Campaign Finance LawAP Government and PoliticsChapter 8: Wilson

Homework: Read Wilson, (200-220) and take notesRead Woll, Buckley vs. Valeo, and “The Presidency and Political Parties”

Campaign Finance…Politics and

money go together like…◦Why?

Why regulate?◦Perceived

corruption in government due to the influence of money

Conflicting values

Campaign Finance Pendulum

The major distinction that has been made by the courts and laws dealing with campaign finance has been between donations/contributions and expenditures.◦To put it simply, donations/contributions can be

limited, but expenditures can mostly not…FECA –towards limitsBuckley – away from limitsAustin – towards limitsBCRA – continue with limits/new limitsMcConnell – continue with limitsCitizens United – swing away from limits

FECA (1971 and 1974) Attempt to enact comprehensive regulations on the way

American campaigns for Congress and President are conducted.◦ Dealt primarily with how money is raised and spent

Four dominant issues◦ Size of contributions to campaigns◦ Sources of contributions◦ Disclosure of campaign financial information◦ Public financing of campaigns

Created the FEC Requires every candidate to establish a committee to report

contributions and expenditures◦ Every donor or expenditure over $100

Creates voluntary program on IRS tax form to fund public financing of campaigns

Continued pre-existing bans on contributions by corporations and labor unions◦ Created new limits on other sources of funding, including individual

contributions to candidates (people, PAC’s, other groups)

Buckley vs. Valeo (1976)The first case to challenge virtually every part of FECA

◦ In order for government limit the free speech that is campaign contributions and expenditures, it must prove that It’s actions are justified by a particularly compelling reason, and; That the law is narrowly tailored to suit that purpose

Only government interest the Court has found acceptable is the “need to prevent actual or apparent corruption” in the political process

Supreme Court struck down several parts of FECA◦ Ends limits on how much of their own money a candidate

could spend ◦ Narrowed the ban on corporations/unions by banning

“express advocacy” only, but can still focus on “political and policy issues” so that they are still part of the discussion Left prohibitions on corporate/union donations and spending

◦ This leaves open the door for parties to solicit and gather “soft money” contributions from any source Used for “grassroots” and get-out-the-vote initiatives since these

are not directed towards any particular candidate

Austin vs. Michigan Chamber of Commerce (1990)

Case which tested the constitutionality of a Michigan campaign finance law that prohibited corporations from using treasury money for independent expenditures to support or oppose candidates in elections for state offices◦ However, if a corporation set up an independent fund

designated solely for political purposes, it could make such expenditures.

The challenge to this law was based on the First and Fourteenth amendments

The Court ruled that the law was constitutional ◦ It held that that “corporate wealth can unfairly influence

elections”;◦ and because of the fact that the law still permitted

corporations to make contributions/expenditures from a separate fund

BCRA (2002)A campaign finance reform bill passed in 2002

◦Known as McCain-Feingold, or Shays-Meehan in the House

Provisions◦Banned “soft money” – unlimited contributions

made to parties for “party-building activities.”◦Redefined “express advocacy” to ban

“electioneering communications” by corporations/labor unions “electioneering communications” – ads that name a

federal candidate within 30 days of primary or 60 days of general election

◦Prohibited minors from making political contributions

◦Raised individual contribution limits – From $1000 to $2000, then adjusted for inflation.

McConnell vs. FEC (2003)Challenge to the BCRASupreme Court upholds most

provisions of the BCRA ◦“electioneering communications” provision◦“soft money” ban◦New limits on contributions

Overturned the ban on minors contributions to candidates

“money, like water, will always find an outlet”; therefore, regulations will continue to be needed.

Current Campaign Donation Limits

Type To candidate To Party To PAC Aggregate Total --

Individual $2,500 per Election to a Federal candidate -- primary, runoff, and general election counts as a separate election.

$30,800 per calendar year

$5000 per calendar year

$117,000 per two-year election cycle as follows:$46,200 per two-year cycle to cand.$70,800 per two-year cycle to all national party committees and PACs

PAC $5000; per election

$15,000 per party per calendar year

$5000 per calendar year

No Limit

Party $5000 No Limit $5000 No Limit, except for Senate candidate per campaign

Contribution limits are adjusted for inflation each odd-numbered year

Citizens United vs. FEC (2010)Facts of the Case:  Citizens United sought an injunction against the Federal Election Commission

in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president.

In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to "electioneering communications." Section 203 of the BCRA prevents corporations or labor unions from funding such communication from their general treasuries. Sections 201 and 311 require the disclosure of donors to such communication and a disclaimer when the communication is not authorized by the candidate it intends to support.

Question:  1) Do the BCRA's disclosure requirements impose an unconstitutional burden

when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"?

2) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA

**Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?

Speechnow vs. FEC The five-justice majority in Citizens United ruled that corporations and labor

unions may spend their own money to support or oppose political candidates through things like TV ads.◦ The decision did not disturb prohibitions on corporate contributions to candidates, and it

did not address whether the government could regulate contributions to groups that make independent expenditures.

This case, concerning 527s, was brought by SpeechNow.org, which said it wanted to raise money to produce advertising to back candidates who supported the First Amendment. The group sued the Federal Election Commission, saying that limits on annual contributions from individuals were unconstitutional.

In the 9-0 opinion, the US Court of Appeals for the DC Circuit cited the Supreme Court’s threshold for campaign finance in ”preventing corruption or the appearance of corruption. “ and said that “Citizens United had foreclosed that rationale where the spending is not coordinated with a candidate. “◦ Indeed, Justice Anthony M. Kennedy, writing for the majority in Citizens United, said that

“independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

The FEC had argued in this case that large contributions to groups that made independent expenditures could “lead to preferential access for donors and undue influence over officeholders.” The Appeals Court said those arguments “plainly have no merit after Citizens United.” http://www.nytimes.com/2010/03/27/us/politics/27campaign.html