KC Johnson

History 3442: Rights-Related Liberalism

  • Donald Critchow and Cynthia Stachecki, “The Equal Rights Amendment Reconsidered: Politics, Policy, and Social Mobilization in a Democracy,” Journal of Policy History
  • Amanda Ross Edwards, “Why Sport?,” Journal of Policy History

Watergate-era new laws:

Federal Campaign Act Amendments (1974 and later), which established limitations on campaign contributions, a public financing system for presidential elections, and an independent agency to administer and enforce the election laws.

Congressional Ethics Code (1977 and later), which set standards of conduct and limited congressional outside earned income, honoraria fees, and gifts.

Ethics in Government Act (1978) which required financial disclosure by high government officials in all three branches of the federal government, restricted contacts between former high level executive branch employees and their former agencies, and established a government office to monitor compliance with the law.

Special Prosecutor Provision of the Ethics in Government Act (1978 and later), which established a mechanism for appointing independent counsel to investigate and prosecute wrongdoing by high government officials.

Foreign Corrupt Practices Act (1977), which prohibited American companies from bribing foreign officials, politicians, or political parties.

Freedom of Information Act Amendments (1974 and later), which strengthened the Freedom of Information Act, increasing public access to government papers.

The Government in the Sunshine Act (1976), which mandated opening meetings of all multi-member government agencies to the public.

House and Senate Open Meeting Rules (1973 and 1975, respectively), which opened all congressional committee meetings to the public absent a recorded vote to close them.

FBI Domestic Security Investigation Guidelines (1976 and later), which restricted political intelligence-gathering activities of the Federal Bureau of Investigation.

Foreign Intelligence Surveillance Act (1978), which regulated electronic surveillance conducted within the United States for foreign intelligence purposes.

Intelligence Authorization Act (1980), which required the Executive Branch to keep the House and Senate Intelligence Committees “fully and currently informed” of all U.S. intelligence activities.


Buckley v. Valeo


No. 75-436 Argued: November 10, 1975 — Decided: January 30, 1976 [*]


These appeals present constitutional challenges to the key provisions of the Federal Election Campaign Act of 1971 (Act), and related provisions of the Internal Revenue Code of 1954, all as amended in 1974.

The Court of Appeals, in sustaining the legislation in large part against various constitutional challenges, viewed it as “by far the most comprehensive reform legislation [ever] passed by Congress concerning the election of the President, Vice-President, and members of Congress.” The statutes at issue, summarized in broad terms, contain the following provisions: (a) individual political contributions are limited to $1,000 to any single candidate per election, with an over-all annual limitation of $25,000 by any contributor; independent expenditures by individuals and groups “relative to a clearly identified candidate” are limited to $1,000 a year; campaign spending by candidates for various federal offices and spending for national conventions by political parties are subject to prescribed limits; (b) contributions and expenditures above certain threshold levels must be reported and publicly disclosed; (c) a system for public funding of Presidential campaign activities is established by Subtitle H of the Internal Revenue Code; and (d) a Federal Election Commission is established to administer and enforce the legislation.


The intricate statutory scheme adopted by Congress to regulate federal election campaigns includes restrictions [p13] on political contributions and expenditures that apply broadly to all phases of and all participants in the election process. The major contribution and expenditure limitations in the Act prohibit individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign and from spending more than $1,000 a year “relative to a clearly identified candidate. Other provisions restrict a candidate’s use of personal and family resources in his campaign and limit the over-all amount that can be spent by a candidate in campaigning for federal office.

The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case. Thus, the critical constitutional [p14] questions presented here go not to the basic power of Congress to legislate in this area, but to whether the specific legislation that Congress has enacted interferes with First Amendment freedoms or invidiously discriminates against nonincumbent candidates and minor parties in contravention of the Fifth Amendment.

It is with these principles in mind that we consider the primary contentions of the parties with respect to the Act’s limitations upon the giving and spending of money in political campaigns. Those conflicting contentions could not more sharply define the basic issues before us. Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental, at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act’s limitations thus constitute restraints on First Amendment liberty that are both gross and direct.

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical, restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending “relative to a clearly identified candidate,” 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press [n19] from any significant use of the most [p20] effective modes of communication. [n20] Although the Act’s limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns [n21] and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.

By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication. [p21] A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate.[n22] A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.

Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. There is no indication, however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations. [n23] The over-all effect of the Act’s contribution [p22] ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression.

The Act’s contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act’s contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates. And the Act’s contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. By contrast, the Act’s $1,000 limitation on independent expenditures “relative to a clearly identified candidate” precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association. See NAACP v. Alabama, 357 U.S. at 460. The Act’s constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression “is simultaneously an interference with the freedom of [their] adherents,” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion). See Cousins v. [p23] Wigoda, 419 U.S. at 487-488;NAACP v. Button, 371 U.S. 415, 431 (1963).

In sum, although the Act’s contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.

We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608(e)(1)’s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quoarrangements as do large contributions, § 608(e)(1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations’ total ban on the giving of large amounts of money to candidates, § 608(e)(1) prevents only some large expenditures. So long as persons and groups eschew expenditures that, in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation’s effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or officeholder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat, but nevertheless benefited the candidate’s campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office. Cf. Mills v. Alabama, 384 U.S. at 220.

Second, quite apart from the shortcomings of § 608(e)(1) [p46] in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending § 608(e)(1) contend that it is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate’s campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions, rather than expenditures under the Act. [n53] Section 608(b)’s [p47] contribution ceilings, rather than § 608(e)(1)’s independent expenditure limitation, prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, 608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. 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. Rather than preventing circumvention of the contribution limitations, § 608(e)(1) severely restricts all independent advocacy despite its substantially diminished potential for abuse.

While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming [p48] the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First Amendment right to “‘speak one’s mind . . . on all public institutions'” includes the right to engage in “‘vigorous advocacy’ no less than ‘abstract discussion.'” New York Times Co. v Sullivan, 376 U.S. at 269, quotingBridges v. California, 314 U.S. 252, 270 (1941), and NAACP v. Button, 371 U.S. at 429. Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation. [n54]It is argued, however, that the ancillary 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 of the election or defeat of candidates imposed by § 608(e)(1)’s expenditure ceiling. ÊBut the concept that government may restrict the speech of some elements of our society in [p49]order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,'” and “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'” New York Times Co. v. Sullivan, supra at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S. at 484. The First Amendment‘s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 13 (1961).

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