III

Campaign Finance

Federal statutes regulating the financing of political campaigns have drawn a basic distinction between two categories of speech—so-called campaign speech, which expressly advocates the election or defeat of specific candidates, and speech about general issues such as taxation, disaster relief, global warming, abortion, or gun control.

The law allows business corporations to form and operate political action committees (PACs) that are financed by voluntary contributions from their stockholders and employees. Expenditures by PACs are essentially unregulated because—unlike expenditures of a corporation’s general funds—they do not impose a significant risk of using minority shareholders’ money to support causes that those shareholders oppose.

Citizens United is a wealthy nonprofit corporation that runs a PAC with millions of dollars in assets. It is supported almost entirely by contributions from individuals, but it has received some funds from corporate donors. In 2008 it released a ninety-minute film about then-Senator Hillary Clinton, who was a potential candidate for president; the film’s unambiguous opposition to her candidacy qualified it as campaign speech.

The Bipartisan Campaign Reform Act of 2002 (BCRA) prohibited corporations and unions from using general treasury funds to finance campaign speech during a period of thirty days before a primary election. In an opinion written jointly by Justice Sandra Day O’Connor and me in early 2003, the Court held that that prohibition was constitutional. Fearing that television advertisements about the movie, as well as the movie itself, might violate that prohibition, Citizens United brought suit against the Federal Election Commission seeking an injunction against enforcement of that statute, arguing that the movie was not an “electioneering communication” within the meaning of the statute and that the statute should not apply to a not-for-profit corporation. The district court denied relief and Citizens United appealed to the Supreme Court (campaign finance is regulated in a relatively unusual statutory scheme: a three-judge district court ruling is appealable directly to the Supreme Court). After hearing the initial argument, the Court ordered the parties to reargue the case and address the issue that had been recently decided in the opinion that Justice O’Connor and I had written in 2003. By a vote of five to four, the Court ruled for Citizens United and essentially held that corporations have an unlimited constitutional right to finance campaign speech.

I shall not repeat the arguments that I advanced in my eighty-six-page dissent that Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined (and that Justice David Souter has told me he would have joined had he still been a member of the Court when the case was reargued). Instead, I shall explain why it is unwise to allow persons who are not qualified to vote—whether they be corporations or nonresident individuals—to have a potentially greater power to affect the outcome of elections than eligible voters have.

In his 1905 annual message to Congress, President Theodore Roosevelt declared,

All contributions by corporations to any political committee for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.

Two years later Congress passed a statute banning all corporate contributions to political candidates. For decades thereafter, Congress, most state legislators, and members of the Supreme Court apparently assumed that it was both wise and constitutional to impose greater restrictions on corporate participation in elections than on individuals.

As an example, in 1982 Justice William H. Rehnquist, writing for a unanimous Court in Federal Election Commission v. National Right to Work Committee, a case holding that Congress could prohibit not-for-profit corporations from soliciting funds from nonmembers for political purposes, stated that there is no reason why Congress’s interest in preventing both actual corruption and the appearance of corruption of elected representatives may not “be accomplished by treating… corporations differently from individuals.”¹ Such was the consensus that the first opinions written by any member of the Court arguing that corporate expenditures in election campaigns are entitled to the same constitutional protection as the activity of individual voters were not announced until 1990. Yet the dissenting opinions written by Justices Antonin Scalia and Anthony Kennedy in that year in Austin v. Michigan Chamber of Commerce² are unquestionably among the most significant writings on the subject of campaign financing by any justice. In those opinions, Justices Scalia and Kennedy advanced the arguments that later persuaded three of their future colleagues to join the majority in Citizens United v. Federal Election Commission.³

In the Michigan Chamber of Commerce case the Court had upheld the constitutionality of a Michigan statute that prohibited corporations from making any expenditure in connection with an election campaign for state office. The law made it a crime for the Chamber to pay for a newspaper advertisement announcing its support for a candidate seeking election to the Michigan legislature. Justice Scalia dissented and argued that corporate speech, like other expressive activities by groups of persons, was entitled to the same First Amendment protection as speech by an individual. Justice Kennedy also dissented and contended that a speaker’s identity as a corporation was an impermissible basis for regulating its speech or its expenditures financing speech. Two decades later, those same arguments provided the basis for the Court’s five-to-four decision in Citizens United overruling the Michigan Chamber of Commerce case and apparently affording the same constitutional protection to election-related expenditures by corporations as to speech by individual voters.

Contributions to the campaign to reelect President Richard Nixon in 1972 were managed by the organization known by the acronym CRP (mocked as CREEP)—the Committee for the Re-Election of the President. Not all of those funds were used to finance expressive activities. Some of them were in the possession of the five burglars who broke into the headquarters of the Democratic National Committee in the Watergate complex in Washington, D.C., on June 17, 1972, apparently for the purpose of obtaining information about the Democrats’ campaign strategy. The break-in had a multitude of unintended and unexpected consequences. Especially important was the Supreme Court decision resolving a controversy between the special prosecutor and President Nixon that required him to surrender tape recordings of his private conversations. That decision shed a brilliant light on the power and independence of the federal judiciary; it led to the resignation of President Nixon and, in turn, to the succession of Gerald Ford to the presidency.⁴ It is not, however, that consequence of Watergate that I shall discuss in this chapter. Instead, I shall identify a constitutional issue arising out of legislation enacted by Congress in response to the Watergate break-in; namely, whether limits on campaign expenditures may be justified by the interest in providing opposing candidates with an equal opportunity to persuade their fellow citizens to vote for them.

The legislation that followed the Watergate break-in applied new rules to a host of campaign-related issues that had nothing to do with the break-in itself. Among them were provisions limiting the amounts of money that could be contributed to candidates for federal office, as well as the amounts that candidates and their supporters could spend during their campaigns. The constitutionality of those limitations, as well as a number of other provisions of the Federal Election Campaign Act Amendments of 1974, was being reviewed by the Supreme Court in November of 1975 when I was sworn in as a justice. When finally announced on January 30, 1976, the opinions resolving those issues in the case of Buckley v. Valeo⁵ totaled 294 pages. Multiple drafts of those opinions were circulated during the weeks preceding their public release. Although I did not participate in the decision of the case—or in any of the deliberations that preceded the decision—I felt obligated to review what my colleagues were writing and debating. Whether that tedious and seemingly endless reading enhanced my understanding of the subject is a matter of debate, but I do remember acquiring a profound aversion to issues related to the financing of political campaigns while reading those drafts. In order to avoid causing you to share my aversion to the subject, I shall just briefly explain my agreement with Justice Byron White’s dissent from a critical portion of the Buckley opinion and my reasons for supporting a constitutional amendment to correct the Court’s central mistake in that case.

In later years I sometimes agreed and sometimes disagreed with Byron’s views about the law, but I always regarded him as a special friend. I had first met him in Pearl Harbor during World War II. He served as a law clerk to Chief Justice Fred Vinson in the 1946 term, the year before I clerked for Wiley Rutledge; I was especially proud of the fact that he was the first former clerk to become a justice. He played a significant role in Jack Kennedy’s campaign for the presidency, which gave him unique insights into the practical aspects of financing political campaigns. While he joined most of the Court’s opinion in the Buckley case, he was the sole dissenter from its invalidation of the limitations on campaign expenditures that Congress had enacted.

In Buckley, the Court of Appeals for the District of Columbia had upheld the statutory limitations on both contributions and expenditures, reasoning that they were regulations of conduct rather than speech and therefore did not abridge the freedom of speech protected by the First Amendment. My new colleagues on the Supreme Court, however, unanimously agreed that the limitations raised a First Amendment issue because they imposed ceilings on the amount of speech that candidates and their supporters could finance. Statutory limitations on the quantity of speech are less troublesome than limitations based on the content of speech and, of course, far less troublesome than limitations based on the viewpoint being expressed in the speech. Thus, even though they merit only what might be described as “third-degree scrutiny” in the hierarchy of First Amendment issues, I agree with the conclusion that such restrictions may violate that amendment if they foreclose too much speech—in the election context, so much so that rival candidates do not have an adequate opportunity to explain to voters why they should win an election.

This conclusion does not require the abandonment of any and all limits on the permissible quantity of speech. The majority of the justices in Buckley correctly held that the limitations on contributions were a permissible protection against possible corrupt practices, explaining that there was no evidence that contribution limits “would have any dramatic adverse effect on the funding of campaigns.”

But agreement on this point did not mean agreement overall. The majority came to a different conclusion with respect to expenditures. Instead of merely considering the aggregate effect of the ceilings on the campaigns, the majority concluded that they impermissibly prevented wealthy individuals from engaging in some methods of communication. As an example, the majority noted that the limit of $1,000 on individual expenditures would prohibit any individual from purchasing one full-page advertisement in a daily edition of a metropolitan newspaper that charged, as one paper did, $6,971.04 for such an ad. Of course, however, it would not have prevented a group of like-minded voters from chipping in to buy such an ad. And it would have had no effect at all on the many voters who either could not afford—or had no desire—to purchase such an ad.

Whereas the Court’s majority focused on the wealthy individual’s right to use his own money to affect the outcome of the election, Justice White thought it more important to evaluate the market-wide impact of the limitation. In his view, preventing one speaker from speaking more loudly than others was acceptable as long as the total supply of speech satisfied the voters’ demand for information and advice. For him, a ceiling on campaign expenditures “represent[ed] the considered judgment of Congress that elections are to be decided among candidates none of whom has overpowering advantage by reason of a huge campaign war chest. At least so long as the ceiling placed upon the candidates is not plainly too low, elections are not to turn on the difference in the amounts of money that candidates have to spend. This seems an acceptable purpose and the means chosen a common-sense way to achieve it.”⁶

But the majority rejected the argument that the “governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy… imposed by [the] expenditure ceiling.”⁷ The Court gave two reasons for such rejection: (1) advocacy of the election or defeat of candidates for federal office must receive at least as much protection under the First Amendment as the discussion of general policy issues; and (2) “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

In my judgment, neither of those reasons is correct. On several later occasions the Court has recognized that restrictions on speech seeking to persuade voters to vote for or against a particular candidate may receive less First Amendment protection than speech about other issues. Just two years after the decision in Buckley, the Court first held that the First Amendment protected a business corporation’s right to spend money to publicize its opposition to a proposed amendment to the Massachusetts Constitution that would have increased its taxes; Justice Lewis Powell in his opinion for the Court explained that “our consideration of a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.”⁸ And in 1992 the Court upheld a Tennessee statute that silenced all campaign-related speech within 100 feet of a polling place while allowing expression on any other subject, whether religious, commercial, or even political if it was unrelated to issues or candidates being voted upon at the time. In my dissenting opinion, I pointed out that “[c]ampaign-free zones are noteworthy for their broad antiseptic sweep. The Tennessee zone encompasses at least 30,000 square feet around each polling place; in some States, such as Kentucky and Wisconsin, the radius of the restricted zone is 500 feet—silencing an area of over 750,000 square feet.”⁹

Even after Citizens United the Court handed down a third decision upholding greater restrictions on speech seeking to persuade voters to vote for or against a particular candidate than on other speech.¹⁰ This was a challenge to the constitutionality of 2 U.S.C. §441e, a federal statute that makes it a crime for anyone who is not an American citizen or a lawful permanent resident to make any contribution to a candidate for federal or state office, or to make any expenditure supporting the election or defeat of any candidate. The two plaintiffs in that third case were aliens lawfully working in the United States—Benjamin Bluman had attended Harvard Law School and was employed by a New York law firm, and Dr. Asenath Steinman was completing her medical residency at Beth Israel Medical Center in New York. Bluman was a Canadian citizen and Steinman was a dual citizen of Canada and Israel. Both of them wanted to spend their own money to advocate the election of certain candidates for federal and state offices, but because neither of them was an American citizen or a lawful permanent resident, they would have committed a federal crime by doing so. In 2011 they brought an action against the Federal Election Commission seeking an injunction against enforcement of Section 441e, contending that the First Amendment, as construed in Buckley v. Valeo and Citizens United v. Federal Election Commission, protected their right to do so. (Under Buckley, their proposed expenditures qualified as speech of the third degree, and as they read Citizens United, the First Amendment prohibited “restrictions distinguishing among different speakers, allowing speech by some but not others.”)¹¹

A three-judge district court dismissed their complaint. In his thoughtful opinion for the court, Judge Brett Kavanaugh explained that the federal government may exclude foreign citizens from activities “intimately related to the process of democratic self-government.”¹² As he read §441e, it “does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting process—providing money for a candidate or spending money in order to expressly advocate for or against the election of a candidate.”¹³ Judge Kavanaugh then quoted the same excerpt from Justice Powell’s 1978 opinion that I included above.

Judge Kavanaugh’s reasoning, though entirely correct, was flatly inconsistent with the proposition undergirding the holding by the majority in Citizens United that election-related speech by nonvoters is always entitled to at least as much protection under the First Amendment as speech about other issues. The principal authority on which his opinion relied was my dissenting opinion in Citizens United.

The same federal statute that gave the plaintiffs the right to have their case heard by a three-judge district court also gave them the right to a direct appeal to the United States Supreme Court. Thus, as a matter of federal law, they were entitled to have the Supreme Court review the merits of the district court’s decision. Because the Court has mandatory jurisdiction of such an appeal—unlike its discretionary jurisdiction over most of the petitions for review that make up the bulk of its docket—the Court could not avoid making a decision on the merits. Furthermore, because the district court’s decision not only raised a novel and unquestionably important issue but also was inconsistent with a central theme of the majority opinion in Citizens United—namely, that a speaker’s identity (in that case identity as a corporation) is an impermissible basis for regulating campaign speech—it seemed obvious to me that the Supreme Court would have the case briefed and argued before deciding it. Instead, presumably because it agreed with Judge Kavanaugh’s reasoning, the Court unanimously affirmed without filing any opinion at all. That summary affirmance demonstrates that the First Amendment will tolerate some regulation of campaign speech that is more restrictive than regulations of speech in other contexts.

As a general matter it is certainly true that speech about controversial policy issues such as gun control or the proper response to global warming may not be censored for the purpose of enhancing the persuasive appeal of either side of the debate. I am not aware of any state or federal laws that have attempted to censor public debate about such issues for that reason. There are, however, situations in which rules limiting the quantity of speech are justified by the interest in giving adversaries an equal opportunity to persuade a decision maker to reach one conclusion rather than another. The most obvious example is an argument before the Supreme Court. Firm rules limit the quantity of both oral and written speech that the parties may present to the decision maker. Those rules assume that the total quantity permitted is sufficient to enable the Court to reach the right conclusion; they are adequately justified by interests in fairness and efficiency.

Those same interests justified rules governing the conduct of the debates among Republican candidates seeking their party’s nomination for president in 2012. It would have been manifestly unfair for the moderator of one of those debates to allow Mitt Romney more time than any other candidate because he had more money than any of his rivals. Restricting his speech “in order to enhance the relative voice of others” made perfect sense, and certainly was not “wholly foreign to the First Amendment.” Thus, the Buckley majority’s second reason for rejecting the interest in equalizing the relative ability of opposing candidates to influence the outcome of elections is entirely unpersuasive.

An unstated third reason must explain the Court’s decision—the expenditure limits imposed by the statute under review were too low. Instead of furthering the legitimate interest in providing a level playing field for opposing candidates, they may well have provided incumbents with an unfair advantage. As the Court pointed out, “the equalization of permissible campaign expenditures might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.”¹⁴ Moreover, the Buckley majority relied on an earlier decision in Mills v. Alabama,¹⁵ which invalidated a statute that prohibited newspapers from publishing editorials on election day urging people to vote a certain way on the issues submitted to them. Because the prohibition was based on the content of the speech, it merited stricter scrutiny than a mere limitation on the quantity of speech. The Court in Mills held that “no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment.” After quoting that comment, the Buckley Court added: “Yet the prohibition of election-day editorials… is clearly a lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person can spend during an entire election year in advocating the election or defeat of a candidate for public office.”¹⁶ That discussion makes perfect sense as an explanation of why the particular limits imposed by the 1974 statute were too low. But it is not a satisfactory explanation of why all limits on expenditures should be invalid. Nor does it explain why reasonable limits may not level the playing field.

Justice White’s position in Buckley may have been flawed because he did not squarely confront the question whether the expenditure limits were so low that they may have tipped the scales in favor of incumbents. But he was surely correct in identifying the interest in preventing wealth from becoming the deciding factor in contested elections as valid and significant. I think he was also correct in placing weight on the public’s perception of the role of money in influencing the outcome of elections. Voters who believe that the power of the purse will determine the outcome of elections are more likely to become bystanders rather than participants in the political process. Candidates would also benefit by being insulated from the “influence inevitably exerted by the endless job of raising increasingly large sums of money.” The advantages of imposing reasonable limits on the amount of money that candidates and their supporters may spend during election campaigns clearly outweigh the disadvantages.

The principal disadvantage that the big spenders identify is a fear that any limit will deprive readers, viewers, and listeners of access to information or arguments that might influence their votes. Their point is valid, but its force diminishes as the volume of speech increases. I believe most members of the television audience share my opinion that at least 75 percent—perhaps even 90 percent—of the campaign commercials could be omitted without depriving viewers of any useful data (indeed, many voters are likely to see the same exact commercial many times in an election cycle). Rather than supporting a prohibition against any limitation on expenditures—no matter how liberal—in my judgment this argument should merely counsel caution against setting limits that are unreasonably low.

I have always found it interesting that in the Buckley litigation no one questioned the validity of the total prohibition against campaign expenditures by either corporations or unions that Congress had enacted in 1947 as a part of the Taft-Hartley Act. That total prohibition had expanded the coverage of the earlier statute enacted in response to the statement by President Theodore Roosevelt that I quoted above, which had previously applied only to contributions by corporations.

The validity of the total prohibition on campaign expenditures by either unions or corporations was debated but not decided in 1957 in a case arising out of the prosecution of a union for publishing an editorial in its union newspaper: United States v. Automobile Workers.¹⁷ In his opinion for the Court, Justice Felix Frankfurter assumed, without squarely deciding, that the prohibition was constitutional. Years later, when the constitutionality of the 1974 Federal Election Campaign Act was debated and decided in the Buckley litigation, neither the justices nor the parties even mentioned the question whether a ban on corporate expenditures would be permissible. That omission suggests that both the bar and the judiciary assumed that the prohibition against corporate expenditures in the Taft-Hartley Act was perfectly valid. The Michigan state legislature obviously shared that assumption in 1976 when it enacted a statute prohibiting corporations from using corporate treasury funds for independent expenditures in support of, or in opposition to, any candidate in elections for state office. As I have already noted, the validity of that Michigan statute was challenged, and ultimately upheld, in 1990 in Austin v. Michigan Chamber of Commerce.¹⁸

In his opinion for the Court, Justice Marshall explained that “the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.”¹⁹ (Of course that comment is equally applicable to wealthy nonresident individuals.) Justices Scalia and Kennedy both wrote dissenting opinions in which they correctly noted that the Court in Buckley had rejected the fear of corruption or the interest in equalizing the candidates’ opportunity to persuade as permissible justifications for limiting campaign expenditures. But in my judgment that was the central error made by the Court in Buckley.

As I noted above, those dissents are especially important because they are the first opinions written by any justice of the Supreme Court expressing the view that corporations have a constitutional right to make unlimited expenditures supporting or opposing candidates in contested elections. Their authors are entitled to credit for persuading three of the eight justices who later joined the Court—Clarence Thomas, John Roberts, and Samuel Alito—to overrule the majority’s decision in the Michigan case and to join the opinion in Citizens United. (It is somewhat ironic that all of the other five justices who later joined the Court—David Souter, Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—either joined my dissent in Citizens United or have written opinions making it clear that they would have done so had they been on the Court at the time.)

If the Court were to confront the issue decided in the Michigan case today, it would surely comment on the reasoning in Judge Kavanaugh’s opinion upholding the ban on campaign expenditures by foreign nationals. That ban did not impose any restriction on their right to speak out in favor of legislative action that would benefit Canadian citizens; it merely limited their ability to influence the selection of the decision makers who would decide whether such legislation should be enacted. The reason Congress excluded them from activities “intimately related to the process of democratic self-government” had nothing to do with the interest in preventing fraud or leveling the playing field. Instead, the statute furthered the federal interest in preserving the power of the voters to control the outcome of elections—an interest that would be impaired if nonvoters had an unlimited right to make campaign expenditures. That federal interest is essentially the same as Michigan’s interest, which was protected from impairment by nonvoters’ expenditures, in the Austin case.

The distinction between debates about issues that legislatures decide and debates during campaigns to elect the members of those legislatures is equally relevant in state and federal elections. The Michigan statute challenged in the 1990 case imposed no restriction on the ability of corporations or any other nonvoters to engage in debates about the wisdom of proposed legislation regulating the use of firearms, as an example, but it did prohibit corporations from making unlimited expenditures in an effort to influence the selection of the officials who decide whether to enact such legislation. Unlimited expenditures by nonvoters in election campaigns—whether made by nonresidents in state elections or by Canadian citizens, by corporations, by unions, or by trade associations in federal elections—impairs the process of democratic self-government by making successful candidates more beholden to the nonvoters who supported them than to the voters who elected them.

The specific evil that President Roosevelt identified in 1905—“contributing corporate funds to control or aid in controlling elections”—was merely one variety of the threat to the election process that is posed by rules that enhance the power of nonvoters to influence election outcomes. The decision in Citizens United took a giant step in the wrong direction. Its most serious consequences can be eliminated without enacting a total prohibition against the use of corporate funds in campaigns. A constitutional amendment authorizing Congress and the states to place “reasonable” limitations on campaign expenditures would allow corporations to make public announcements of their views but would prohibit them from engaging in the kind of repetitive and excessive advocacy that the candidates typically employ. It would also repudiate both the holding and the reasoning in the Citizens United case, giving corporations an unlimited right to spend their shareholders’ money in election campaigns.

I recognize that reliance on a rule authorizing only reasonable limits on expenditure may invite disputes about the levels selected by Congress. That potential is far less objectionable than the total prohibition against expenditure limits that is the regrettable legacy of Buckley. If “reasonableness” is appraised by examining the interests of the entire electorate rather than just the interests of the wealthiest candidates, the issue should not be difficult to resolve. Moreover, a reasonableness threshold would require that the same limit apply to all candidates competing for the same office. I therefore propose this amendment to the Constitution:

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.