Eleanor Finch
The question of whether spending money on political campaigns is protected by free speech has been a highly contested topic in the United States, with the Supreme Court making several rulings on when campaign regulations violate First Amendment rights. Over the past 50 years, there has been a back-and-forth between Congress and the Supreme Court to define and refine limits and protections for campaign spending under the First Amendment. While the Supreme Court has increasingly ruled that spending money on political campaigns is a form of free speech, there are still limitations and regulations in place that vary depending on the flow of funds.
| Characteristics | Values |
|---|---|
| Spending money on political campaigns is protected by free speech | Yes, the U.S. Supreme Court has recognized both giving and spending money on political campaigns as a type of "speech" protected by the First Amendment |
| Court rulings on campaign spending | The Supreme Court has gone back and forth over the past 50 years to define limits and protections for campaign spending under the First Amendment. Notable cases include: Buckley v. Valeo (1976), Austin v. Michigan Chamber of Commerce (1990), Bipartisan Campaign Reform Act (BCRA) or McCain-Feingold (2002), McConnell v. Federal Election Commission (2003), Randall v. Sorrell (2006), Citizens United v. Federal Election Commission (2010), Speechnow.org v. FEC (2010), FEC v. Cruz (2022) |
| Court rulings on campaign contributions | The Supreme Court has upheld some limits on campaign contributions to prevent corruption, while also recognizing the importance of protecting political speech. Notable cases include: Nixon v. Shrink Missouri Government PAC (2000), McConnell v. Federal Election Commission (upheld ban on "soft money" contributions) |
| Nonprofit organizations and political advocacy | Some nonprofit organizations are barred from spending money on political advocacy or explicitly supporting/opposing a candidate to retain their tax-exempt status |
| Super PACs and dark money | The creation of super PACs, which can accept unlimited contributions and spend on independent political activity, has expanded the influence of wealthy donors, corporations, and special interest groups. Legal loopholes allow these groups to keep their funding sources secret, raising concerns about the impact of "dark money" on the political process |
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What You'll Learn
The Supreme Court's stance on spending money on political campaigns
The US Supreme Court recognises both giving and spending money on political campaigns as a type of "speech". Over the past 50 years, the Supreme Court has gone back and forth to define and refine limits and protections for campaign spending under the First Amendment. The Court has become increasingly protective of money spent on campaigns as free speech.
In 1976, the Supreme Court struck down campaign spending limits but upheld contribution limits in Buckley v. Valeo. This was the first case to say that campaign expenditures, or money spent to influence voters, was a type of "speech". The Court's opinion called unjustified limits on money in politics quid pro quo corruption.
In 1990, the Supreme Court upheld a Michigan law restricting corporate campaign spending in Austin v. Michigan Chamber of Commerce. The Court identified characteristics that made the Chamber of Commerce threatening to the electoral process, despite it being a nonprofit.
In 2002, the Bipartisan Campaign Reform Act (BCRA) set additional limits on campaign contributions and election spending by corporations. The Supreme Court struck down the relevant provisions of the BCRA in a 5-4 decision, explaining that restricting the amount a corporation can spend on political communication during a campaign is tantamount to a prohibition on speech.
In 2010, the Supreme Court's ruling in Citizens United v. Federal Election Commission reversed century-old campaign finance restrictions and enabled corporations and other outside groups to spend unlimited money on elections. This controversial holding overruled both Austin and McConnell (in part) by determining that political speech is protected regardless of a speaker’s corporate identity. This ruling has been criticised for threatening democracy by giving wealthy corporations too much political power.
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Campaign finance laws and limits on contributions
Campaign finance laws are a complex area with different restrictions and requirements depending on the flow of funds. In the US, the Federal Election Commission (FEC) enforces the Federal Election Campaign Act of 1971 (FECA), which limits the amount of money individuals and political organisations can give to a candidate running for federal office. These laws regulate campaign donations, spending and public funding.
The FEC sets campaign contribution limits for individuals and groups and oversees public funding used in presidential elections. There are limits on campaign contributions to candidates for president and Congress, and these include limits that apply to individual donations, as well as contributions by political action committees (PACs) and party committees to candidates. For example, PACs are only permitted to contribute up to $5,000 per year to a candidate per election.
The Bipartisan Campaign Reform Act (BCRA), passed in 2002, sets additional limits on campaign contributions and election spending by corporations. However, in a 5-4 decision, the Court struck down the relevant provisions of the BCRA, explaining that political spending is a form of speech protected by the First Amendment.
In recent decades, the Supreme Court has increasingly ruled that while contributions to candidates' campaigns may be subject to some limits to prevent possible corruption, spending to talk about candidates or issues, when it is not coordinated with those candidates, is free speech protected by the First Amendment. The Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission is a controversial decision that reversed century-old campaign finance restrictions and enabled corporations and other outside groups to spend unlimited money on elections.
Some non-profit organisations are barred from political advocacy to retain their tax-exempt status.
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The Bipartisan Campaign Reform Act (BCRA)
The BCRA was designed to address two main issues: the increased role of soft money in campaign financing, and the proliferation of issue advocacy ads by special interest groups. The Act prohibited national political party committees from raising or spending any funds not subject to federal limits, even for state and local races or issue discussion. It also banned corporations and political action committees (PACs) from mentioning candidates' names in advertisements within sixty days of an election, a provision known as "stand by your ad". This provision resulted in all campaign advertisements including a verbal statement such as "I'm [candidate's name] and I approve this message."
The BCRA also set additional limits on campaign contributions and election spending by corporations, primarily those going directly to the national political parties, often referred to as "soft money". These limits included restrictions on corporate and labour union funding of broadcast ads mentioning a candidate within 30 days of a primary or caucus or 60 days of a general election. The Act also required disclosure by state and local parties of spending on federal election activities, including any soft money used for such activities.
The impact of the BCRA was first felt nationally in the 2004 elections, and it has been the subject of several court rulings, including at the Supreme Court. In 2007, the Supreme Court held that the BCRA's limitations on corporate and labour union funding of broadcast ads were unconstitutional as applied to ads susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate. In 2022, the Court reviewed another BCRA campaign finance restriction in FEC v. Cruz, which limited the amount of post-election funds a campaign committee could use to repay its candidate for a loan.
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Citizens United v. Federal Election Commission
The Supreme Court's ruling in Citizens United v. Federal Election Commission overruled an earlier decision, Austin v. Michigan State Chamber of Commerce, that allowed prohibitions on independent expenditures by corporations. The Court also overruled the part of McConnell v. Federal Election Commission that held that corporations could be banned from making electioneering communications. The Court upheld the reporting and disclaimer requirements for independent expenditures and electioneering communications.
Citizens United recognized the First Amendment rights of corporations as no different from those of individuals. This controversial holding overruled both Austin and McConnell (in part) by determining that political speech is protected regardless of a speaker’s corporate identity. Some saw the decision as a free speech victory, while others cautioned that it threatens democracy by giving wealthy corporations too much political power.
The ruling has led to massive increases in political spending from outside groups, dramatically expanding the already outsized political influence of ultra-wealthy donors, corporations, and special interest groups. In the immediate aftermath of Citizens United, analysts focused much of their attention on how the Supreme Court designated corporate spending on elections as free speech. The creation of super PACs, which can raise and spend unlimited money, has been one of the most significant outcomes of Citizens United. These groups are supposed to be separate from candidates and parties, but they often work in tandem with them.
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The First Amendment and free speech
In a series of rulings, the Supreme Court has increasingly protected money spent on campaigns as free speech. In Buckley v. Valeo (1976), the Court struck down campaign spending limits but upheld contribution limits, determining that campaign expenditures were a type of "speech". This was the first case to explicitly state that the only permissible justification for most limits on money in politics was to prevent "quid pro quo corruption". In 2000, the Court indicated in Nixon v. Shrink Missouri Government PAC that contribution limits would be upheld unless they were so low that they made it impossible to raise sufficient funds for an effective campaign.
However, the Supreme Court's ruling in Citizens United v. Federal Election Commission in 2010 is considered more controversial. It reversed century-old campaign finance restrictions and enabled corporations and other outside groups to spend unlimited money on elections. This ruling held that independent spending could not pose a substantial risk of corruption, assuming that transparency rules would ensure that all spending was fully disclosed. However, in practice, this has led to the creation of super PACs, which can accept unlimited contributions and spend them on political activity, often working in tandem with specific candidates or parties. This has resulted in a significant increase in political spending by outside groups and expanded the influence of ultra-wealthy donors, corporations, and special interest groups.
While the First Amendment generally gives candidates and groups broad rights to free speech during campaigns, courts have also upheld some restrictions on campaign contributions and spending to prevent corruption or its appearance. For example, in McConnell v. Federal Election Commission (2003), the Court upheld a ban on "soft money" contributions to political parties under the Bipartisan Campaign Reform Act (BCRA) of 2002. Additionally, courts have required disclosure of contributions in some cases to limit actual or perceived corruption in politics.
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