at 21.
9 See id. at 21, 24.
10 See id. at 28-29.
11 Id. at 25.
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important to justify the FECA contribution limits.12 The Court recognized that contribution limits
serve as one of FECA’s primary means to combat improper influence on candidates by
contributors. Thus, the Court concluded that both the reality and appearance of corruption as a
result of large campaign contributions was a sufficiently 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.]”13 Regarding whether the contribution limit was closely
drawn, the Court found that it was relevant to examine the amount of the limit. Limits that are too
low could significantly impede a candidate or political committee from amassing the necessary
resources for effective communication.14 The Court concluded, however, that the FECA
contribution limit at issue in Buckley would not negatively impact campaign funding.
Since Buckley, the Court has similarly upheld the constitutionality of other contribution limits. In
Nixon v. Shrink Missouri Government PAC,15 the Court upheld a state law imposing contribution
limits on candidates running for state office. The Court observed that while contribution limits
must be narrowly tailored to a sufficiently important interest, the amount of the limitation “need
not be ‘fine tuned.’”16 Under Buckley, the Court noted, a key inquiry regarding whether a
contribution limit is too low is whether there is evidence demonstrating that the limit prevents a
candidate from amassing sufficient funds for effective advocacy.17
Applying that principle, the Supreme Court has determined that certain contribution limits are too
low and invalidated them under the First Amendment. In Randall v. Sorell,18 in a plurality
opinion, the Court invalidated a Vermont law that included a limit of $400 on individual, party,
and political committee contributions to certain state candidates, per two-year election cycle. The
law did not provide for inflation adjustment. While unable to reach consensus on a single opinion,
six justices agreed that the contribution limits violated First Amendment free speech guarantees.
The plurality opinion written by Justice Breyer, joined by two other justices, found that the
contribution limits in this case were substantially lower than limits it had previously upheld as
well as limits in effect in other states, and that they were not narrowly tailored. The opinion also
concluded that the limits substantially restricted candidates, particularly challengers, from being
able to raise the funds necessary to run a competitive campaign; impeded parties from getting
their candidates elected; and deterred individual citizens from volunteering on campaigns
(because the law counted certain volunteer expenses toward a volunteer’s individual contribution
limit).19
12 See id. at 25-26.
13 Id. at 27.
14 See id. at 21.
15 528 U.S. 377 (2000).
16 Id. at 387-88 (quoting Buckley, 424 U.S. at 30, n. 3).
17 See id. at 397.
18 548 U.S. 230 (2006).
19 See id. at 253, 259-60. The opinion agreed with the district court “that the Act’s contribution limits ‘would reduce the
voice of political parties’ in Vermont to a ‘whisper.’” Id. at 259 (quoting Landell v. Sorrell, 118 F. Supp. 2d 459, 487
(D. Vt. 2000)).
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Aggregate Limits
The Supreme Court has held that aggregate limits on contributions are unconstitutional under the
First Amendment. Aggregate limits restrict how much money a donor may contribute in total to
all candidates, parties, and political committees. Characterizing them as a ban on further
contributions once the aggregate amount has been reached, the Court has determined that they
violate the First Amendment by infringing on political expression and association rights, without
furthering the governmental interest of preventing quid pro quo corruption or its appearance.
In its most recent campaign finance ruling, McCutcheon v. Federal Election Commission,20 the
Supreme Court invalidated Section 307(b) of the Bipartisan Campaign Reform Act of 2002
(BCRA),21 which amended FECA, imposing biennial limits on aggregate contributions. These
limits were adjusted for inflation each election cycle. For example, during the 2011-2012 election
cycle, the law prohibited individuals from making contributions to candidates totaling more than
$46,200, and to parties and political action committees (PACs) (with the exception of “super
PACs”) totaling more than $70,800.22 The base limits on contributions established by the BCRA
were not at issue in this case and remain in effect.
As a threshold matter, the plurality opinion in McCutcheon determined that it was unnecessary to
revisit the contribution/expenditure distinction established in Buckley v. Valeo, and the differing
standards of review applicable to each.23 According to the opinion, regardless of whether strict
scrutiny or the “closely drawn” standard applies, the analysis “turns on the fit” between the
government’s stated objective and the means to achieve it.24 Applying that analysis to the
aggregate contribution limits, the opinion found a “substantial mismatch” between the two, and
concluded that even under the more lenient standard of review, the limits could not be upheld.25
Importantly, the opinion announced that throughout the Court’s campaign finance cases dating
back 40 years, it has identified only one legitimate governmental interest for restricting campaign
financing: the prevention of quid pro quo corruption or its appearance.26 Essentially, quid pro quo
corruption captures the notion of “a direct exchange of an official act for money.”27 While
acknowledging that the Court’s campaign finance jurisprudence has not always discussed the
concept of corruption clearly and consistently, and that the line between quid pro quo corruption
and general influence may sometimes seem vague, the opinion said that efforts to ameliorate
20 134 S. Ct. 1434 (2014). For further discussion, see CRS Report R43334, Campaign Contribution Limits: Selected
Questions About McCutcheon and Policy Issues for Congress, by R. Sam Garrett.
21 P.L. 107-155, § 307(b), codified at 52 U.S.C. § 30116(a)(3), (formerly codified at 2 U.S.C. § 441a(a)(3)). BCRA is
also known as “McCain-Feingold,” in reference to the principal Senate sponsors of the legislation.
22 Of that amount, no more than $46,200 could be contributed to state and local parties. In comparison, during the same
election cycle, individuals were subject to individual base limits of $2,500 per candidate, per election; $30,800 per year
to national parties; $10,000 per year to state, local and district party committees combined; and $5,000 per year to
PACs. Contributions to super PACs are not subject to limits, see infra at p. 8.
23 While concurring in the judgment, Justice Thomas wrote an opinion maintaining that Buckley v. Valeo, and its
differing treatment of contributions and expenditures, denigrates free speech, and therefore should be overruled. The
concurrence further observed that although the plurality opinion purports not to overrule Buckley, it nonetheless
“continues to chip away at its footings.” McCutcheon, 134 S. Ct. at 1464 (Thomas, J., concurring).
24 Id. at 1434.
25 Id.
26 See id. at 1441 (citing Citizens United v. Federal Election Commission, 558 U.S. 310, 359 (2010)).
27 Id.
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“influence over or access to” elected officials or political parties do not constitute a permissible
governmental interest.28 According to the opinion, the spending of large sums of money in
connection with elections, but absent an effort to control how an officeholder exercises his or her
official duties, does not give rise to quid pro quo corruption.29 Further, the opinion notes that the
Court has consistently rejected campaign finance regulation based on other governmental
objectives, such as goals to “level the playing field,” “level electoral opportunities,” or
“equaliz[e] the financial resources of candidates.”30 Although the Court did not expressly adopt a
stricter standard of review for contribution limits, its announcement that only quid pro quo
corruption or its appearance serve as a compelling governmental interest may impact the degree
to which contribution limits are upheld in future rulings.
In Buckley v. Valeo, the Court had upheld the constitutionality of a $25,000 federal aggregate
contribution limit, then in effect. While acknowledging that it imposed an ultimate restriction
upon the number of candidates and committees with which an individual can associate, the Court
in Buckley characterized it as a “quite modest restraint” that served to prevent evasion of base
limits.31 The plurality in McCutcheon distinguished the Buckley precedent and concluded that it
did not control. In Buckley, the plurality opinion observed, the Court had engaged in minimal
analysis of aggregate limits. Further, the limits at issue in McCutcheon, which were enacted in
2002, established a different statutory regime and operated under a distinct legal backdrop. Since
Buckley was decided, the opinion observed, statutory and regulatory safeguards against
circumvention have been enacted.32 The opinion also outlined additional safeguards that Congress
could enact to prevent circumvention of base contribution limits, such as targeted restrictions on
transfers among candidates and political committees or enhanced restrictions on earmarking, but
cautioned that the opinion was not meant to evaluate the validity of any particular proposal.33
Further distinguishing the holding in Buckley, the ruling emphasized that aggregate contribution
limits restrict how many candidates and committees that an individual can support, which is not a
“modest restraint.”34 Once an individual contributed $5,200 each to nine candidates, the aggregate
limits were triggered and, as the opinion calculates, the individual was then prohibited from
making further contributions, up to the maximum permitted by the base limits, to other
candidates. This “outright ban” on further contributions, the opinion concludes, unconstitutionally
restricts both free speech and association rights.35 In response to a point made by the dissent,36 the
opinion stated that the proper focus of First Amendment protections is on the individual’s right to
engage in political speech, not on a generalized concept of the public good through “collective
speech.”37
28 Id. at 1451.
29 The Court explained that “[t]he hallmark of corruption is the financial quid pro quo: dollars for political favors.” Id.
at 1441 (quoting Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480, 497
(1985)).
30 Id. at 1450.
31 Buckley v. Valeo, 424 U.S. 1, 38 (1976).
32 See McCutcheon, 134 S. Ct. at 1446-48.
33 See id. at 1458-59.
34 Id. at 1448.
35 Id. at 1448-49.
36 The dissent maintained that the First Amendment was designed to protect “collective speech” in order to preserve
democratic order, not just the political speech rights of an individual. Id. at 1467 (Breyer, J., dissenting).
37 McCutcheon, 134 S. Ct. at 1449.
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Candidates Whose Opponents Self-Finance
The Supreme Court has determined that a statute establishing a series of staggered increases in
contribution limits for candidates whose opponents significantly self-finance their campaigns
violates the First Amendment. In Davis v. Federal Election Commission,38 the Supreme Court
invalidated such a provision, finding that the penalty it imposed on expenditures of personal
funds is not justified by the compelling governmental interest of lessening corruption or its
appearance.
The provision at issue in this case was enacted as part of BCRA and is known as the
“Millionaire’s Amendment.” 39 Until it was invalidated by the Davis ruling, the complex statutory
formula provided, (using limits that were in effect at the time the case was considered), that if a
candidate for the House of Representatives spent more than $350,000 of personal funds during an
election cycle, individual contribution limits applicable to his or her opponent were increased
from the usual current limit ($2,300 per election) to up to triple that amount (or $6,900 per
election). Likewise for Senate candidates, a separate provision generally raised individual
contribution limits for a candidate whose opponent exceeds a designated threshold level of
personal campaign funding that is based on the number of eligible voters in the state. 40 For both
House and Senate candidates, the increased contribution limits were eliminated when parity in
spending was reached between the two candidates.
The Court noted that while it has long upheld the constitutionality of limits on individual
contributions, it has definitively rejected any limits on a candidate’s expenditure of personal funds
to finance campaign speech.41 In Buckley v. Valeo, the Court noted, it had determined that such
limits impose a significant restraint on a candidate’s right to advocate for his or her own election
that are not justified by the compelling governmental interest of preventing corruption. That is,
instead of preventing corruption, it had determined that the use of personal funds actually lessens
a candidate’s reliance on outside contributions and thereby counteracts coercive pressures and
risks of abuse that contribution limits seek to avoid.
While acknowledging that the Millionaire’s Amendment does not directly impose a limit on a
candidate’s expenditure of personal funds, the Court concluded that it nonetheless imposed an
“unprecedented penalty on any candidate who robustly exercises that First Amendment right.”42
Further, the Court said that it required a candidate to make a choice between the right of free
political expression and being subjected to discriminatory contribution limits. Indeed, the Court
concluded that if a candidate vigorously exercises the right to use personal funds, the law creates
a fundraising advantage for his or her opponents. In contrast, if the law had simply increased the
38 554 U.S. 724 (2010). For further discussion, see CRS Report RS22920, Campaign Finance Law and the
Constitutionality of the “Millionaire’s Amendment”: An Analysis of Davis v. Federal Election Commission, by L. Paige
Whitaker.
39 P.L. 107-155, § 319(a), codified at 52 U.S.C. § 30117(a), (formerly codified at 2 U.S.C. § 441a-1(a)), established
increased contribution limits for House candidates whose opponents significantly self-finance their campaigns.
40 P.L. 107-155, § 304, codified at 52 U.S.C. § 30116(i), (formerly codified at 2 U.S.C. § 441a(i)), established
increased contribution limits for Senate candidates whose opponents significantly self-finance their campaigns.
41 Davis, 554 U.S. at 738. The Court pointed out that “[i]n Buckley, we soundly rejected a cap on a candidate’s
expenditure of personal funds to finance campaign speech.” Id. (citing Buckley, 424 U.S. at 52-53).
42 Id. at 724.
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contribution limits for all candidates—both the self-financed candidate as well as the opponent—
the Court opined that it would have passed constitutional muster.
In response to the Federal Election Commission’s argument that the statute’s “asymmetrical
limits” are justified because they level the playing field for candidates of differing personal
wealth, the Court pointed out that its campaign finance precedent offers no support for this
rationale serving as a compelling governmental interest. According to the Court, preventing
corruption or its appearance are the only legitimate compelling governmental interests identified
so far that justify restrictions on campaign financing.43 Quoting Buckley, the Court reiterated that
restricting the speech of some, in order to enhance the relative speech of others, is “wholly
foreign to the First Amendment.”44 Intrinsically, candidates have different strengths based on
factors such as personal wealth, fundraising ability, celebrity status, or a well-known family
name. By attempting to level electoral opportunities, the Court observed, Congress is deciding
which candidate strengths should be allowed to impact an election. Using election law to
influence voters’ choices, the Court warned, is “dangerous business.”45
Minors
The Supreme Court has determined that a prohibition on contributions by minors age 17 or
younger violates the First Amendment. In McConnell v. Federal Election Commission,46 by a
unanimous vote, the Court invalidated Section 318 of BCRA,47 which prohibited individuals age
17 or younger from making contributions to candidates and political parties. Determining that
minors enjoy First Amendment protection and that contribution limits impinge on such rights, the
Court determined that the prohibition was not closely drawn to serve a sufficiently important
interest.48
In response to the government’s assertion that such a prohibition protects against corruption by
conduit—that is, parents donating through their minor children to circumvent contribution
limits—the Court found little 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. Even assuming arguendo, that a
sufficiently important interest could be provided in support of the prohibition, the Court
determined that it is over inclusive. The Court observed that various states have found more
tailored approaches to address this issue, for example, by 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 very young children. The Court, however, expressly
declined to decide whether any alternatives would pass muster.49
43 Id. at 741.
44 Id. at 742 (quoting Buckley, 424 U.S. at 48-49).
45 Id.
46 540 U.S. 93 (2003).
47 P.L. 107-155, § 318, codified at 52 U.S.C. § 30126, (formerly codified at 2 U.S.C. § 441k).
48 See McConnell, 540 U.S. at 231-32 (citing Tinker v. Des Moines Independent Community School District, 393 U.S.
503, 511-513 (1969); Buckley v. Valeo, 424 U.S. 1, 20-22 (1976)).
49 See id. at 232.
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Super PACs
The U.S. Court of Appeals for the District of Columbia has held that limits on contributions to
groups that make only independent expenditures are unconstitutional. In SpeechNow.org v.
Federal Election Commission,50 the court concluded that because the Supreme Court in Citizens
United v. Federal Election Commission51 determined that independent expenditures do not give
rise to corruption, contributions to groups making only independent expenditures do not give rise
to corruption.52 Citizens United is discussed in greater detail below, in the portion of the report
examining limits on expenditures.
In Citizens United, the Court relied, in part, on its ruling in Buckley v. Valeo.53 In Buckley, it
determined that expenditures made “totally independently”—in other words, not coordinated with
any candidate or party—do not create a risk of corruption or its appearance, and therefore, cannot
be constitutionally limited.54 Accordingly, the court in SpeechNow.org reasoned that the
government does not have an anti-corruption interest in limiting contributions to groups that
make only independent expenditures. It further concluded that FECA contribution limits are
unconstitutional as applied to such groups.55 Such groups have come to be known as “super
PACs” or “Independent Expenditure-only Committees.”56
Since SpeechNow was decided, the FEC has issued advisory opinions (AOs) providing guidance
regarding the establishment and administration of super PACs. For example, the FEC concluded
that a tax-exempt § 501(c)(4) corporation may establish and administer a political committee that
makes only independent expenditures, and may accept unlimited contributions from individuals.57
It confirmed that such committees may also accept unlimited contributions from corporations,
labor unions, and political committees, in addition to individuals.58 The FEC also determined that
when fundraising for super PACs, federal candidates, officeholders, and party officials are subject
to FECA fundraising restrictions.59 That is, they can only solicit contributions up to $5,000 from
individuals (other than foreign nationals or federal contractors) and federal PACs.
50 599 F.3d 686 (D.C. Cir. 2010), cert. denied, Keating v. Federal Election Commission, 131 S. Ct. 553 (2010).
51 558 U.S. 310 (2010). For further discussion, see infra pp. 10-14.
52 See SpeechNow.org, 599 F.3d at 694-95.
53 424 U.S. 1 (1976).
54 Id. at 47. (“Unlike contributions, such independent expenditures may well provide little assistance to the candidate’s
campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure
with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the
danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”).
55 See SpeechNow.org, 599 F.3d at 694-96. See also, Carey v. Federal Election Commission, 791 F. Supp. 2d 121
(D.D.C. 2011) (enjoining the FEC from enforcing contribution limits against a nonconnected PAC, i.e., a PAC
unaffiliated with a corporation or union, for its independent expenditures, as long as the PAC maintained a bank
account for its unlimited contributions separate from its account subject to limits; proportionally paid related
administrative costs; and complied with the applicable monetary limits of hard money contributions).
56 For further discussion, see CRS Report R42042, Super PACs in Federal Elections: Overview and Issues for
Congress, by R. Sam Garrett.
57 AO 2010-09, issued to Club for Growth, Inc.
58 AO 2010-11, issued to Commonsense Ten.
59 AO 2011-12, issued to Majority PAC.
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Expenditures
Candidates
The Supreme Court has determined that limits on candidate expenditures are unconstitutional in
violation of the First Amendment. In Buckley v. Valeo,60 the Court held that in contrast to
contribution limits, expenditure limits impose significantly greater restrictions on First
Amendment protected freedoms of political expression and association.61
Expenditure limits impose a restriction on the amount of money that a candidate can spend on
communications, thereby reducing the number and depth of issues discussed and the size of the
audience reached.62 Such restrictions, the Court found, are not justified by an overriding
governmental interest. That is, because expenditures do not involve money flowing directly to the
benefit of a candidate’s campaign fund, the risk of quid pro quo corruption does not exist.
Further, the Court rejected the government’s asserted interest in equalizing the relative resources
of candidates, and in reducing the overall costs of campaigns.
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
a law limiting expenditures from personal funds. When a candidate self-finances, the Court
pointed out, his or her dependence on outside contributions is reduced, thereby lessening the risk
of corruption.63
Likewise, in its 2006 decision, Randall v. Sorrell,64 the Court struck down as unconstitutional a
Vermont statute imposing expenditure limits on state office candidates.65 In support of the limits,
the state argued that they served the governmental interest in reducing the amount of time that
candidates spend raising money in order for candidates to have more time to engage in public
debate and meet with voters. Further, supporters of the law argued that in Buckley,66 the Court did
not consider this time saving rationale and had it done so, it would have upheld expenditure
limitations in that decision.67 While unable to reach consensus on a single opinion, six justices
agreed that the expenditure limits violated First Amendment free speech guarantees. Announcing
the Court’s judgment and delivering an opinion, joined by two other justices, 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 the opinion, it was not
likely that fuller consideration of the “time protection rationale” would have changed the result of
Buckley because the Court in that case recognized the link between expenditure limits and a
60 424 U.S. 1 (1976).
61 See id. at 23.
62 See id.
63 See id. at 53.
64 548 U.S. 230 (2006).
65 See id. at 237-38. The expenditure limits imposed by the Vermont law 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.
66 424 U.S. 1 (1976).
67 See Randall, 548 U.S. at 245.
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reduction in the time needed by a candidate for fundraising, but nonetheless struck down the
expenditure limits.68 Therefore, Justice Breyer’s opinion concluded, given the continued authority
of Buckley, the Court must likewise strike down Vermont’s expenditure limits.69
Political Parties
The Supreme Court has determined that limits on independent expenditures by political parties
are unconstitutional under the First Amendment. Federal campaign finance law defines an
independent expenditure to include spending for a communication that expressly advocates the
election or defeat of a clearly identified candidate, and is not made in cooperation or consultation
with a candidate or a political party. In Colorado Republican Federal Campaign Committee v.
FEC (Colorado I),70 the Court held that independent expenditures do not raise heightened
governmental interests in regulation because the money is deployed to advance a political point of
view separate from a candidate’s viewpoint and, therefore, cannot be limited under the First
Amendment.71 The Court emphasized that the “constitutionally significant fact” of an
independent expenditure is the absence of coordination between the candidate and the source of
the expenditure.72 In contrast, in Colorado II,73 the Court ruled that a political party’s coordinated
expenditures—that is, expenditures made in cooperation or consultation with a candidate—may
be constitutionally limited in order to minimize circumvention of contribution limits. According
to the Court, in contrast to independent expenditures, coordinated party expenditures have no
“significant functional difference” from direct party candidate contributions.74
The Court has also determined that a requirement that political parties choose between making
coordinated and independent expenditures is unconstitutional. In McConnell v. FEC,75 the Court
found that Section 213 of BCRA,76 which required political parties to choose between
coordinated and independent expenditures after nominating a candidate, burdened the First
Amendment right of parties to make unlimited independent expenditures.77
Corporations and Labor Unions
The Supreme Court has held that limits on corporate, and it appears labor union,78 expenditures
that are made independently of any candidate or political party are unconstitutional under the
68 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, 424 U.S. at 9).
69 See id. at 246.
70 518 U.S. 604 (1996).
71 See id. at 614-615 (citing FEC v. National Conservative Political Action Committee (NCPAC), 479 U.S. 238 (1985)).
72 Id. at 617 (citing Buckley, 424 U.S. at 45-46; NCPAC, 479 U.S. at 498).
73 FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431 (2001). For further
discussion, see CRS Report RS22644, Coordinated Party Expenditures in Federal Elections: An Overview, by R. Sam
Garrett and L. Paige Whitaker.
74 Colorado II, 533 U.S. at 464.
75 540 U.S. 93 (2003).
76 P.L. 107-155, § 203, codified at 52 U.S.C. § 30116(d)(4), (formerly codified at 2 U.S.C. § 441a(d)(4)).
77 See Colorado II, 533 U.S. at 213-21.
78 Although the issue before the Court was limited to the application of the prohibition on independent expenditures and
electioneering communications to Citizens United, a corporation, the reasoning of the opinion also appears likely to
(continued...)
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First Amendment. Such expenditures are protected speech, regardless of whether the speaker is a
corporation. Permitting a corporation to engage in independent electoral speech through a
political action committee (PAC) does not allow the corporation to speak directly, and does not
alleviate the First Amendment burden created by such limits.
In Citizens United v. Federal Election Commission,79 the Court invalidated two prohibitions on
independent electoral spending. It struck down the long-standing prohibition on the use of
corporate general treasury funds for “independent expenditures,”80 and Section 203 of BCRA
prohibiting the use of such funds for “electioneering communications.”81 The prohibitions are
codified in FECA at 52 U.S.C. § 30118.82 Independent expenditures are communications that
expressly advocate the election or defeat of a clearly identified candidate, and are not coordinated
with any candidate or party.83 Electioneering communications are broadcast, cable, or satellite
transmissions that refer to a clearly identified federal candidate and are made within 60 days of a
general election or 30 days of a primary, and are not coordinated with any candidate or party.84
To mitigate concerns that the law could prohibit First Amendment protected issue speech—
known as issue advocacy—a 2007 Supreme Court decision, FEC v. Wisconsin Right to Life, Inc.
(WRTL II),85 narrowed the definition of an electioneering communication. In WRTL II, the Court
determined that the term encompassed only express advocacy,86 (for example, communications
stating “vote for” or “vote against”) or the “functional equivalent” of express advocacy. That is,
communications that could reasonably be interpreted as something other than an appeal to vote
for or against a specific candidate were not considered electioneering communications. Despite
the limiting principle imposed by WRTL II, the Court in Citizens United found that both
prohibitions were a “ban on speech” in violation of the First Amendment.87 In comparison to the
prohibitions at issue in Citizens United, which include criminal penalties, the Court pointed out
(...continued)
apply to labor unions. “The text and purpose of the First Amendment point in the same direction: Congress may not
prohibit political speech, even if the speaker is a corporation or union.” Citizens United, 558 U.S. 310, 376 (2010).
79 558 U.S. 310 (2010). For further discussion, see CRS Report R41045, The Constitutionality of Regulating Corporate
Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC, by L. Paige Whitaker.
80 Codified at 52 U.S.C. § 30118(a), (formerly codified at 2 U.S.C. § 441b(a)).
81 P.L. 107-155, § 203, codified at 52 U.S.C. § 30118(b)(2), (formerly codified at 2 U.S.C. § 441b(b)(2)).
82 Formerly codified at 2 U.S.C. § 441b.
83 52 U.S.C. § 30101(17), (formerly codified at 2 U.S.C. § 431(17)).
84 52 U.S.C. § 30104(f)(3), (formerly codified at 2 U.S.C. § 434(f)(3)).
85 551 U.S. 449 (2007). WRTL II was decided four years after the Supreme Court upheld the electioneering
communication prohibition against a First Amendment facial challenge in McConnell v. FEC, 540 U.S. 93 (2003).
While not expressly overruling McConnell, the Court in WRTL II limited the law’s application. For further discussion,
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.
86 In Buckley, the Supreme Court provided the genesis for the concept of issue and express advocacy communications.
In order to avoid invalidation of a provision of FECA on grounds of unconstitutional vagueness, the Court applied a
limiting construction so that it only applied 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. express advocacy. In a footnote,
the Court explained that this would restrict the application of the provision to communications containing express
advocacy terms, such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,”
“defeat,” and “reject.” Buckley, 424 U.S. at 44, n.52.
87 Citizens United, 558 U.S. at 339.
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that it has invalidated even less restrictive laws under the First Amendment, such as laws
requiring permits and impounding royalties.88
The statute prohibiting corporate expenditures contained an exception. It permitted corporations
to use their treasury funds to establish, administer, and solicit contributions to a PAC in order to
make expenditures.89 The Court, however, rejected the argument that permitting a corporation to
establish a PAC mitigated the complete ban on speech that the law imposed on the corporation
itself. A corporation and a PAC are separate associations, the Court reasoned, and allowing a
PAC to speak does not translate into allowing a corporation to speak.90 Enumerating the
“onerous” and “expensive” reporting requirements associated with PAC administration, the Court
announced that even if a PAC could permit a corporation to speak, “the option to form a PAC
does not alleviate the First Amendment problems” with the law.91 Further, the Court pointed out
that such administrative requirements may prevent a corporation from having enough time to
create a PAC in order to communicate its views in a given campaign.92
After determining that the law bans free speech, the Court explained that it is subject to a strict
scrutiny analysis, requiring the government to demonstrate that the restriction is narrowly tailored
to further a compelling governmental interest. Employing that analysis, the Court noted that in
Buckley v. Valeo,93 it found that while large campaign contributions create a risk of quid pro quo
candidate corruption, large independent expenditures do not.94 In Buckley, the Court explained, it
had found that limits on independent expenditures fail to serve the governmental interest in
stemming the reality or appearance of corruption.95
Of significance, the Court in this case found that it was faced with conflicting precedent. On one
hand, the Court observed, its 1978 decision of First National Bank of Boston v. Bellotti96 had
reaffirmed that the government cannot restrict political speech because the speaker is a
corporation. On the other hand, its 1990 decision of Austin v. Michigan Chamber of Commerce97
had permitted a restriction on such speech in order to avoid corporations having disproportionate
economic power in elections.
In Bellotti, the Court struck down a state law prohibiting corporate independent expenditures
related to referenda. Notably, Bellotti did not consider the constitutionality of a ban on corporate
88 See id. at 337. According to the Court, the following actions would constitute a felony under the law: the Sierra Club
running an ad within 60 days of a general election exhorting the public to disapprove of a Congressman who supports
logging in national forests; the National Rifle Association publishing a book urging the public to vote for the challenger
to an incumbent U.S. Senator who supports a handgun ban; and the American Civil Liberties Union creating a website
telling the public to vote for a presidential candidate because of the candidate’s defense of free speech. Such
prohibitions, the Court concluded, “are classic examples of censorship.” Id.
89 52 U.S.C. § 30118(b)(2)(c), (formerly codified at 2 U.S.C. § 441b(b)(2)(c)). The law also permits a corporation to
establish a PAC in order to make contributions. As a result of Citizens United, corporations are currently only required
to use PAC funds to make contributions.
90 See Citizens United, 558 U.S. at 337.
91 Id.
92 See id. at 339.
93 424 U.S. 1 (1976).
94 See Citizens United, 558 U.S. at 345.
95 See id.
96 435 U.S. 765 (1978).
97 494 U.S. 652 (1990).
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independent expenditures in support of candidates. Even if it had, the Court in Citizens United
said, such a restriction would also have been unconstitutional in order to be consistent with the
main tenet of Bellotti, “that the First Amendment does not allow political speech restrictions
based on a speaker’s corporate identity.”98 In contrast, the Court in Austin upheld a state law
prohibiting, and imposing criminal penalties, on corporate independent expenditures that
supported or opposed any candidate for state office. According to the Court in Citizens United, in
order to “bypass Buckley and Bellotti,” the Court in Austin identified a new governmental interest
justifying limits on political speech, the “antidistortion interest.” 99 That is, the Court in Austin
determined that “the corrosive and distorting” impact of large amounts of money that were
acquired with the benefit of the corporate form, but were unrelated to the public’s support for the
corporation’s political views, constituted a sufficiently compelling governmental interest to
justify such a restriction.100
The Court rejected the antidistortion rationale it had relied upon in Austin. Independent
expenditures, the Court announced, including those made by corporations, do not cause
corruption or the appearance of corruption.101 The Austin precedent “interferes with the ‘open
marketplace’ of ideas protected by the First Amendment” by permitting the speech of millions of
associations of citizens—many of them small corporations without large aggregations of
wealth—to be banned.102 The Court found that the First Amendment prohibits restrictions that
allow the speech of some, but not of others, and said it was “irrelevant for purposes of the First
Amendment that corporate funds may ‘have little or no correlation to the public’s support for the
corporation’s political ideas,’” noting that all speakers—including individuals and the media—are
financed with monies derived from the economic marketplace.103 In its prior jurisprudence, the
Court observed, it has determined that the protections of the First Amendment extend to the
political speech of corporations.104 Specifically, the Court noted that it has rejected the argument
that the political speech of corporations or other associations should be treated differently under
the First Amendment “simply because such associations are not ‘natural persons.’”105 Notably,
the Court also found that supporting the ban on corporate expenditures would have the
“dangerous” and “unacceptable” result of permitting Congress to ban the political speech of
98 Citizens United, 558 U.S. at 346-47 (quoting Bellotti, 435 U.S. at 784-85).
99 Id. at 348
100 Id. (quoting Austin v. Michigan Chamber of Commerce, 494 U.S. at 660).
101 See id. at 357.
102 Id. at 354.
103 Id. at 351 (quoting Austin, 494 U.S. at 660).
104 See id. at 342 (citing First National Bank of Boston v. Bellotti, 435 U.S. 765, 778, n. 14) (citing Linmark Associates,
Inc. v. Willingboro, 431 U.S. 85 (1977); Time, Inc. v. Firestone, 424 U.S. 448 (1976); Doran v. Salem Inn, Inc., 422
U.S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420
U.S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); New York Times Co. v. U.S., 403 U.S.
713 (1971) (per curiam); Time, Inc. v. Hill, 385 U.S. 374 (1967); New York Times Co. v. Sullivan, 376 U.S. 254;
Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U.S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343
U.S. 495 (1952)); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997); Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996); Turner Broadcasting System, Inc. v. FCC, 512
U.S. 622 (1994); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Board, 502 U.S. 105 (1991); Sable
Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989); Florida Star v. B. J. F., 491 U.S. 524 (1989); Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978);
Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974);
Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6 (1970)).
105 Id. at 343 (quoting Bellotti, 435 U.S. at 776).
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media corporations.106 Although media corporations were exempt from the federal ban on
corporate expenditures, the Court announced that upholding the antidistortion rationale would
allow their speech to be restricted, in violation of First Amendment precedent. In sum, the
Supreme Court in Citizens United overruled its holding in Austin and the portion of its decision in
McConnell v. FEC upholding the facial validity of the BCRA prohibition on electioneering
communications, finding that the McConnell Court relied on Austin.107
In a 2012 ruling, the Supreme Court clarified that its holding in Citizens United applies to state
and local law. In American Tradition Partnership v. Bullock,108 the Court rejected arguments
made by the State of Montana attempting to distinguish a Montana law from the federal law
invalidated by Citizens United. Reversing a Montana Supreme Court ruling, the Supreme Court
found that the arguments proffered by the state either had already been rejected in Citizens United
or did not distinguish that ruling in a meaningful way.109 The Court reiterated that “political
speech does not lose First Amendment protection simply because its source is a corporation.”110
Conclusion
Throughout the history of its campaign finance jurisprudence, the U.S. Supreme Court has found
that limits on contributions are afforded less rigorous scrutiny under the First Amendment than
limits on expenditures. As a result, with some notable exceptions, the trend of the Court has been
to uphold limits on contributions, but invalidate limits on expenditures. Its most recent rulings,
however, have announced that only quid pro quo corruption or its appearance constitute a
sufficiently important governmental interest to justify limits on both contributions and
expenditures. Spending large sums of money in connection with elections without attempting to
control how an officeholder exercises his or her official duties does not give rise to corruption, the
Court has found. Further, government interests in lessening influence over or access to elected
officials have been soundly rejected, as well as interests in lessening the costs of campaigns and
equalizing financial resources among candidates. As a result, in 2014, the Court overturned limits
on aggregate contributions. Although the Court did not expressly adopt a stricter standard of
review for contribution limits, the Court’s finding may have a doctrinal impact on the
constitutionality of contribution limits in future rulings.
106 Id. at 351.
107 See id. at 365-66. Referencing Justice Scalia’s concurrence in WRTL II, the Court agreed with the conclusion that
“Austin was a significant departure from ancient First Amendment principles,” and held “that stare decisis does not
compel the continued acceptance of Austin.” Id. at 319 (quoting WRTL II, 551 U.S. at 449 (Scalia, J., concurring in part
and concurring in judgment)).
108 132 S. Ct. 2490 (2012). For further discussion, see CRS Legal Sidebar WSLG94, “No Serious Doubt” About It:
Citizens United Applies to State Law Prohibiting Campaign Expenditures, by L. Paige Whitaker.
109 The Montana Supreme Court identified several interests in support of the law’s constitutionality, thereby
distinguishing it from the law upheld in Citizens United, including issues relating to corporate influence, sparse
population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and
low campaign costs. The court determined that these interests left Montana particularly vulnerable to corporate control.
See Western Tradition Partnership, Inc. v. Attorney General, 271 P.3d 1, 11 (Mont. 2011).
110 American Tradition Partnership, 132 S. Ct. at 2491 (quoting Citizens United, 558 U.S. at 900 (internal quotation
marks omitted)).
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Author Contact Information
L. Paige Whitaker
Legislative Attorney
lwhitaker@crs.loc.gov, 7-5477
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