Campaign Finance Reform: Unconstitutional?

This essay was originally written for a Mass Communication course on philosophy of journalism. Essay Question(s) of the Week: Do Campaign Finance Limits Violate Free Speech? Should corporations have free speech under the First Amendment in the same way as individuals do?

In 2010, the U.S. Supreme Court overturned part of the federal campaign finance law in a case known as Citizens United v. Federal Election Commission.  According to the Bill of Rights Institution, in the Citizens United v. Federal Election Commission decision, the Court upheld the idea that “free speech was essential in a free society, and that speech was not less protected because the speaker was a corporation, labor union, or other organization.”[1] The Court upheld disclosure requirements for political advertising sponsors, and also kept in place a ban on direct contributions to candidates from corporations and unions.

Campaign Financing and Regulation: Corruption of Marketplace of Ideas?

In a recent How Stuff Works article, Jane McGrath writes:

United States presidential candidates spend hundreds of millions of dollars on a campaign, and the numbers rise with each election. How much a candidate has -- or can get hold of -- can make or break his chances of winning. […] As a result, many people have become concerned with the power that this system can lend to the wealthy. A candidate may promise political favors to people or corporations that contribute to his campaign. To prevent the rich from gaining a corrupt, aristocratic grip over elections, legislators themselves have stepped up and passed laws limiting how people can make financial contributions and how candidates can raise money. [2]

According to McGrath, critics of campaign finance limits argue that money is a “fundamental avenue”2 to communication, and thus finance limits hamper First Amendment rights. McGrath writes that according to critics of regulation, “meddling with how people can financially support candidates, and how much money candidates can receive, limits the speech of both supporters and candidates.”2

What if, however, large resources in money and wealth give some candidates an unfair advantage over candidates with less money and corporate sponsorship? According to this reasoning, delegates already in office may have an advantage over challengers; in essence, the playing field is not fair and level. This is an argument for campaign finance limits. According to McGrath, the debate over campaign finance reform “comes down to equality versus liberty [source: Luckowski].”2


Jane McGrath writes, “[t]here are limits on free speech -- you can't yell ‘fire’ in a crowded movie theater if there's no fire. So, doesn't a campaign's susceptibility to corruption override the right to free speech?”2 In the 1970s, Congress starting passing campaign finance restrictions to minimize bribery and unfair advantages for wealthy candidates.2 In 1975, Congress created the Federal Election Commission (FEC) to administer and enforce the Federal Election Campaign Act (FECA), which “limits the sources and amounts of the contributions used to finance federal elections” and “requires public disclosure of campaign finance information.”[3]

In the pro-regulation argument, the need to control corruption overshadows the minor threats posed to free speech by campaign finance limitations.2 In 2003, Congress found that campaign finance restriction “was justified by the government's legitimate interest in preventing ‘both the actual corruption threatened by large financial contributions and... the appearance of corruption’ that might result from those contributions.”[4] Strong Democrats have criticized recent court decisions to lift campaign finance restrictions on the basis of First Amendment rights. President Obama referred to the 2010 Citizens United v. Federal Election Commission decision as a “major victory for big oil, Wall Street banks, health insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans,”[5] reflecting the idea that unrestricted campaign financing promotes corruption and unfair advantages for wealthy candidates and big corporations.

According to a recent article in Huffington Post, federal aggregate contribution limits, or limits on the total amount any one donor can contribute to all candidates, party committees and PACs, “are a critical tool for combating corruption [… and] are also critical for ensuring competitive elections – a hallmark of our democracy.”[6] According to the Huffington Post article’s author, Jonathan Backer, the Supreme Court should uphold contribution limits. Backer writes, “[w]ithout an aggregate contribution limit, there would be extremely strong incentives for incumbents to solicit single checks totaling more than $1 million. […] members of both parties are forgetting the importance of contribution limits to the health of democracy”6 According to Backer, high contributions also fail to promote healthy competition:

Some argue that high contribution limits are necessary for challengers to quickly stockpile the resources to compete. But in fact, the opposite is true. It’s easy for incumbents to build imposing war chests when contribution limits are high. They have established fundraising networks that already helped them secure office. And special interests are eager to fund incumbent campaigns in order to reinforce their lobbying efforts. […] Without strong opponents, incumbents coast to re-election. Challengers may perform better in states with low contribution limits because, without a competitive advantage, incumbents are forced to engage in “grassroots fundraising,” amassing finances through thousands of small contributions rather than a handful of large ones.6

According to a study conducted by Kahlil Williams, Ciara Torres-Spelliscy and Dr. Thomas Stratmann, “low contribution limits and public financing substantially narrow the gap between incumbents and challengers.”[7] Low contribution limits appear to enhance, not stifle, electoral competition.


In 2010, the Supreme Court concluded that campaign finance restrictions enacted for protection against corruption do not justify the burden placed on free speech by such regulation.2 In 2010, the Supreme Court “struck down a major portion of a 2002 campaign-finance reform law, saying it violates the free-speech right of corporations to engage in public debate of political issues.”[8] According to Justice Anthony Kennedy, “[g]overnment may not suppress political speech on the basis of the speaker’s corporate identity […] No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”[9]

Campaign finance restrictions have been criticized as unconstitutional censorship of free speech. As Bradley Smith writes in a National Affairs article, campaign finance regulation in the past has relied upon appeals to high morality, protection against corruption and the promotion of political equality in elections. However, Smith writes, campaign finance regulation is arguably unconstitutional:

To anyone following the evolution of the campaign-finance reform movement, it should have been obvious that book-banning was a straightforward implication of the McCain-Feingold law (and the long line of statutes and cases that preceded it). The century-old effort to constrict the ways our elections are funded has, from the outset, put itself at odds with our constitutional tradition. It seeks to undermine not only the protections of political expression in the First Amendment, but also the limits on government in the Constitution itself – as well as the understanding of human nature, factions and interests, and political liberty that moved the document's framers.[10]

Smith argues that restrictions on political speech and campaign finance reform emerged from a hostility to federalism, checks and balances and limited government. Smith cites progressive Republican Elihu Root, who said “[t]he idea […] is to prevent ... the great railroad companies, the great insurance companies, the great telephone ­companies, the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests against those of the public.”[11]

However, campaign finance regulation may not, as intended, effectively promote political equality or prevent corruption. According to a 2003 study by MIT scholars Stephen Ansolabehere, James Snyder, Jr., and John de Figueiredo, in three out of four instances “campaign contributions had no statistically significant effects on legislation or had the ‘wrong' sign – suggesting that more contributions lead to less support.”11 Smith also shows evidence that campaign finance reform has not succeeded in promoting political equality as intended. Time to devote to political activity and media coverage are also important factors of inequality in the political arena, and may factor in more significantly when financial contributions are restricted. According to Smith, “[c]ampaign-finance reform, then, actually undermines the effort to ­promote equal access to the political arena.”11 Smith writes:

As campaign-finance reform has failed to achieve its goals, it has also exacted serious costs. Studies have shown that political spending helps voters to learn about candidates, to locate them on the ideological spectrum, and to be better informed about issues and contests. Reducing the amount that may be spent, and constraining the ways it may be used, can thus hurt the quality of political discourse. More important, the laws involve serious restrictions on the exercise of fundamental rights.11

First Amendment Rights of Corporations:

I agree with First Amendment augments against campaign finance reform. According to Smith, when campaign finance reform touched upon book-banning over the course of the Citizens United v. Federal Election Commission case, it struck a ‘visceral’ chord in Americans and the Supreme Court. I agree with Smith that, setting aside the moral arguments for protecting against corruption with campaign finance regulation, “[r]estrictions on campaign contributions and spending affect core First Amendment freedoms of speech, press, and assembly.”[12] In 2010, the Supreme Court upheld the idea that limiting political spending limits speech “by restricting citizens' ability to deliver their political messages.”12 Smith provides the following analogy:

Those who doubt that basic constitutional rights are at stake should imagine how they would react if the Supreme Court were to interpret the free exercise clause as allowing the faithful to hold their religious beliefs, but not to spend money to rent a church hall, purchase hymnals, or engage in church missions.12

I believe that it is dangerous to pursue moral standards through government regulation. While proponents of campaign finance reform have beneficial ends in mind, the regulatory means to those ends may place unconstitutional restrictions on free speech while not guaranteeing equality and freedom from corruption. As Smith argues, I believe that in a complex system such as the political arena, factors other than money can lead to inequality of political opportunity, and may even become more prominent when the financial factor is limited. I believe that campaign finance regulation should be minimal. While moderate contribution limits might be instrumental in promoting healthy competition, federal regulation of campaign financing should be minimal to protect First Amendment rights. Also, free speech rights should not depend on whether we are considering individuals or corporations.