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U.S. ELECTION CAMPAIGNS

Recent Titles in Documentary and Reference Guides Terrorism: A Documentary and Reference Guide Vincent Burns and Kate Dempsey Peterson Abortion: A Documentary and Reference Guide Melody Rose Civil Liberties and the State: A Documentary and Reference Guide Christopher Peter Latimer Culture Wars in America: A Documentary and Reference Guide Glenn H. Utter Evolution and Creationism: A Documentary and Reference Guide Christian C. Young and Mark A. Largent Gun Control: A Documentary and Reference Guide Robert J. Spitzer Islamism: A Documentary and Reference Guide John Calvert The Patriot Act: A Documentary and Reference Guide Herbert N. Foerstel The Politics of Sexuality: A Documentary and Reference Guide Raymond A. Smith

U.S. ELECTION CAMPAIGNS A Documentary and Reference Guide

Thomas J. Baldino and Kyle L. Kreider

Documentary and Reference Guides

Copyright 2011 by Thomas J. Baldino and Kyle L. Kreider All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data U.S. election campaigns : a documentary and reference guide / Thomas J. Baldino and Kyle L. Kreider. p. cm.—(Documentary and reference guides) Includes bibliographical references and index. ISBN 978-0-313-35304-8 (hbk. : alk. paper) ISBN 978-0-313-35305-5 (ebook) 1. Political campaigns—United States—History—Sources. 2. Election law—United States—History— Sources. 3. Political campaigns—United States—History. 4. Election law—United States— History. I. Baldino, Thomas J. (Thomas Joseph) II. Kreider, Kyle L. JK2281.U34 2011 324.973—dc22 2011011234 ISBN: 978-0-313-35304-8 EISBN: 978-0-313-35305-5 15

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This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. Praeger An Imprint of ABC-CLIO, LLC ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper Manufactured in the United States of America

To Sandy, the love of my life. —Tom And To Kathryn, who taught me about life. —Kyle

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CONTENTS List of Documents and Sidebars

ix

Reader’s Guide to Related Documents and Sidebars

xi

Foreword by Larry J. Sabato

xv

Preface

xix

Acknowledgments

xxi

Introduction

xxiii

Chronology

xxvii

1. The 19th Century

1

2. 1900 to 1939

41

3. 1940 to 1969

91

4. 1970 to 1999

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5. 2000 to 2010

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Afterword

333

Selected Resources

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Index

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LIST OF DOCUMENTS AND SIDEBARS Chapter 1: The 19th Century

The Federal Corrupt Practices Act of 1925

The Boston Gazette editorial satirizing the “Gerrymander,” 1812

The Radio Act of 1927

Inaugural Address of President Andrew Jackson, March 4, 1829

The Federal Communications Act of 1934

State of the Union Address of President Andrew Jackson, December 8, 1829

Burroughs and Cannon v. United States, 290 U.S. 534 (1934) Sidebar: The Federal Corrupt Practices Act (the Publicity Act) of 1910, 36 Stat. 822 Sidebar: The Radio Act of 1912, PL 62-264

Inaugural Address of President William Henry Harrison, March 4, 1841

Sidebar: The Teapot Dome Scandal

Circular Letter from Daniel Webster, Secretary of State, to Thomas Ewing, Secretary of the Treasury, March 20, 1841

Sidebar: The Federal Courts and the Radio Act of 1927

Naval Appropriations Act of 1867

Sidebar: Political Parties, Radical Ideas, and Ballot Access Sidebar: The Public Utility Holding Company Act of 1935, PL 74-333 49 Stat. 838

President Rutherford B. Hayes’s Executive Order on Assessment and the Political Activities of Federal Employees, June 22, 1877

Chapter 3: 1940 to 1969

Ex Parte Curtis, 106 U.S. 371 (1882)

United States v. Classic, 313 U.S. 299 (1941)

The Civil Service (Pendleton) Act, 1883

The Labor-Management Relations (Taft-Hartley) Act of 1947

Sidebar: The Assassination of President Garﬁeld, July 2, 1881, and the Passage of the Civil Service Act

The Fairness Doctrine, 1949

Sidebar: The Omaha Platform of the People’s Party

The 1940 Amendments to the Hatch Act of 1939

United States v. United Auto Workers, 352 U.S. 567 (1957) Williams v. Rhodes, 393 U.S. 23 (1968)

Chapter 2: 1900 to 1939

Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969)

An Act to Prohibit Corporations from Making Money Contributions in Connection with Political Elections (the Tillman Act), 1907

Sidebar: An Act to Prevent Pernicious Political Activities (The Hatch Act of 1939), 53 Stat. 1147

The Federal Corrupt Practices Act of 1911 United States v. U.S. Brewers’ Association, 239 F. 163 (1916) United States v. Gradwell, 243 U.S. 476 (1917)

Sidebar: In the Matter of the Mayﬂower Broadcasting Corporation, Boston, Massachusetts, for Construction Permit, 8 F.C.C. 333, 1938 Sidebar: The War Labor Disputes (Smith-Connally) Act of 1943, PL 78-89 57 Stat. 144

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List of Documents and Sidebars

Sidebar: Labor Unions, Corporations, and Campaign Financing in the 1940s

Sidebar: A State Cannot Require a Closed Primary Against a Party’s Wishes

Sidebar: Amendments of 1959 to the Federal Communications Act of 1934, 47 U.S.C. Section 315

Sidebar: The 1993 Hatch Act Reform Amendments, PL 103-94

Sidebar: The Presidential Election Campaign Fund Act of 1966

Sidebar: 1996 Presidential Campaign Scandal and Its Impact on Campaign Rules Sidebar: Minor Party Access to Debates

Chapter 4: 1970 to 1999 Jenness v. Fortson, 403 U.S. 431 (1971)

Chapter 5: 2000 to 2010

Federal Election Campaign Act (FECA) of 1971, as amended in 1974, 1976, and 1979

California Democratic Party v. Jones, 530 U.S. 567 (2000)

White v. Regester, 412 U.S. 755 (1973)

McConnell v. Federal Election Commission, 540 U.S. 93 (2003)

Cousins v. Wigoda, 419 U.S. 477 (1975) Buckley v. Valeo, 424 U.S. 1 (1976) First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) Anderson v. Celebrezze, 460 U.S. 780 (1983)

The Bipartisan Campaign Reform Act of 2002

The Honest Leadership and Open Government Act, Section 204, 2007 Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010)

Munro v. Socialist Workers Party, 479 U.S. 189 (1986)

Internal Revenue Tax Code, Title 26, Sections 501(c) and 527, 2010

Davis v. Bandemer, 478 U.S. 109 (1986)

Sidebar: Free Speech and Judicial Elections

Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990)

Sidebar: Political Parties and Campaign Finance

Shaw v. Reno, 509 U.S. 630 (1993)

Sidebar: Supreme Court Rulings on State Campaign Finance Schemes

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)

Sidebar: States Differ Greatly in Their Regulations of Campaign Finance

Sidebar: The Political Broadcast Act of 1970, S. 3637 Sidebar: The Revenue Act of 1971, Titles VII and VIII, PL 92-178

Sidebar: The Democracy Is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act, 111th Congress H.R. 5175 and S. 3628

Sidebar: Watergate’s Impact on Campaign Finance Reform

Sidebar: The Origin and Signiﬁcance of Super PACs

READER’S GUIDE TO RELATED DOCUMENTS AND SIDEBARS Campaign Communications Statutes Sidebar: The Radio Act of 1912, PL 62-264, Chapter 2 The Radio Act of 1927, Chapter 2 The Federal Communications Act of 1934, Chapter 2 Sidebar: Amendments of 1959 to the Federal Communications Act of 1934, 47 U.S.C. Section 315, Chapter 3 Sidebar: The Political Broadcast Act of 1970, Chapter 4 Federal Election Campaign Act (FECA) of 1971, as amended in 1974, 1976, and 1979, Chapter 4 Sidebar: Minor Party Access to Debates, Chapter 4

The Labor-Management Relations (Taft-Hartley) Act of 1947, Chapter 3 Sidebar: The Presidential Election Campaign Fund Act of 1966, Chapter 3 Sidebar: The Revenue Act of 1971, Titles VII and VIII, PL 92-178, Chapter 4 Federal Election Campaign Act (FECA) of 1971, as amended in 1974, 1976, and 1979, Chapter 4 The Bipartisan Campaign Reform Act of 2002, Chapter 5 The Honest Leadership and Open Government Act, Section 204, 2007, Chapter 5

The Bipartisan Campaign Reform Act of 2002, Chapter 5

Internal Revenue Tax Code, Title 26, Sections 501(c) and 527, 2010, Chapter 5

Campaign Finance Statutes and Regulations

Sidebar: States Differ Greatly in Their Regulations of Campaign Finance, Chapter 5

Naval Appropriations Act of 1867, Chapter 1 An Act to Prohibit Corporations from Making Money Contributions in Connection with Political Elections(the Tillman Act), 1907, Chapter 2 Sidebar: The Federal Corrupt Practices Act (The Publicity Act) of 1910, 36 Stat. 822, Chapter 2

Sidebar: The Democracy Is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act, Chapter 5 Corrupt Campaign Practices and Scandals

The Federal Corrupt Practices Act of 1911, Chapter 2

Sidebar: The Assassination of President Garﬁeld, July 2, 1881, and the Passage of the Civil Service Act, Chapter 1

Sidebar: The Radio Act of 1912, PL 62-264, Chapter 2

Sidebar: The Teapot Dome Scandal, Chapter 2

The Federal Corrupt Practices Act of 1925, Chapter 2

Sidebar: Watergate’s Impact on Campaign Finance Reform, Chapter 4

Sidebar: The Public Utility Holding Company Act of 1935, PL 74-333 49 Stat. 838, Chapter 2 Sidebar: An Act to Prevent Pernicious Political Activities (The Hatch Act of 1939), 53 Stat. 1147, Chapter 3

Sidebar: 1996 Presidential Campaign Scandal and Its Impact on Campaign Rules, Chapter 4

The 1940 Amendments to the Hatch Act of 1939, Chapter 3

Court Decisions: Ballot Access and Minor Parties

Sidebar: The War Labor Disputes (Smith-Connally) Act of 1943, PL 78-89 57 Stat. 144, Chapter 3

Sidebar: Political Parties, Radical Ideas, and Ballot Access, Chapter 2

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Reader’s Guide to Related Documents and Sidebars

Williams v. Rhodes, 393 U.S. 23 (1968), Chapter 3

Anderson v. Celebrezze, 460 U.S. 780 (1983), Chapter 4

Jenness v. Fortson, 03 U.S. 431 (1971), Chapter 4 Anderson v. Celebrezze, 460 U.S. 780 (1983), Chapter 4

Munro v. Socialist Workers Party, 479 U.S. 189 (1986), Chapter 4

Munro v. Socialist Workers Party, 479 U.S. 189 (1986), Chapter 4

California Democratic Party v. Jones, 530 U.S. 567 (2000), Chapter 5

Court Decisions: Broadcast Regulations

Court Decisions: Party Rights

Sidebar: The Federal Courts and the Radio Act of 1927, Chapter 2

United States v. Classic, 313 U.S. 299 (1941), Chapter 3

Burroughs and Cannon v. United States, 290 U.S. 534 (1934), Chapter 2

Anderson v. Celebrezze, 460 U.S. 780 (1983), Chapter 4

Red Lion Broadcasting Co. v. Federal Communication Commission, 395 U.S. 367 (1969), Chapter 3

Cousins v. Wigoda, 419 U.S. 477 (1975), Chapter 4 Sidebar: A State Cannot Require a Closed Primary Against a Party’s Wishes, Chapter 4

Sidebar: Minor Party Access to Debates, Chapter 4

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), Chapter 4

Sidebar: Free Speech and Judicial Elections, Chapter 5

Sidebar: Minor Party Access to Debates, Chapter 4

Court Decisions: Campaign Finance

California Democratic Party v. Jones, 530 U.S. 567 (2000), Chapter 5

United States v. U.S. Brewers’ Association, 239 F. 163 (1916), Chapter 2

Sidebar: Political Parties and Campaign Finance, Chapter 5

United States v. United Auto Workers, 352 U.S. 567 (1957), Chapter 3

Sidebar: Supreme Court Rulings on State Campaign Finance Schemes, Chapter 5

Sidebar: Labor Unions, Corporations, and Campaign Financing in the 1940s, Chapter 3

Court Decisions: Redistricting

Buckley v. Valeo, 424 U.S. 1 (1976), Chapter 4

Davis v. Bandemer, 478 U.S. 109 (1986), Chapter 4

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), Chapter 4

Shaw v. Reno, 509 U.S. 630 (1993), Chapter 4

Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990), Chapter 4 McConnell v. Federal Election Commission, 540 U.S. 93 (2003), Chapter 5 Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Chapter 5

White v. Regester, 412 U.S. 755 (1973), Chapter 4 Executive Orders President Rutherford B. Hayes’ Executive Order on Assessment and the Political Activities of Federal Employees, June 22, 1877, Chapter 1

Court Decisions—Corporate Rights

Circular Letter from Daniel Webster, Secretary of State, to Thomas Ewing, Secretary of the Treasury, March 20, 1841, Chapter 1

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), Chapter 4

FCC Broadcast Regulations

Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Chapter 5

Sidebar: In the Matter of the Mayﬂower Broadcasting Corporation, Boston, Massachusetts, for Construction Permit, 8 F.C.C. 333, 1938, Chapter 3

Court Decisions—Elections

The Fairness Doctrine, 1949, Chapter 3

United States v. Gradwell, 243 U.S. 476 (1917), Chapter 2

Sidebar: Amendments of 1959 to the Federal Communications Act of 1934, 47 U.S.C. Section 315, Chapter 3

United States v. Classic, 313 U.S. 299 (1941), Chapter 3 Williams v. Rhodes, 393 U.S. 23 (1968), Chapter 3 Jenness v. Fortson, 403 U.S. 431 (1971), Chapter 4 Cousins v. Wigoda, 419 U.S. 477 (1975), Chapter 4

Red Lion Broadcasting Co. v. Federal Communication Commission, 395 U.S. 367 (1969), Chapter 3 Sidebar: The Political Broadcast Act of 1970, S. 3637, Chapter 4

Reader’s Guide to Related Documents and Sidebars

xiii

Sidebar: The Origin and Signiﬁcance of Super PACs, Chapter 5

Circular Letter from Daniel Webster, Secretary of State, to Thomas Ewing, Secretary of the Treasury, March 20, 1841, Chapter 1

Patronage

The Civil Service (Pendleton) Act, 1883, Chapter 1

Inaugural Address of President Andrew Jackson, March 4, 1829, Chapter 1

Sidebar: The Omaha Platform of the People’s Party, Chapter 1

State of the Union Address of President Andrew Jackson, December 8, 1829, Chapter 1

Redistricting

Inaugural Address of President William Henry Harrison, March 4, 1841, Chapter 1

The Boston Gazette editorial satirizing the “Gerrymander,” 1812, Chapter 1

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FOREWORD In Abraham Lincoln’s day, campaigning was almost as simple as his famous dictum, “Find ’em and vote ’em.” There were very few codiﬁed rules of the game, and the standard for campaign ﬁnancing and election technique could be summed up as “anything goes.” Campaigning in the United States has come a long way since then. Today we have one of the most complex systems of electioneering in the world, and it takes a great deal of careful study to understand it. Fortunately, with this book, Thomas Baldino and Kyle Kreider have made it much simpler for a student of politics to comprehend the superstructure of U.S. politics. This extraordinarily useful volume takes us through the evolution of campaign regulation from the 19th century forward. The original documents are provided and skillfully parsed for the reader. Too few authors trust the reader with the full text of the laws and orders, preferring merely to interpret them for everyone else, sometimes accurately and sometimes not. Here, the reader can enjoy both the texts and the translations. Best of all, the interpretations are written in English, not political-speak. Baldino and Kreider tell the tale truthfully, one bit and piece at a time. Just as the government had a laissez-faire policy toward the economy and business generally until the 1900s, so too did it have a free-wheeling approach to politics. Parties and candidates reported to no one, raised and spent money as they pleased, and accepted sizable cash contributions from individuals and groups with pressing legislative interests. Every now and then in the nation’s ﬁrst century, a peep was heard from the executive branch or Congress on the subject: •

In his inaugural address William Henry Harrison denounced the patronage system of his predecessors, Andrew Jackson and Martin Van Buren. During Harrison’s one-month presidency in 1841, his secretary of state, Daniel Webster, issued a directive that sought to reverse what the Whigs considered sordid practices by the Jacksonian Democrats that enhanced the executive branch of government at the expense of the Whig-preferred legislative branch. xv

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Foreword

•

•

President Rutherford B. Hayes, who won a highly disputed 1876 election and was called “His Fraudulency” by opponents for the next four years, tried to project an image of probity in ofﬁce and sought to limit some overt political actions by federal employees. The assassination of Hayes’s successor, President James A. Garﬁeld, by a spurned ofﬁce seeker in 1881 produced the ﬁrst comprehensive reform of the spoils system. The Pendleton Act of 1883 instituted federal civil service exams and ended automatic guarantees that the presidential party victors would grab all government jobs.

Yet only with the turn of the 20th century did serious campaign reform become a national cause. The Progressive movement, which took ﬂower in many states beginning in the late 1890s, found a champion in President Theodore Roosevelt. Under his administration, the 1907 Tillman Act was passed, prohibiting corporations and national banks from donating money to federal campaigns. As with many well-intentioned efforts over the decades, the act had escape clauses. The Corrupt Practices Acts of 1911 and 1925 sought to require disclosure of campaign contributions and set spending limits for congressional campaigns, but here too the rules were so full of loopholes that clever politicians were able to drive a Brink’s truck ﬁlled with cash through their provisions. Supreme Court decisions sometimes opened new loopholes too. Scandals such as Teapot Dome during the presidential administration of the inept Warren G. Harding (1921–1923) created public and press demand for serious reform, but that rarely produced effective congressional legislation. Congressmen, always ﬁxated on reelection, knew which side of their bread was buttered, and by whom. Sometimes substantial reforms managed to pass, including the Hatch Act of 1939 (banning overt partisan activity by many federal employees) and the Taft-Hartley Act of 1947 (mainly aimed at reducing labor union power, but containing various campaign restrictions as well). Yet these acts dealt with small pieces of the overall election process. Comprehensive reform would have to wait for another day. That day came in the 1970s, and the giant Watergate affair provided the impetus. Watergate is mainly remembered for having forced the resignation of President Richard Nixon, but the octopus-like scandal had many tentacles. During the lengthy congressional investigation of Nixon’s 1972 reelection campaign, revelations about milliondollar cash payoffs and big unreported checks ﬁlled the newspapers. The American public was outraged and insisted that, this time, Congress enact effective measures. Surprising the cynics, Congress did just that. Building on a skeletal 1971 Federal Election Campaign Act passed before the pieces of Watergate became public knowledge, the federal legislature created an entirely new superstructure for American elections. The primary amending law was passed in 1974, with vital additions in 1976 and 1979. Even the 1971 act made a considerable difference by requiring genuine disclosure of campaign contributions. In 1968, when disclosure was just a pipedream, all Senate and House candidates taken together claimed they had spent a mere $8.5 million. But in 1972, with the disclosure provisions in full force, the same group of candidates reported they had expended $88.9 million—a tenfold increase.

Foreword

The follow-up legislation, given impetus by Watergate’s outcome, accomplished much more. Congress established a governing Federal Election Commission, set contribution limits on gifts to candidates and parties, and regulated political action committees run by corporations, labor unions, and other groups. At the presidential level, public ﬁnancing of campaigns became a reality, beginning with the 1976 contest between Republican President Gerald Ford and Democrat Jimmy Carter (who ousted Ford). Major candidates could get millions of dollars in matching funds for the party primaries—matching public funds to private, small, individual contributions. In the general election, the Democratic and Republican candidates received tens of millions to spend, all from the federal treasury, eliminating most of the inﬂuence wielded by big donors. Over time, this once-successful scheme fell apart, as candidates found ways (usually involving the Internet) to raise far more cash privately than their rivals could possibly get from the public ﬁnancing setup. A bigger war chest means a greater chance of winning, obviously, so it was inevitable that by 2008 a candidate (Democrat Barack Obama) would raise $750 million in private money, refusing public funds for both primary and general election campaigns and outspending his losing rival, Republican John McCain, by a margin of about two and a half to one. As this revealing volume demonstrates again and again, there is signiﬁcant and unavoidable interplay between campaign legislation passed by Congress and judicial decisions rendered by the Supreme Court. In cases such as Buckley v. Valeo, 424 U.S. 1 (1976) the Court tried to marry citizens’ First Amendment free speech and political association rights with the need to prevent corruption. Buckley forced Congress to try to do so again and again, with mixed success. The legislature also attempted to strengthen the health of political parties with a 1979 law that permitted parties to raise and spend substantial sums on behalf of their candidates for get-out-the-vote activities and the like. Yet this widely praised reform eventually produced a torrent of so-called soft money—gargantuan individual and group donations collected at the national level—that ﬂooded the system and defeated attempts to reduce skyrocketing campaign costs. In turn, this led to yet another major law, the 2002 Bipartisan Campaign Reform Act—which has also had unintended consequences and been overturned in part by the Supreme Court. And so it goes, as Baldino and Kreider illustrate. No democracy will ever devise a perfect election system. In large part, this is because the ﬁne minds of ambitious men and women drawn to politics as candidates and consultants will always ﬁnd a way to stretch and bend the rules. The search for the winning edge is endless. So too must be the legal and legislative efforts to keep the participants within reasonable bounds. Deep down, each contender for public ofﬁce probably shares the fear of thrice-defeated presidential contender Adlai Stevenson. On the campaign trail in his second unsuccessful run for the White House (1956), a woman called out to Stevenson, “You have the vote of every thinking person!” Stevenson replied, “That’s not enough, madam, we need a majority.” In a more thoughtful moment, though, Stevenson spoke a deeper truth that serves as a cautionary tale for candidates and the rest of us. He observed, “The hardest thing about any political campaign is how to win without proving that you are unworthy of winning.”

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Foreword

The purpose of all the electioneering laws and guidelines in this volume is to produce worthy ofﬁceholders. The quality of American government over the centuries is a reﬂection of the degree to which these laws have succeeded or failed. Larry J. Sabato Director, Center for Politics University of Virginia Charlottesville, Virginia

PREFACE We have organized the book’s documents chronologically to better understand the evolution of and rationale behind America’s campaign laws, regulations, and court interpretation of the laws and to more easily detect trends and themes that emerge over time. Chapter 1 contains documents from the 19th century, which witnessed the emergence of political parties and, with them, the origins of modern campaign practices. Chapter 2 encompasses the period from 1900 to 1939, during which a new form of mass media, radio, was introduced, which parties and candidates quickly adopted for elections. Public reaction to the Teapot Dome scandal as well as state legislative investigations into questionable campaign ﬁnancing practices coincided with Congress’s efforts to regulate campaign contributions by banning corporate contributions and requiring the disclosure of donors. The Supreme Court’s interpretation of the statutes during this time generally upheld the legislation’s constitutionality. During the period 1940 to 1969, treated in Chapter 3, yet another new mass medium appeared—television—adding fuel to escalating campaign costs and requiring even greater sums of money to wage successful campaigns. Chapter 4 covers 1970 to 1999, one of the most tumultuous periods for American campaign reform. Another major scandal, Watergate, gave lawmakers, especially Democrats, incentive to pass the Federal Election Campaign Act in 1971 and then amend it signiﬁcantly several times in subsequent years, once following the landmark Supreme Court decision Buckley v. Valeo (1976). Political action committees (PACs) surfaced as key players in campaigns, while “soft” (unregulated) money became as important to parties as “hard” (regulated) money. The ﬁnal chapter includes documents from 2000 to 2010, a period that began with the Supreme Court’s continued deference to legislative judgments but concluded with the Supreme Court playing a major role in undoing congressional efforts to stem the ﬂow of regulated “soft” money in elections and with the emergence of Internal Revenue Code section 527 and 501(c) groups and of super PACs as campaign forces. Documents are presented in chronological order within each chapter. Document entries open with basic information about the document: its title, date of origin, and a brief statement explaining the document’s importance. Following the document’s

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original text, an essay discusses how and why the document came to be, explains its language and intent, and analyzes its signiﬁcance. Among the more than 60 documents are federal statutes, executive orders, Supreme Court decisions, opinions from the Federal Election Commission, and sections of the Internal Revenue Code. Sidebars, such as the “Did You Know?” boxes, provide additional information about documents and court decisions that complement one or more documents. Tables, charts, and graphs also offer supplemental information. Finally, illustrations and political cartoons attempt to give greater depth and context to the documents and the times in which they appeared.

ACKNOWLEDGMENTS It would have been exceedingly more difﬁcult for us to complete this book had it not been for the wisdom, guidance, patience, faith, or diligence of a small group of people to whom we will be forever grateful. Whether locating documents, researching bits of information, reading, editing, and commenting on entries or offering simple words of encouragement, this book beneﬁted immensely from their assistance. We, however, bear sole responsibility for its contents and whatever weaknesses it may have. Our editor, Veronica “Sandy” Towers, was once again our captain during this voyage. Having steered us through our ﬁrst book project with ABC-CLIO, she charted our course through various storms with optimism, good humor, and steadfastness that helped us maintain forward momentum and stay focused on the book’s completion. We were most fortunate to have four Wilkes University undergraduate research assistants over two summers. Adam Szumski and Katie Nealon diligently tracked down documents and images, bits of obscure information, and fact-checked items. Their enthusiasm for the project was at least as great as ours, and we thoroughly enjoyed their participation. Jeremy LaPorte and Sarah Seman joined the project the following summer, compiling and organizing early drafts of tables and charts, the chronology, and other material. Their thorough and timely work as well as their good humor speeded the project’s completion. Guy Jensen and his colleagues at the Legislative Ofﬁce for Research Liaison of the Pennsylvania House of Representatives were extremely generous with their time in tracking down numerous historical documents that were not immediately available through our library. John Stachacz, dean of Library Services at Wilkes University, and his excellent staff provided valuable assistance in locating key documents and acquiring books and articles necessary for our research. Our friends and colleagues in the social sciences at Wilkes—Mike Garr, Jim Merryman, Andy Miller, Rob Seeley, Ebonie Stringer, and Bob Tuttle—were once again ready to offer advice and encouragement, especially on difﬁcult days. Cheryl Feichter, secretary to the division, graciously transcribed several documents into electronic form, which saved us much time. xxi

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Last but not least, we thank our wives: Sandy and Susanne. For a second time they tolerated our long days at the ofﬁce and distracted behavior at home, and they listened to our frustrations over many months. This book would not have seen the light of day without their love, patience, and support.

INTRODUCTION Campaigns and elections are critical elements in America’s political system because our Constitution’s Framers opted to create a “republican democracy” rather than a direct one. In a direct democracy, citizens are expected to participate personally in deciding matters of public policy. But the Framers were well aware of the impracticality of such a system in a country as expansive as the United States (even with just 13 states) and with such a relatively large population. By establishing a republican, or representative, democracy, the Framers succeeded in founding the new political system on the people’s will (popular sovereignty) while overcoming the physical limitations of a large geographic area and population. Representative democracies require elections so that citizens can select individuals to represent them in government, whether to executive ofﬁces such as the presidency, governorships, and mayoralties or to legislative bodies such as Congress, state legislatures, and councils (city, county, township, or borough). A number of states also elect their judges. While the Constitution vested in the states authority to conduct elections, the document reﬂected the Framers’ wariness of the malleability of public opinion (particularly by smooth-talking candidates, or demagogues) and their suspicions of factions, or special interest groups, including parties, that might weaken the democratic impulse to achieve the common good by working instead to fulﬁll their particular needs. See the Federalist Papers Nos. 10 and 51 for Madison’s discussion of these subjects. For these reasons, in the opinion of many scholars, the Framers created a House of Representatives, whose members would be electorally connected to a local constituency, provided for the state legislative appointment of senators, and created an Electoral College to select the president in order to prevent the formation of political parties and nationwide special interest groups. Despite their misgivings, interest groups appeared very early in U.S. history, followed by political parties. The ﬁrst Congress and the states empowered the electorate and encouraged the free and open dissemination of ideas as well as the freedom to associate with like-minded people when the First Amendment was ratiﬁed. Party formation, therefore, was inevitable, and parties became the vehicles by which candidates were recruited for ofﬁce and citizens were mobilized to vote. Parties presented xxiii

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voters with relatively clear policy choices in their platforms and communicated their policies during campaigns. While parties formed, certain structural conditions contributed to our two-party system. In the founding period and into the early 19th century, many states used their constitutional authority over elections to create single-member congressional districts that diminished the ability of minor parties to form, win multiple ofﬁces across the country, or even win in successive elections. A permanent structural disadvantage for minor parties was created in 1842, when Congress required singlemember congressional districts. Likewise, an overwhelming majority of states—now 48 of 50—disperse their Electoral College votes on a winner-take-all basis, another impediment to minor party formation and success. Our objective is to trace the development of campaign rules and regulations that affect candidates, parties, and interest groups that intend to inﬂuence election outcomes since the beginning of the 19th century. In an earlier work, Of the People, By the People, For the People: A Documentary Record of Voting Rights and Electoral Reform, we examined the history of elections from the perspective of the voter. In this endeavor, which we see as a complementary volume, we follow election history from the viewpoint of the candidates, parties, and interest groups. We consider the following topics important to election campaigns: redistricting practices, because how and why electoral district boundaries are drawn shape election results; ballot access rules and their interpretation by the courts, because they affect what candidates and parties appear on ballots; federal and state legislation regulating party conventions and primaries, because the methods and reasons behind the parties’ candidate selection mechanisms directly affect voters’ choices and ultimately election results; campaign fundraising, spending, and disclosure regulations, because as Jesse Unruh said in 1966, “money is the mother’s milk of politics” and limits on campaign donations or expenditures impact how campaigns are conducted; and campaign communications rules, because restrictions on campaign ads by candidates, parties, or interest groups impinge on the information voters receive and could alter an election’s result. While we do not offer a thesis or test a hypothesis in this book, we identiﬁed several themes that emerged during the course of our research. (Anyone interested in exploring research that tests various theoretical perspectives should see Corrado 1997; Hohenstein 2007; LaRaja 2008; Mutch 1988; and Zelizer 2002.) First, all campaign regulations create winners and losers. Establishing the rules of the game for players in elections may appear neutral, but in reality, some players beneﬁt while others are hindered. Indeed, campaign reformers’ motivations are often transparent, as was the case with underfunded Democrats in the 1960s pushing for public ﬁnancing of elections, not out of idealism, but because they faced a well-ﬁnanced GOP. Second, even the most well-intentioned reform has unintended consequences. For example, the 1974 amendments to the Federal Election Campaign Act sought to limit how much individuals, parties, and groups could contribute to candidates and the parties, but corporate trade groups, unions, and interest groups discovered a loophole in the statute that helped PACs proliferate and become enormously signiﬁcant actors in campaigns. Likewise, the 2002 Bipartisan Campaign Reform Act, which attempted to restrict soft money’s role in election, inadvertently led to other avenues for unregulated money to enter campaigns. Third, there is an implicit assumption in American politics that money has a corrosive or corrupting effect on candidates and ultimately on public policy. When

Introduction

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donations are accepted by candidates, many people assume that the candidate, once elected, will act in the interest of the contributor rather than the public. The larger the contribution, it is believed, the more indebted the candidate becomes to the donor. While there have been instances of wealthy contributors exerting undue inﬂuence over candidates, the vast majority of elected ofﬁcials receiving campaign donations have faithfully served their constituents. Yet the public’s perception remains that money corrupts politicians. Consequently, efforts to regulate money’s role in American politics have been ongoing since the 19th century. This leads to a fourth theme: efforts to regulate campaign money are complicated by human nature and the First Amendment. Candidates and campaign contributors always manage to ﬁnd each other; or as others have described it, money is like water in that it seeps through cracks and ﬁnds its own level, which, in the case of campaigns, is in the pockets of candidates and parties. Plug one campaign funding source and another appears. Every attempt to restrict campaign contributions has not been completely successful. The inability to attain total success is at least partially attributable to the Supreme Court ruling in Buckley v. Valeo (1976), which said that the First Amendment’s guarantee of free speech extends to a person’s ability to spend money in order to “speak.” The decision effectively made it unconstitutional to limit spending by private individuals and groups during elections as well as candidates spending from their private accounts. We hope that readers ﬁnd these documents useful and our analyses enlightening. Ideally, readers will have fresh insights about campaigns and gain a better understanding of contemporary electoral politics.

FURTHER READING Corrado, Anthony. 1997. “Money and Politics: A History of Federal Campaign Finance Law.” In Campaign Finance Reform: A Sourcebook, ed. Anthony Corrado, Thomas E Mann, Daniel R. Ortiz, and Trevor Potter. Washington, DC: Brookings Institution Press. Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. LaRaja, Raymond. 2008. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press. Mutch, Robert E. 1988. Campaigns, Congress and the Courts: The Making of Federal Campaign Finance Law. New York: Praeger. Zelizer, Julian E. 2002. “Seeds of Cynicism: The Struggle over Campaign Finance, 1956– 1974.” Journal of Policy History 14:73–111.

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CHRONOLOGY March 4, 1809—James Madison inaugurated as fourth president. February 11, 1812—The Massachusetts Redistricting Act of 1812 passed, which was an early example of politically motivated redistricting, later known as gerrymandering. March 26, 1812—The Boston Gazette editorial satirizing the “Gerrymander” appears. June 18, 1812—War of 1812 between United States and Great Britain begins. March 4, 1829—Inaugural Address of President Andrew Jackson delivered in which the president extols the virtues of patronage and the spoils system. December 8, 1829—State of the Union Address of President Andrew Jackson delivered in which the president defends his use of the spoils system. March 4, 1841—Inaugural Address of President William Henry Harrison delivered in which the president criticizes the spoils system and assessment. March 20, 1841—Circular Letter from Daniel Webster, secretary of state, to Thomas Ewing, secretary of the Treasury, issued in which government employees are forbidden to engage in assessment. November 6, 1860—Abraham Lincoln elected as 16th president. 1861–1865—American Civil War. March 2, 1867—Naval Appropriations Act of 1867 passed in which assessment in certain federal departments is made illegal. 1877—Reconstruction ends, as Union troops and military tribunals are withdrawn from the states of the Confederacy. June 22, 1877—President Rutherford B. Hayes issued Executive Order on Assessment and the Political Activities of Federal Employees in which assessment is again made an illegal practice. November 2, 1880—James Garﬁeld elected as 20th president. July 2, 1881—President James Garﬁeld assassinated. xxvii

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Chronology

December 18, 1882—U.S. Supreme Court decision in Ex Parte Curtis, which upheld the Anti-Assessment Act of 1876. January 16, 1883—The Civil Service (Pendleton) Act passed. It marked the end of the federal patronage system and beginning of merit hiring of civil service employees. 1890—State publicity (disclosure) laws passed in Massachusetts. The laws required that candidates reveal the names of their donors and the amount of their contributions. 1891—State publicity (disclosure) laws passed in Michigan. 1892—State publicity (disclosure) laws passed in New York. July 4, 1892—The Omaha Platform of the People’s (or Populist) Party calls for an end to patronage. 1893—Major ﬁnancial crisis known as the Panic of 1893. November 3, 1896—William McKinley elected as 25th president. 1897—State publicity (disclosure) laws passed in Nebraska. April 19, 1898—Congress votes to go to war with Spain, beginning the SpanishAmerican War. September 6, 1901—President McKinley assassinated, dying on September 14. Vice President Theodore Roosevelt assumed the presidency the same day. January 26, 1907—An Act to Prohibit Corporations from Making Money Contributions in Connection with Political Elections, also known as the Tillman Act, passed. It banned corporate contributions directly from their treasuries to candidates and parties. August 13, 1912—The Radio Act of 1912 passed, which established federal regulation of radio frequencies. November 5, 1912—Woodrow Wilson elected as 28th president. December 23, 1916—United States v. U.S. Brewers’ Association, 239 F. 163 (1916), a district court ruling that upheld the Tillman Act of 1907. April 6, 1917—United States enters World War I. April 9, 1917—U.S. Supreme Court decision in United States v. Gradwell, which ruled that the federal criminal code was not meant to criminalize voter fraud in congressional primary elections. May 2, 1921—U.S. Supreme Court decision in Newberry v. United States, which held that Congress could not regulate party primary elections. May 7, 1922—New York Times article appears on the illegal ﬁnancial arrangements involving the Teapot Dome Naval Oil Reserves in Wyoming, which became one of the major political scandals in American history. February 28, 1925—The Federal Corrupt Practices Act of 1925 passed, which required the disclosure of contributors and their donations to federal candidates as well as restricting expenditures by candidates. February 23, 1927—The Radio Act of 1927 passed, which created the Federal Radio Commission to regulate the distribution of radio station licenses and

Chronology

to establish rules for the use of the airwaves by broadcasters, including use by candidates. May 16, 1927—U.S. Supreme Court decision in Whitney v. California, which upheld the conviction of a man speaking about overthrowing the U.S. government. Justice Brandeis’s concurring opinion, touting the “free marketplace of ideas,” becomes accepted law years later. May 28, 1928—Supplemental report “Leases upon Naval Oil Reserves and Activities of the Continental Trading Co. (Ltd.) of Canada” issued by the Senate committee investigating the Teapot Dome scandal. October 24, 1929—Stock market begins to crash on Wall Street, marking the beginning of the Great Depression. January 6, 1930—Great Lakes Broadcasting Co. v. Federal Radio Commission, 59 App. D.C. 197 (1930), which upheld Congress’s right to regulate radio in the “public interest.” February 2, 1931—KFKB Broadcast Association v. Federal Radio Commission, 60 App. D.C. 79 (1931), which again upheld Congress’s authority to regulate radio in the public interest. November 8, 1932—Franklin Roosevelt elected as 32nd president. November 28, 1932—Trinity Methodist Church, South v. Federal Radio Commission, 61 App. D.C. 311 (1932), which ruled that the Federal Communications Commission can make radio licensing decisions out of concern for the public interest. January 8, 1934—U.S. Supreme Court decision in Burroughs and Cannon v. United States, which upheld the Federal Corrupt Practices Act of 1925 against a constitutional challenge. June 19, 1934—The Federal Communications Act of 1934, which created the Federal Communication Commission (replaced the Federal Radio Commission) and outlined rules for the balanced treatment of candidates by broadcasters. August 26, 1935—The Public Utility Holding Company Act of 1935 (PUHCA) passed, which banned holding companies from contributing to federal candidates. August 2, 1939—An Act to Prevent Pernicious Political Activities (the Hatch Act of 1939) passed, which made it illegal for federal employees to participate in electoral campaigns, except for the act of voting. July 19, 1940—Amendments to the Hatch Act (1940) passed, which extended the original 1939 act to state government employees. January 16, 1941—The FCC issued the Mayﬂower Doctrine, also known as the Fairness Doctrine, as an advisory opinion that required broadcasters that engage in news coverage to do so in a fair and balanced manner. May 26, 1941—United States v. Classic, 313 U.S. 299 (1941), which overturned Newberry v. United States (1921), thereby giving Congress the authority to regulate primary elections. December 7, 1941—United States entered World War II by a vote of Congress. May 10, 1943—U.S. Supreme Court decision in NBC, Inc. v. United States, which ruled that the Communications Act of 1934 gave the FCC the authority to regulate

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radio in the public interest. The FCC used this latitude to issue the Fairness Doctrine in 1949. June 25, 1943—The War Labor Disputes (Smith-Connally) Act passed, which banned political contributions to federal candidates by labor unions during World War II. June 23, 1947—The Labor-Management Relations (Taft-Hartley) Act of 1947 passed, which made the Smith-Connally Act’s provisions permanent. June 21, 1948—U.S. Supreme Court decision in United States v. Congress of Industrial Organizations, which ruled that the ban on independent campaign expenditures by labor unions was constitutional. 1949—January 16, 1941—The Fairness Doctrine, also known as the Mayﬂower Doctrine, was announced in an FCC Advisory Opinion that required broadcasters to devote airtime in a fair and balanced manner to public issues. March 11, 1957—United States v. United Auto Workers, 352 U.S. 567 (1957), which upheld the constitutionality of a provision of Taft-Hartley, prohibiting labor unions from spending general treasury funds on independent campaign expenditures. September 14, 1959—Amendments of 1959 to the Federal Communications Act of 1934 passed by Congress, which extended and updated rules for radio broadcasters’ treatment of candidates to television stations. November 22, 1963—President John F. Kennedy assassinated. July 2, 1964—Civil Rights Act of 1964 passed, which was an historic achievement in the advancement of civil rights in the United States. August 2, 1964—The Gulf of Tonkin incident occurs, which triggered the deployment of the U.S. combat troops to Vietnam and marked the start of the Vietnam War. November 13, 1966—The Presidential Election Campaign Fund Act of 1966 passed and eventually repealed. It created the ﬁrst public ﬁnancing mechanism for presidential elections. October 15, 1968—U.S. Supreme Court decision in Williams v. Rhodes, which struck down an Ohio ballot access law that made it extremely difﬁcult for a minor party to gain access to the presidential ballot. November 5, 1968—Richard Nixon elected as 37th president. June 9, 1969—U.S. Supreme Court decision in Red Lion Broadcasting Co. v. Federal Communication Commission, which upheld the FCC’s use of the fairness doctrine. October 12, 1970—The Political Broadcast Act of 1970 vetoed by President Nixon. It would have limited how much all federal candidates could spend on radio and television advertisements and would have suspended the equal time requirement for presidential elections. June 21, 1971—U.S. Supreme Court decision in Jenness v. Fortson, which upheld a stringent ballot access law. December 10, 1971—The Revenue Act of 1971 passed, which established a mechanism—a checkoff box on tax returns—to allow taxpayer money to go to fund presidential campaigns.

Chronology

February 7, 1972—Federal Election Campaign Act (FECA) of 1971 passed, which set campaign contribution and spending limits for federal elections, replacing the Federal Corrupt Practices Act of 1925. June 17, 1972—The Democratic National Committee’s campaign headquarters in the Watergate Hotel burglarized. Reporting by journalists led to the discovery that the robbery was an act of political espionage and eventually caused President Nixon to resign his ofﬁce. June 18, 1973—U.S. Supreme Court decision in White v. Regester, which addressed the legal parameters of population deviations in state legislative districts. June 27, 1974—The Final Report of the Senate Select Committee on Presidential Campaign Activities (the Ervin Committee) issued, which listed the many illegal and unethical activities conducted by the Committee for the Reelection of the President, which was Nixon’s campaign committee, as well as recommendations for legislation to prevent future abuses. August 9, 1974—President Nixon resigned the presidency, in anticipation of an impeachment vote by the full House of Representatives as a result his actions taken as a candidate during the 1972 campaign and for alleged abuse of power as president. October 15, 1974—FECA amended and passed, which imposed more sweeping restrictions on campaign contributions to and expenditures by federal candidates. January 15, 1975—U.S. Supreme Court decision in Cousins v. Wigoda, which upheld the National Democratic Party’s choice of delegates from Chicago in the 1972 presidential election. January 30, 1976—U.S. Supreme Court decision in Buckley v. Valeo, which upheld most parts of the FECA amendments of 1974. May 11, 1976—FECA amended and passed in response to the Buckley v. Valeo decision. April 26, 1978—U.S. Supreme Court decision in First National Bank of Boston v. Bellotti, which ruled that corporations’ right to free speech allows for independent expenditures in state ballot initiatives. January 8, 1980—FECA, as amended in 1979, passed. It further reﬁned and perfected the earlier versions of the FECA. November 4, 1980—Ronald Reagan elected as 40th president. April 19, 1983—U.S. Supreme Court decision in Anderson v. Celebrezze, which struck down an Ohio law imposing an early ﬁling deadline for minor party candidates. June 30, 1986—U.S. Supreme Court decision in Davis v. Bandemer, which ruled that political gerrymandering cases were justiciable. December 10, 1986—U.S. Supreme Court decision in Munro v. Socialist Workers Party, which upheld a stringent ballot access law in Washington State. March 27, 1990—U.S. Supreme Court decision in Austin v. Michigan State Chamber of Commerce, which upheld a Michigan campaign ﬁnance law that banned corporations from using general treasury funds for independent expenditures in state campaigns.

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June 28, 1993—U.S. Supreme Court decision in Shaw v. Reno, which ruled that racial gerrymanders can be challenged under the 14th Amendment’s Equal Protection Clause. The Court ruled that the North Carolina legislature impermissibly used race as the sole criterion in drawing a congressional district after the 1990 census. October 6, 1993—The Hatch Act Reform Amendments of 1993 passed, which rolled back many of the restrictions on federal workers’ participation in election campaigns, so long as their activities did not occur on federal property or during their regular work hours. January to November 1996—Questionable and sometime illegal activities were conducted by the Democratic Party, the Clinton-Gore Reelection Campaign Committee, and the president and vice president themselves in their effort to raise campaign funds. June 26, 1996—U.S. Supreme Court decision in Colorado Republican Federal Campaign Committee v. Federal Election Commission, which ruled that political parties can spend unlimited money independently of their candidates. April 28, 1997—U.S. Supreme Court decision in Timmons v. Twin Cities Area New Party, which upheld state fusion bans. May 18, 1998—U.S. Supreme Court decision in Arkansas Educational Television Commission v. Forbes, which upheld a public broadcaster’s decision to exclude a minor party candidate from a congressional debate. January 24, 2000—U.S. Supreme Court decision in Nixon v. Shrink Missouri Government PAC, which upheld Missouri’s campaign contribution caps, loosely tied to Buckley v. Valeo (1976) limits. June 26, 2000—U.S. Supreme Court decision in California Democratic Party v. Jones, which declared unconstitutional California’s blanket primary. December 12, 2000—U.S. Supreme Court decision in Bush v. Gore, which ruled that the Florida recount violated the 14th Amendment’s Equal Protection Clause, thereby giving the presidency to George W. Bush. June 25, 2001—U.S. Supreme Court decision in Federal Election Commission v. Colorado Republican Federal Campaign Committee, which upheld caps on expenditures that political parties can coordinate with their candidates. March 27, 2002—The Bipartisan Campaign Reform Act of 2002 passed, which was a major overhaul of the FECA that banned soft, or unregulated, money from federal elections. December 10, 2003—U.S. Supreme Court decision in McConnell v. Federal Election Commission, which upheld the BCRA of 2002 against constitutional challenges. June 26, 2006—U.S. Supreme Court decision in Randall v. Sorrell, which struck down Vermont’s strict contribution and expenditure limits on campaigns for state ofﬁce. September 15, 2007—The Honest Leadership and Open Government Act, section 204, passed, which regulated bundling of campaign contributions. January 21, 2010—U.S. Supreme Court decision in Citizens United v. Federal Election Commission, which overruled Austin v. Michigan Chamber of Commerce (1990) and parts of McConnell v. Federal Election Commission (2003).

Chronology

July 22, 2010—The FEC issued two advisory opinions that interpreted and applied the decision in Citizens United v. Federal Election Commission to allow for groups to establish PACs that came to be known as super PACs and had the ability raise and spend unlimited amounts of money. September 27, 2010—The Democracy Is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act killed by ﬁlibuster in the Senate. The act would have required full disclosure of campaign contributors and the amounts of their donations in federal elections.

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1 THE 19TH CENTURY Campaigning for elective ofﬁce has been a feature of American political life since the colonial period, and neither the state constitutions ratiﬁed after 1776 nor the federal Constitution of 1787 did much to alter the nature of campaigns. Seeking elected ofﬁce in the 18th century was primarily a “gentleman’s pursuit” (Mutch 1988, xv). Candidates paid their own expenses and campaigned for their ofﬁces passively; that is, they stood for ofﬁce, eschewing direct appeals to the electorate for their votes. The candidates were most often respected, wealthy men in their communities, preferably with some experience in government service, and the voters, who were white, male property owners, decided on the basis of the candidates’ reputations (see Hofstadter 1969; Mutch 1988; Thayer 1973). When campaigning occurred, it most often took the form of treating the voters; a candidate held a rally at which voters were offered free food and drink (often ale), purchased by the candidate. Campaign expenses were not great, but generally beyond the means of the average citizen, leaving the pool of potential ofﬁce seekers restricted to people who could self-ﬁnance their campaigns, because political parties had not yet formed to assist candidates with fund-raising and mobilizing voters. Two political parties emerged in the 1800s, the Federalists, the party of Washington, Adams, and Hamilton, and the Democratic-Republicans, the party of Jefferson, Madison, and Monroe. These parties’ activities at the state and local levels shaped the course of election campaigns for the next 60 years. One of the earliest partisan actions taken by state legislators was gerrymandering, or the practice of drawing legislative district boundaries to increase the chances of victory for the candidates of the party controlling the legislature (see document). As the size of the electorate grew with the elimination of property requirements as a condition of voting, the cost of campaigns increased. Treating and mobilizing voters to get them to the polls, running stories in newspapers, posting handbills, and printing the ballots (done by the parties until the end of the 19th century) required more money. The complex work also led to the development of professional politicians, people who made their living organizing campaigns. To pay these expenses, parties raised campaign funds, targeting people appointed to government jobs at the local, state, and federal levels for contributions. In a process that came to be called the spoils system, government employees owed their positions to the winning party, and the highest elected executive ofﬁcers—for example, mayors, governors, and presidents—made the appointments. The ﬁrst president to employ the spoils system extensively was Andrew Jackson (see documents), and assessment, a practice in

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which government employees were encouraged to donate a percentage of their salaries to their party, became a standard practice of the new Democratic Party, which emerged during the 1828 election. Problems with the spoils system and assessment—unqualiﬁed employees compromised in their work by excessive devotion to their party—eventually generated calls for reform by the Whig Party, which had replaced the Federalists as one of the two major parties. President William Henry Harrison, a Whig elected in 1840, stated his position on assessment and used an executive order to stem the practice (see documents). Unfortunately, assessment reappeared with the election of a new administration in 1845, and both parties continued to employ it despite the passage of the Naval Appropriations Act of 1867, which included a section banning assessment (see document), and President Hayes’s executive order of 1877 (see document). Both parties had become heavily dependent on patronage to ﬁll government jobs and the money raised through assessment to ﬁll their campaign coffers. And as campaign costs escalated following the Civil War, both parties ramped up their efforts to secure stable and ever larger sources of income. Thayer described the time from 1876 to 1932 as “the Golden Age of Boodle,” when both parties engaged in questionable, if not outright illegal, behavior to raise money and win elections. For example, New York City’s Tammany Hall demanded all candidates and city government employees pay a percentage of their salaries as a fee, while party organizations in Chicago and St. Louis hired ﬂoaters, people who ﬂoated among polling stations on election day and voted “early and often” for the party offering them the most money (Thayer 1973, 37–40). The assassination of President James A. Garﬁeld (March 4 to September 19, 1881) and the subsequent passage of the Civil Service (Pendleton) Act in 1883, however, altered the political landscape. Garﬁeld’s murder by a mentally unstable, partisan Republican, who believed he was owed a federal job, galvanized public opinion against the spoils system. Congress responded with the Pendleton Act, which made assessment a federal crime and replaced the spoils system with a merit system for some cabinet department positions. The Civil Service Act (see document) created a commission, somewhat independent of the president and Congress, to oversee the process of stafﬁng parts of the federal bureaucracy. The parties quickly adapted to the rules and developed new sources of funds, namely, wealthy individuals and corporations. For example, in 1883 Boies Penrose (R, PA) pressured businesses in his state for contributions through a method he called “frying the fat” by having Republicans in the state legislature propose a “squeeze bill,” a bill targeting a speciﬁc industry for regulation and thereby reducing (or squeezing) the industry’s proﬁts. Rather than risk facing such a regulation, businesses in the targeted industry, for example, coal mine owners, made contributions, and the bill was withdrawn (see Thayer 1973, 37–40; Pollock 1926, 7). Later, Matthew Quay (R, PA), the chairman of his national party in 1888, estimated that he raised 40 percent of the campaign funds for that year’s presidential election from individuals and business just in Pennsylvania (Kehl 1981, 98). When neither of the two major parties appeared responsive to the cries for reform, a third party surfaced in the South and the Great Plains with government reform at its core. The People’s, or Populist, Party held its ﬁrst convention in 1892, and its platform revealed its commitment to improving government’s responsiveness to the

Chapter 1 • The 19th Century

will of the common folk rather than those who contributed great sums to the parties. It called for expanding the civil service system to the entire federal bureaucracy and the adoption of the tools of direct democracy: initiative, referendum, and recall. The presidential election of 1896 marked a milestone in the history of campaigning, forever changing how parties, candidates, and contributors operated. The Republican Party candidate, William McKinley (OH), employed Ohio businessman Mark Hanna as his campaign manager. Hanna developed an organization and strategy for raising funds and publicizing his candidate that had not been seen before in America on such a scale. With headquarters in New York City, Hanna established fund-raising committees with monetary goals in every state. The money was then sent to the national party ofﬁce. Hanna also assessed industries on the basis of their respective “stake in the general prosperity.” For example, a high tariff on imported shoes beneﬁted shoe manufacturers, and Hanna calculated how much of the industry’s proﬁts were a function of the tariff supported by congressional Republicans and then expected each shoe company to donate a percentage of its proﬁts accordingly. His operation eventually netted between $6 million and $7 million (equivalent to approximately $85 million to $100 million in 2000). Interestingly, Hanna never made speciﬁc promises to deliver favorable legislation in exchange for contributions; instead, he promised access to the president and congressional leaders and maintained detailed records of contributors, which he tracked over time (Thayer 1973, 48–52; LaRaja 2008, 31). Most of the money donated to McKinley and the Republican Party came from America’s wealthiest individuals and most proﬁtable business sectors: Andrew Carnegie, Henry Clay Frick, James J. Hill, Philander Knox, and J. P. Morgan, to name a few; banking, coal, textile, and other manufacturers; and oil, railroad, and steel industries (Thayer 1973, 48–52; LaRaja 2008, 31). Hanna spent his extraordinary war chest on creating the ﬁrst nationwide advertising campaign to market his candidate. He placed McKinley’s image on billboards, posters, and buttons; issued press releases; had political cartoons created with campaign slogans and handbills printed in foreign languages to reach the newly enfranchised immigrants; and orchestrated the placement of prominent individuals (now called surrogates) to speak on McKinley’s behalf in locations where the candidate had not appeared. The latter was necessary because McKinley spent much of his time on his front porch, with Hanna paying to have groups of voters brought to Canton, Ohio, to hear the candidate speak. Hanna was also the ﬁrst campaign manager to make use of the telephone to communicate with donors and voters (Thayer 1973, 50–51; LaRaja 2008, 31). Hanna’s strategy was to sell his candidate through means accessible to the masses, and in doing so, he substituted style over substance. Though not an original approach, no one had ever attempted it in a presidential race or with such an array of tools. Voters learned far more about McKinley’s character than they did about his position on the issues. The tactic led Theodore Roosevelt to say of Hanna, “He had advertised McKinley as though he were a patent medicine” (quoted in LaRaja 2008, 31, from Shannon 1959, 33n64). A similar sentiment would be expressed during Nixon’s 1968 presidential campaign and then repeated frequently during subsequent elections at all levels (see McGinniss 1968). McKinley’s opponent, William Jennings Bryan (D, NE), faced a signiﬁcant ﬁnancial disadvantage, and though critical of the millionaires and large industries

3

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U.S. Election Campaigns

supporting Republicans, he raised much of his money from similar, but fewer, sources, most especially Marcus Daly and other Western silver mine operators. By some estimates, Bryan raised and spent between $300,000 and $600,000, far less than McKinley (Thayer 1973, 48–52; LaRaja 2008, 31; Hohenstein 2007, 60). McKinley handily defeated Bryan in 1896 and again in 1900. Reaction to the huge amounts of money raised anonymously by the parties in the last decade of the 19th century caused a number of states to pass laws regulating campaign fund-raising. Several states, notably New York in 1890, Michigan in 1891, and Massachusetts in 1892, passed publicity acts, laws requiring that donors’ names be disclosed. Other states, for example, Florida, Missouri, Nebraska, and Tennessee, modeled their laws after the English Corrupt Practices Act of 1883, which regulated campaign contributions, limited campaign expenditures, and required candidates and parties to disclose their contributors and how much they donated. Nebraska’s 1897 statutes took the added step of prohibiting direct corporate contributions to candidates. These state laws helped provide a foundation for eventual federal legislation in 1907, the Tillman Act (see document).

FURTHER READING Hofstadter, Richard. 1969. The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840. Berkeley: University of California Press. Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Jensen, Richard. 1971. The Winning of the Midwest: Social and Political Conﬂict, 1888–1896. Chicago: University of Chicago Press. Kehl, James A. 1981. Boss Rule in the Gilded Age. Pittsburgh: University of Pittsburgh Press. LaRaja, Raymond J. 2008. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press. McGinniss, Joe. 1968. The Selling of the President 1968. New York: Pocket Books. Mutch, Robert E. 1988. Campaigns, Congress, and the Courts: The Making of Federal Campaign Finance Law. New York: Praeger. Pollock, James. K. 1926. Party Campaign Funds. New York: Knopf. Pollock, James. K. 1927. “The Regulation of Lobbying.” American Political Science Review 21 (May): 335–41. Shannon, Jasper B. 1959. Money and Politics. New York: Random House. Thayer, George. 1973. Who Shakes the Money Tree? American Campaign Financing Practices from 1789 to the Present. New York: Simon & Schuster.

• Document: The Boston Gazette editorial satirizing the “Gerrymander” • Date: The editorial appeared in the Boston Gazette on March 26, 1812 • Signiﬁcance: Gerrymandering is the practice by which a majority party draws election district boundaries with the intent of providing its candidates with an advantage over other parties’ candidates. It has a long history in the United States, but the practice came to be known as gerrymandering with the publication of a Massachusetts newspaper editorial that satirized a redistricting act signed by Governor Elbridge Gerry. The author noted that the newly created district resembled a salamander.

DOCUMENT Boston Gazette editorial of March 26, 1812 The Gerry-Mander The horrid Monster of which this drawing is a correct representation, appeared in the County of Essex, during the last session of the Legislature. Various and manifold have been the speculations and conjectures, among learned naturalists respecting the genus and origin of this astonishing production. Some believe it to be the real Basilisk, a creature which had been supposed to exist only in the poet’s imagination. Others pronounce it the Serpens Monocephalus of Pliny, or single-headed Hydra, a terrible animal of pagan extraction. Many are of opinion that it is the Grifﬁn or Hippogriff of romance, which ﬂourished in the dark ages, and has come hither to assist the knight of the rueful countenance in restoring that gloomy period of ignorance, ﬁction and imposition. Some think it the great Red Dragon, or Bunyun’s Apollyon or the Monsirum Horrendum of Virgil, and all believe it a creature of infernal origin, both from its aspect, and from the circumstance of its birth. 5

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But the learned Doctor Watergruel who is famous for peeping under the skirts of nature, has decided that it belongs to the Salamander tribe, and gives many plausible reasons for this opinion. He says though the Devil himself must undoubtedly have been concerned, either directly or indirectly in the procreation of this monster, yet many powerful causes must have concurred to give it existence, amongst which must be reckoned the present combustible and venomous state of affairs. There have been, (says the Doctor) many ﬁery ebullitions of party spirit, many explosions of democratic wrath and fulminations of gubernatorial vengeance within the year past, which would naturally produce an uncommon degree of inﬂammation and acrimony in the body politic. But as the Salamander cannot be generated except in the most potent degree of heat, he thinks these malignant causes, could not alone have produced such diabolical effects. He therefore ascribes the real birth and material existence of this monster, in all its horrors, to the alarm which his Excellency the Governor and his friends experienced last season, while they were under the inﬂuence of the Dog-star and the Comet—and while his Excellency was pregnant with his last speech, his libellous message, and a numerous litter of new judges and other animals, of which he has since been happily delivered. This fright and purturbation was occasioned by an incendiary letter threatening him with ﬁre-brands, arrows and death; (if his proclamation is to be credited) which was sent to him by some mischevious wight, probably some rogue of his own party, to try the strength of his Excellency’s mind. Now thrown into a most fearful panic, extremely dangerous to persons in their situation, and calculated to produce the most disastrous effects upon their unborn progeny. From these premises the sagacious Doctor most solemnly avers there can be no doubt that this monster is a genuine Salamnder, though by no means perfect in all its members; a circumstance however which goes far to prove its illegitimacy. But as this creature has been engendered and brought forth under the sublimest auspices, he proposes that a name should be given to it, expressive of its genus, at the same time conveying an elegant and very appropriate compliment to his Excellency the Governor, who is known to be the zealous patron and promoter of whatever is new, astonishing and erratic, especially of domestic growth and manufacture. For these reasons and other valuable considerations, the Doctor has decreed that the monster shall be denominated a Gerry-mander, a name that must exceedingly gratify the parental bosom of our worthy Chief Magistrate, and prove so highly ﬂattering to his ambition, that the Doctor may conﬁdently expect in return for his ingenuity and ﬁdelity, some beneﬁts a little more substantial than the common reward of virtue. That asstute naturalist Lucricostus however in the 26th section of his invaluable notes upon the Salamander, clearly shows that this word is a corruption of the Latin Salimania, expressing the characteristic dislike and almost hydrophobic antipathy of that animal for sea salt: “Oweinge (to use the words of the author) to the properties and virtues of the sayde mineralle, as is well knowen to most folke, in dampeinge the heate of that elemente of fyre, wherin the sayde beaste doth abide, so that if a piece of salt, or any marine thinge be placed neare it, it dothe fret it sorely, and enrage it to such madnesse that it dothe incontinently throw from its mouthe a venemous spittle, which dothe tarnishe and destroy all that is of worth or value that it fallethe upon. A further and most manyfest proofe of which deadlie hatred appearethe in that, whereas, on and neare the renouned salt mountayne, so called, amydst alle the marvells and wonders with which it dothe abounde, not any of this Lizarde species

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hath been discoverable thereyne.” We therefore propose, with the utmost deference to the ingenious Doctor’s opinion, that the term Gerry-mania be substituted for Gerry-mander, as highly descriptive both of the singular ferocity of the monster in question, and the inﬂuence which the moon at certain periods, more especially on the approach of April, is supposed to exert over it. A friend of ours has further suggested that there is a peculiar felicity at the present time in adopting the term Gerry-mania, as according to his deﬁnition, Gerry is derived from the French Guerre, or the Italian, Guerra, (war) and that it therefore possesses the double advantage of expressing the characteristic ferocity of this monster, and that magnanimous rage for war which seems to have taken such possession of our worthy Chief Magistrate and his friends. But we mention this merely as an ingenious speculation, being well convinced ourselves, notwithstanding appearances, of the truly paciﬁc sentiments of that great man, whose mild and charitable denunciations of his political opponents have had such wonderful effect in convincing their reason, allaying the spirit of party, and in reconciling all conﬂicting opinions. SOURCE: Massachusetts Historical Society, http://www. masshist.org/objects/query3.cfm?queryID=1816

ANALYSIS

The Gerry-mander. A New Species of Monster which Appeared in Essex South District in Jan. 1812. This anonymous broadside issued in Salem, Massachusetts in 1812 reprints a cartoon that ﬁrst appears in the March 26, 1812, Boston Gazette. (Courtesy of the Massachusetts Historical Society.)

In representative democracies such as the United States, the people elect from among their number a subset of citizens, representatives, who make decisions on behalf of the people. But the numerical and physical size of the population to be represented by any elected ofﬁcial must somehow be deﬁned. For example, the U.S. president is elected by the people of the 50 states, so the president’s constituency is deﬁned as the entire United States. Likewise, a senator elected in Wyoming represents the people of the state of Wyoming. Each state’s boundaries were established at the time of the state’s entry into the Union, with few modiﬁcations over the years. But in the case of the U.S. House of Representatives, representatives’ district boundaries are redrawn by each state every 10 years following the U.S. census. Congress reapportions the number of representatives allotted to each state by a complex formula that ensures that each state’s population is fairly balanced within the House. The Constitution guarantees that each state will receive at least one representative, regardless of the size of its population. Because population growth across the country over any 10-year period is uneven, and because Congress by legislation ﬁxed the size of the House at 435 seats in 1929, the apportionment process often results in some states gaining seats and some losing seats. Following the reapportioning of seats, the states redraw the district boundaries to accommodate the addition or reduction in seats as well as any population shifts within the state that occurred since the last census.

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The Constitution’s Framers probably never anticipated that the redistricting process would become politicized. Most of them feared the rise of political parties, and so they created a governmental system that they thought would mitigate the effects of factions, that is, special interests or parties, as Madison discussed in Federalist No. 10. But two parties did emerge following the presidential election of 1800: the Federalists, the party of Washington and Adams, and the Democratic-Republicans, the party of Jefferson and Madison. The efforts of both parties to gain some advantage in federal and state legislative elections led to the process that has come to be known as gerrymandering. The 1810 census and the subsequent reapportionment of House seats necessitated that each state review its districts. The Massachusetts legislature, which was then controlled by the Democratic-Republican Party, passed its redistricting act in 1812, and the law was signed by Governor Elbridge Gerry, also a member of that party. The 1812 act gave a distinct advantage to Democratic-Republican Party candidates over the Federalists, so much so that Gerry’s party won two-thirds of the state legislature’s seats even though its candidates received less than half the total votes cast in the state (see http://www.masshist.org/objects/query3.cfm?queryID=816). Though it has been argued that gerrymandering was practiced well before the term was devised, the editorial in the Boston Gazette established the word in America’s political vocabulary. The author’s biting satire references biology, mythology, and the Devil in an effort to ridicule the practice. And while Gerry is the main target for the author’s scorn, it is unlikely that the governor was the architect of the redistricting plan. Indeed, he left his post as governor following the presidential election of 1812 to become James Madison’s vice president. Gerrymandering continues to be practiced across the country today despite a series of Supreme Court decisions that declared the practice unconstitutional when used for racial discrimination, benign motivations, or otherwise (see Reno v. Shaw, 509 U.S. 630 [1993] and Miller v. Johnson, 515 U.S. 900 [1995]), though the Court also argued that it had yet to be presented with sufﬁcient evidence demonstrating that gerrymandering caused an unfair election outcome.

• Documents: Inaugural Address of President Andrew Jackson State of the Union Address of President Andrew Jackson • Dates: Inaugural address delivered on March 4, 1829 State of the Union address delivered on December 8, 1829 • Signiﬁcance: The use of patronage, as a matter of policy, to ﬁll positions in the federal government became an accepted practice with the presidency of Andrew Jackson. These two pronouncements from Jackson’s ﬁrst year in ofﬁce reveal his intention to employ patronage and his justiﬁcation for doing so.

DOCUMENT Inaugural Address of President Andrew Jackson Fellow-Citizens: About to undertake the arduous duties that I have been appointed to perform by the choice of a free people, I avail myself of this customary and solemn occasion to express the gratitude which their conﬁdence inspires and to acknowledge the accountability which my situation enjoins. While the magnitude of their interests convinces me that no thanks can be adequate to the honor they have conferred, it admonishes me that the best return I can make is the zealous dedication of my humble abilities to their service and their good. . . . In administering the laws of Congress I shall keep steadily in view the limitations as well as the extent of the Executive power, trusting thereby to discharge the functions of my ofﬁce without transcending its authority. . . . . . . The recent demonstration of public sentiment inscribes on the list of Executive duties, in characters too legible to be overlooked, the task of reform, which will require particularly the correction of those abuses that have brought the patronage of the Federal Government into conﬂict with the freedom of elections, 9

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and the counteraction of those causes which have disturbed the rightful course of appointment and have placed or continued power in unfaithful or incompetent hands. In the performance of a task thus generally delineated I shall endeavor to select men whose diligence and talents will insure in their respective stations able and faithful cooperation, depending for the advancement of the public service more on the integrity and zeal of the public ofﬁcers than on their numbers.

DOCUMENT State of the Union Address of President Andrew Jackson Fellow Citizens of the Senate and of the House of Representatives: It affords me pleasure to tender my friendly greetings to you on the occasion of your assembling at the seat of Government to enter upon the important duties to which you have been called by the voice of our country-men. The task devolves on me, under a provision of the Constitution, to present to you, as the Federal Legislature of 24 sovereign States and 12,000,000 happy people, a view of our affairs, and to propose such measures as in the discharge of my ofﬁcial functions have suggested themselves as necessary to promote the objects of our Union. There are, perhaps, few men who can for any great length of time enjoy ofﬁce and power without being more or less under the inﬂuence of feelings unfavorable to the faithful discharge of their public duties. Their integrity may be proof against improper considerations immediately addressed to themselves, but they are apt to acquire a habit of looking with indifference upon the public interests and of tolerating conduct from which an unpracticed man would revolt. Ofﬁce is considered as a species of property, and government rather as a means of promoting individual interests than as an instrument created solely for the service of the people. Corruption in some and in others a perversion of correct feelings and principles divert government from its legitimate ends and make it an engine for the support of the few at the expense of the many. The duties of all public ofﬁcers are, or at least admit of being made, so plain and simple that men of intelligence may readily qualify themselves for their performance; and I can not but believe that more is lost by the long continuance of men in ofﬁce than is generally to be gained by their experience. I submit, therefore, to your consideration whether the efﬁciency of the Government would not be promoted and ofﬁcial industry and integrity better secured by a general extension of the law which limits appointments to four years. In a country where ofﬁces are created solely for the beneﬁt of the people no one man has any more intrinsic right to ofﬁcial station than another. Ofﬁces were not established to give support to particular men at the public expense. No individual wrong is, therefore, done by removal, since neither appointment to nor continuance in ofﬁce is a matter of right. The incumbent became an ofﬁcer with a view to public beneﬁts, and when these require his removal they are not to be sacriﬁced to private interests. It is the people, and they alone, who have a right to complain when a bad ofﬁcer is substituted for a good one. He who is removed has the same means of obtaining a living that are enjoyed by the millions who never held ofﬁce. The proposed limitation would destroy the idea of property now so generally connected

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with ofﬁcial station, and although individual distress may be some times produced, it would, by promoting that rotation which constitutes a leading principle in the republican creed, give healthful action to the system.

ANALYSIS The origins of federal campaign and election laws and regulations may be traced to the politicization of stafﬁng the federal bureaucracy with the inauguration of President Andrew Jackson in 1829. While not the ﬁrst president to remove executive department employees (including those appointed by the president and conﬁrmed by the Senate), he was the ﬁrst to do so for expressly partisan reasons, thereby initiating the spoils system. “To the victor belong the spoils,” contended William Learned Marcy (1786–1857), a governor and U.S. senator from New York, and with his words, the expression “spoils system” came into the political lexicon. It operated as follows. Following an election in which a new administration took ofﬁce, most if not all government employees who were not of the same party as the new chief executive (president, governor, or mayor) or who were deemed not to be sufﬁciently loyal to the new executive were replaced with people who had worked for the party or the executive’s election. When government hires people on the basis of partisan afﬁliation, it is referred to as patronage. Thomas Nast’s “In Memorium—Our Civil Service as It Was,” a wood engraving print published in Thus, Jackson’s decision to employ the spoils system created a Harper’s Weekly on April 18, 1877, celebrated the link to campaigns and elections via the president’s party. Later impending demise of the Jacksonian spoils system. documents in this chapter demonstrate how the expansion of (Library of Congress, Prints & Photographs Division, the spoils system and the use of patronage to award govern- LC-USZ62–89864.) ment contracts led to some major scandals—and a death—that ultimately produced legislation to control the excesses of the system. Rotation in ofﬁce—the practice of regularly replacing personnel—began during Washington’s administration and continued through that of Adams. There were no constitutional or statutory limits on how long federal employees could retain their positions until Congress acted on September 24, 1789, to ﬁx at four years the terms of the U.S. district attorneys and marshals (New York Times, December 10, 1883). When Washington and Adams took steps to remove federal ofﬁceholders, including cabinet secretaries, their reasons were for incompetence or disloyalty to the president. Presidents Thomas Jefferson (1801–1809) through John Quincy Adams (1825– 1829) continued the practice. Jefferson was the ﬁrst president to make explicit his desire to ﬁll vacant federal positions with people who shared his political ideas, namely, anti-Federalists or members of the nascent Democratic-Republican Party. However, Jefferson continued the tradition of appointing only those best qualiﬁed for government positions. Generally, those appointed were educated, of some wealth and social standing, and with some government experience. But neither Jefferson nor those

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who succeeded him actively replaced federal employees hired by the opposing party, waiting instead for those employees to resign voluntarily. With the Tenure of Ofﬁce Act of 1820, Congress extended term limits of four years to several categories of federal employees, most of whom were ofﬁcers empowered to handle public funds, for example, internal revenue and customs collectors. Several years later, the act was expanded to include second- and third-class postmasters (New York Times, February 2, 1892). Jackson’s 1828 presidential campaign was unabashedly populist in tone, extolling the virtues of the common folk and vowing to make the federal government more responsive to the people’s will. In his inaugural address, he claimed that “the patronage of the Federal Government” was somehow undermining “the freedom of elections.” Essentially, Jackson was cleverly suggesting that the public’s wishes were being thwarted because federal workers, appointed by his predecessor and therefore not loyal to Jackson, would not carry out his orders, and therefore not reﬂective of public opinion. He vowed to appoint only those “men whose diligence and talents will insure in their respective stations able and faithful cooperation,” and undoubtedly, such men would be members of his new Democratic Party. In his ﬁrst State of the Union address, Jackson embarked on a lengthier and more detailed explanation for his intention to limit additional federal ofﬁces to four years, essentially extending the application of the Tenure of Ofﬁce Act. He argued that federal employment had become the sinecure of the educated and wealthy and that these men came to see their positions as lifetime appointments, which beneﬁted the few at the expense of the many. The people, he claimed, had a right to voice their disapproval when they experienced poor performance by government employees, and the president should have the authority to replace a bad ofﬁcer with a good one. Jackson sought to replace the privileged with common folk, thereby rewarding average Americans who campaigned and voted for him. Over his eight years in ofﬁce, Jackson removed between 10 and 20 percent of the federal employees he inherited from President John Quincy Adams. His vice president and successor, Martin Van Buren, continued using the spoils system through 1841. The spoils system did not ensure that Jackson had direct control over the bureaucracy, however; and in fact, it contributed to the weakening of the presidency (Milkis and Nelson 2008, chap. 5). Most of the federal positions were either in the postal system as postmasters, scattered across the United States, or as revenue agents, collecting taxes at customs houses in port cities. Local party organizations laid claim to these jobs and recommended the people whom the president eventually named to the posts. In return, those hired were expected to work and vote for the party. In some cases, party leaders also “requested” that the appointees contribute a percentage of their federal salary to the party, something that would become routine and known as assessment, a practice that Whig president William Henry Harrison, sought to end, as the next documents reveal.

FURTHER READING Eriksson, Erik M. 1927. “The Federal Civil Service under President Jackson.” Mississippi Valley Review 13, no. 4:517– 40.

Chapter 1 • The 19th Century Gerhardt, Michael J. 2000. The Federal Appointments Process: A Constitutional and Historical Analysis. Durham, NC: Duke University Press. Lee, Robert D. 1993. Public Personnel Systems. 3rd ed. Gaithersburg, MD: Aspen. Lewis, David E. 2008. The Politics of Presidential Appointments: Political Control and Bureaucratic Performance. Princeton, NJ: Princeton University Press. Milkis, Sidney M., and Michael Nelson. 2008. The American Presidency: Origins and Development, 1776–2007. 5th ed. Washington, DC: Congressional Quarterly Press.

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• Documents: Inaugural Address of President William Henry Harrison Circular Letter from Daniel Webster, Secretary of State, to Thomas Ewing, Secretary of the Treasury • Dates: Inaugural address delivered on March 4, 1841 Circular letter of March 20, 1841 • Signiﬁcance: Following 12 years of Democratic administrations, Harrison’s election provided the Whig Party its ﬁrst opportunity to institute reforms. The president’s inaugural address captured the Whig’s distaste for Jackson’s policies that, in its view, politicized the stafﬁng of the executive branch and corrupted the electoral system. The circular letter from Webster, sent on Harrison’s behalf, is an example of a speciﬁc reform, one to end the practice of assessment.

DOCUMENT Inaugural Address President William Henry Harrison Thursday, March 4, 1841 This state of things has been in part effected by causes inherent in the Constitution and in part by the never-failing tendency of political power to increase itself. By making the President the sole distributer of all the patronage of the Government the framers of the Constitution do not appear to have anticipated at how short a period it would become a formidable instrument to control the free operations of the State governments. Of triﬂing importance at ﬁrst, it had early in Mr. Jefferson’s Administration become so powerful as to create great alarm in the mind of that patriot from the potent inﬂuence it might exert in controlling the freedom of the elective franchise. 14

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If such could have then been the effects of its inﬂuence, how much greater must be the danger at this time, quadrupled in amount as it certainly is and more completely under the control of the Executive will than their construction of their powers allowed or the forbearing characters of all the early Presidents permitted them to make. But it is not by the extent of its patronage alone that the executive department has become dangerous, but by the use which it appears may be made of the appointing power to bring under its control the whole revenues of the country. The Constitution has declared it to be the duty of the President to see that the laws are executed, and it makes him the Commander in Chief of the Armies and Navy of the United States. If the opinion of the most approved writers upon that species of mixed government which in modern Europe is termed monarchy in contradistinction to despotism is correct, there was wanting no other addition to the powers of our Chief Magistrate to stamp a monarchical character on our Government but the control of the public ﬁnances; and to me it appears strange indeed that anyone should doubt that the entire control which the President possesses over the ofﬁcers who have the custody of the public money, by the power of removal with or without cause, does, for all mischievous purposes at least, virtually subject the treasure also to his disposal. . . . To this danger to our republican institutions and that created by the inﬂuence given to the Executive through the instrumentality of the Federal ofﬁcers I propose to apply all the remedies which may be at my command. It was certainly a great error in the framers of the Constitution to have made the ofﬁcer at the head of the Treasury Department entirely independent of the Executive. He should at least have been removable only upon the demand of the popular branch of the Legislature. I have determined never to remove a Secretary of the Treasury without communicating all the circumstances attending such removal to both Houses of Congress. The inﬂuence of the Executive in controlling the freedom of the elective franchise through the medium of the public ofﬁcers can be effectually checked by renewing the prohibition published by Mr. Jefferson forbidding their interference in elections further than giving their own votes, and their own independence secured by an assurance of perfect immunity in exercising this sacred privilege of freemen under the dictates of their own unbiased judgments. Never with my consent shall an ofﬁcer of the people, compensated for his services out of their pockets, become the pliant instrument of Executive will. SOURCE: University of Oklahoma College of Law, http://www.law.ou.edu/ushistory/ harrison.shtml

DOCUMENT Circular Letter from Daniel Webster, Secretary of State, to Thomas Ewing, Secretary of the Treasury March 20, 1841 Department of State, March 20, 1841 To the Hon. Thomas Ewing, Secretary of the Treasury: Sir: The President is of opinion that it is a great abuse to bring the patronage of the General Government into conﬂict with the freedom of elections, and that this

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abuse ought to be corrected whenever it may have been permitted to exist, and to be prevented for the future. He, therefore, directs that information be given to all ofﬁcers and agents in your department of the public service that partisan interference in popular elections, whether of State ofﬁcers or of ofﬁcers of this Government, and for whomsoever or against whomsoever it may be exercised, or the payment of any contribution or assessment, or salaries or ofﬁcial compensation, for party or election purposes will be regarded by him as cause of removal. It is not intended that any ofﬁcer shall be restrained in the free and proper expression and maintenance of his opinions respecting public men or public measures, or in the exercise to the fullest degree of the constitutional rights of suffrage. But persons employed under the Government, and paid for their services out of the public Treasury, are not expected to take an active or ofﬁcious part in attempts to inﬂuence the minds or votes of others, such conduct being deemed inconsistent with the spirit of the Constitution and the duties of public agents acting under it, and the President is resolved, so far as depends upon him, that while the exercise of the elective franchise by the people shall be free from undue inﬂuence of ofﬁcial station and authority, opinion shall also be free among the ofﬁcers and agents of the Government. The President wishes it further to be announced and distinctly understood that for all collecting and disbursing ofﬁcers promptitude in rendering accounts and entire punctuality in paying balances will be rigorously exacted. In his opinion it is time to return in this respect to the early practice of the Government, and to hold any degree of delinquency on the part of those intrusted with the public money just cause of immediate removal. He deems the severe observance of this rule to be essential to the public service, as every dollar lost of the Treasury by unfaithfulness in ofﬁce creates a necessity for a new charge upon the people. I have the honor to be, Sir, your obedient servant. Daniel Webster (Similar letters have been addressed to other heads of departments.) SOURCE: New York Times, August 9, 1885

ANALYSIS During his administration, President Jackson expanded the presidency’s powers by establishing “rotation in ofﬁce” for federal employees, which allowed the president to replace workers appointed by the previous administration with his cronies and his party’s followers as a reward for their support. Local party organizations solicited contributions from those newly hired with an implied threat of job loss should a donation not be forthcoming. The practice, labeled assessment, became widespread. The spoils system and assessment were attacked as corrupting both the operation of the executive branch and the electoral system by the Whig Party, which emerged as the major opposition party to the Democrats after the election of 1828. The National Republican Party immediately preceded the Whigs in the aftermath of the 1824 presidential election. That bitterly fought contest divided the DemocraticRepublican Party, as four presidential candidates sought the party’s nomination, and ended with the controversial selection of John Quincy Adams by the House of Representatives, when no candidate had received a majority of the Electoral College vote, rather than Jackson, who had won the popular vote. The disintegration

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of the Democratic-Republican Party marked the end of the Era of Good Feelings (1817–1825) and led Jackson to form the Democratic Party and Henry Clay, formerly the Speaker of the House as a Democratic-Republican, to create the National Republican Party, which backed John Quincy Adams in his unsuccessful bid for reelection in 1828. The Whigs challenged the idea of executive supremacy, favored by Jackson and his party, supporting instead Congress as the proper voice of the people. Whigs sought to build a strong national economy by maintaining the national bank and laying tariffs to protect American industry. But the populist message, ﬁrst of Jackson and then Van Buren, coupled with the disbursing of government jobs to entice and hold voters made it exceptionally difﬁcult for the Whigs to win the presidency. They were ﬁnally successful in 1840, when the party ran a war hero, William Henry Harrison, as its candidate. Harrison’s inaugural address, which Henry Clay and Daniel Webster helped draft (Milkis and Nelson 2008, 135), was long and rambling. Delivered in frigid weather and 90 minutes long, it might have contributed to the pneumonia that killed Harrison after only one month in ofﬁce. Prominently centered in the speech was the Whig criticism of Jackson’s aggrandizement of presidential power, comparing what Jackson had created to European monarchy and despotism. Of particular concern was “the inﬂuence of the Executive in controlling the freedom of the elective franchise through the medium of the public ofﬁcers,” that is, the use of the spoils system. Harrison vowed to halt the practice, saying, “never with my consent shall an ofﬁcer of the people, compensated for his services out of their pockets, become the pliant instrument of Executive will.” Harrison believed that by eliminating patronage the performance of government employees would improve, because their loyalty would be to the American people rather than to the president. Not to be overlooked was the partisan consequence: to weaken the Democratic Party by eliminating the spoils system. Webster’s memo, written at Harrison’s behest, was sent to every cabinet secretary and aimed to end assessment. The Whig Party, which controlled the Senate in 1839, considered a bill to make it a federal crime to assess any federal or state employee. Hearings conducted by the House in 1838 discovered that the Democratic Party had assessed employees of the U.S. Custom House in New York City. The bill did not pass, leaving the new Whig administration to issue this memo. Webster wrote, “Partisan interference in popular elections, whether of State ofﬁcers or of ofﬁcers of this Government, and for whomsoever or against whomsoever it may be exercised, or the payment of any contribution or assessment, or salaries or ofﬁcial compensation, for party or election purposes will be regarded by him [the president] as cause of removal.” In clear terms, the president demonstrated his seriousness by his willingness to terminate any federal workers caught campaigning in federal or state elections or demanding an assessment from federal workers. Unfortunately for the Whigs, Harrison’s death slowed the reform effort, as Vice President John Tyler, a former Democrat, did not subscribe to the entire agenda of his adopted party, particularly the idea that the president should be subservient to Congress (Mutch 1988, 139). Tyler was denied the Whig presidential nomination at its convention in 1844, which opened the door for James K. Polk, governor of Tennessee, to retake the ofﬁce for the Democrats. The two parties alternated control of the presidency until 1860, when the Republican Party replaced the Whigs as the second

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major national party and then proceeded to dominate the national political scene for decades after. With slavery dominating the country’s agenda in the years leading to 1860, efforts to correct the spoils system faded to the background.

FURTHER READING Milkis, Sidney M., and Michael Nelson. 2008. The American Presidency: Origins and Development, 1776–2007. 5th ed. Washington, DC: Congressional Quarterly Press. Mutch, Robert E. 1988. Campaigns, Congress and Courts. New York: Praeger.

• Document: Naval Appropriations Act of 1867 • Date: Signed into law on March 2, 1867 • Signiﬁcance: Language included in a naval appropriations act was the ﬁrst federal law to target a speciﬁc method of raising campaign funds, called assessment, and to punish individuals who solicited assessments.

DOCUMENT Naval Appropriations Act of 1867 Sec. 1546. [Requiring contributions for political purposes at navy yards.] No ofﬁcer or employee of the Government shall require or request any working man in any navy-yard to contribute or pay any money for political purposes, nor shall any working man be removed or discharged for political opinion; and any ofﬁcer or employee of the Government who shall offend against the provisions of this section shall be dismissed from the service of the United States.

ANALYSIS With the development of a competitive, two-party system across the entire country by 1832, the parties sought predictable sources to fund their organizations and campaigns. Wealthy individuals and businesses made direct contributions to the parties without any limits. But as the costs of campaigns grew, the parties needed more money, and they turned to their members who had been awarded state and federal jobs through the spoils system for contributions equal to a percentage of their salaries. The practice, known as assessment, became widespread and accepted. Parties

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received their “contributions” and cemented the loyalty of their employed members (Corrado 1997, 25–60). Earlier attempts to ban assessment through legislation failed to pass, while executive orders imposed during Whig administrations were removed by subsequent Democratic administrations (see previous documents “Inaugural Address of President William Henry Harrison” and “Circular Letter from Daniel Webster”). With the end of the Civil War, government reformers argued yet again to legislate assessment’s end, and they ﬁnally succeeded when this section was added to a naval appropriations bill. It remains a common practice in Congress for an unpopular measure, one that is unlikely to be passed on its own merits, to be inserted in an appropriations bill, because appropriations bills must be passed to fund the government’s operations. Members are likely to bite the bullet and vote for the appropriations bill despite a distasteful provision contained within it. Section 1546’s clear language made it a crime for a government employee to solicit political contributions from other employees in federal navy yards. It was also a criminal offense to terminate the employment of any worker on the basis of the worker’s “political opinion,” or the person’s party afﬁliation. Punishment for violating the law was the loss of one’s government job. While reformers were excited to have such a law in place, the parties effectively continued to assess workers, because they knew that the act was unlikely to be enforced, which it wasn’t. Since both parties beneﬁted and no obvious harm appeared to be caused by assessment, there was no general public outcry. Widespread government corruption had not yet emerged as a source of concern. The excesses of the spoils system and assessment became terribly apparent, however, with the assassination of President Garﬁeld in 1881.

FURTHER READING Corrado, Anthony, Thomas E. Mann, Daniel R. Ortiz, and Trevor Potter. 1997. Campaign Finance Reform: A Sourcebook. Washington, DC: Brookings Institution Press. Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Smith, Bradley A. 2001.Unfree Speech: The Folly of Campaign Finance Reform. Princeton, NJ: Princeton University Press.

• Document: President Rutherford B. Hayes’s Executive Order on Assessment and the Political Activities of Federal Employees • Date: Executive order issued on June 22, 1877 • Signiﬁcance: This is the second attempt by a president to limit the practice of assessment by executive order (the ﬁrst being President Harrison in 1841; see document). Assessment occurs when a political party requires that people who are given jobs through the spoils system contribute a percentage of their salaries to the political party. Hayes’s executive order took an additional step by protecting federal employees from compulsory political work for the party.

DOCUMENT Rutherford B. Hayes’s Executive Order, June 22, 1877 SIR:* I desire to call your attention to the following paragraph in a letter addressed by me to the Secretary of the Treasury on the conduct to be observed by ofﬁcers of the General Government in relation to the elections: *Addressed to Federal ofﬁcers generally, No ofﬁcer should be required or permitted to take part in the management of political organizations, caucuses, conventions, or election campaigns. Their right to vote and to express their views on public questions, either orally or through the press, is not denied, provided it does not interfere with the discharge of their ofﬁcial duties. No assessment for political purposes on ofﬁcers or subordinates should be allowed. This rule is applicable to every department of the civil service. It should be understood by every ofﬁcer of the General Government that he is expected to conform his conduct to its requirements. Very respectfully, R.B. HAYES 21

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Wood engraving print of the assassination of Pres. James A. Garﬁeld from drawings by A. Berghaus and C. Upham, in Frank Leslie’s Illustrated Newspaper, July 16, 1881. (Library of Congress, Prints & Photographs Division, LC-USZ62–7622.)

SOURCE: The American Presidency Project, http://www.presidency.ucsb.edu/ws/ index.php?pid=68664

ANALYSIS In the controversial presidential election of 1876, Rutherford B. Hayes was elected when a decision by a congressional commission awarded him the disputed electoral votes from four states—Florida, Louisiana, Oregon, and South Carolina, thereby giving him a majority in the Electoral College, even though the Democratic candidate, Samuel Tilden, won a majority of the popular vote. Hayes had been governor of Ohio, where he initiated reforms in state government, replacing the spoils system with merit hiring, also known as civil service. In his inaugural address, he declared his intent to bring similar reforms to the federal government. Hayes’s views on government stafﬁng made him a Half-Breed, also known as a Reformist or a Liberal Republican, and placed him squarely at odds with a majority of the Republicans in Congress, the Stalwarts. Led by Senator Roscoe Conkling

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(R, NY), who had opposed Hayes’s nomination for the presidency in 1876, the Stalwarts, so called because they favored the tradition of the spoils system, blocked all of Hayes’s cabinet nominees, selections made on the basis of qualiﬁcations rather than party afﬁliation and without consulting with his fellow Republicans. Though they sought to force Hayes to capitulate to their will, the Stalwarts eventually relented and conﬁrmed the entire slate of nominees when public opinion overwhelmingly shifted to Hayes (Milkis and Nelson 2008, 185–91). Hayes’s battles with the Stalwarts had just begun, however. He appointed independent commissions to investigate suspected corruption in federal customs houses in a number of major port cities. Filling the many positions in the customs houses was controlled by local party organizations that gave the jobs to party loyalists, many of whom were unqualiﬁed. After the commission’s ﬁrst report, President Hayes wrote in a letter to Treasury secretary John Sherman on May 26, 1877: It is my wish that the collection of the revenues should be free from partisan control, and organized on a strictly business basis, with the same guaranties for efﬁciency and ﬁdelity in the selection of the chief and subordinate ofﬁcers. (Williams 1922, 3:435)

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DID YOU KNOW? The Assassination of President Garﬁeld, July 2, 1881, and the Passage of the Civil Service Act President Rutherford B. Hayes (R, OH) fought members of his own party, known as the Stalwarts, and Democrats, to reduce the spoils system’s corrosive inﬂuence and to eliminate assessment. As a Half-Breed Republican, Hayes encountered his stiffest resistance in the Senate, where Roscoe Conkling (R, NY), a leader of the Stalwarts, was determined to preserve the status quo by using senatorial courtesy, through which senators controlled appointments to federal jobs within their states. Senators, at that time selected by the legislatures in most states, controlled federal patronage positions, thereby making senators very powerful ﬁgures within their states’ parties. Hayes succeeded in gaining some momentum toward reform, especially assessment (see document, Hayes’s executive order of 1877), but a major legislative success was denied him by Congress. He was not renominated by his party in 1880; instead, divided Republicans chose a compromise candidate, James A. Garﬁeld. Garﬁeld defeated Democrat Winﬁeld Scott Hancock (PA) in the general election by less than 10,000 votes. Garﬁeld’s ﬁrst important action was to name his cabinet, which he did without consulting the Senate’s leadership. Indeed, Senator Conkling and others had submitted their choices—all Stalwarts—for cabinet posts. Garﬁeld stubbornly refused to concede his power to name his cabinet, while Conkling attempted to defend the tradition of senatorial courtesy. After several months of maneuvering and political intrigue, public anger at the Senate forced the Stalwarts to yield, and the chamber voted to conﬁrm Garﬁeld’s cabinet nominees. In the aftermath of this victory Garﬁeld was shot in July by Charles Guiteau. As newspaper reports made

Changes were eventually made in many cities, but New York City’s custom house resisted reform. About this time, the port brought in approximately twothirds of U.S. tariff revenue and employed over 1,000 (Milkis and Nelson 2008, 187). Hayes decided to remove three top ofﬁcials, including Collector Chester A. Arthur. All were major players in New York’s Republican Party. From his chairmanship of the Commerce Committee, Senator Conkling blocked Hayes’s nominees to replace the three. Not until February 1879 did Hayes’s candidates gain their positions at the customs house. Hayes issued his executive order on assessment and the politicization of federal employees in the midst of his struggles with the Stalwarts. Realizing that he could not win the passage of a civil service reform bill, he issued the executive order that allowed him to bypass Congress and impose his will and governing philosophy on the federal bureaucracy. Hayes’s order went a step beyond that issued by President Harrison, forbidding anyone from coercing a federal employee to participate in campaign activity or assisting in the management or organization of party functions, such as conventions or caucuses. Unlike Harrison’s order, however, Hayes’s did not make such actions a federal crime.

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DID YOU KNOW? clear, Guiteau believed that he should have received a high-level appointment by Garﬁeld. Indeed, Guiteau’s own words in his letters suggested that he believed he was entitled to a position because of his party loyalty. Though mentally unstable, Guiteau understood the political implications of his act. He anticipated Vice President Arthur’s rise to the presidency, and he expected that Arthur, a fellow Stalwart, would reinstitute the spoils system. A shocked and angry nation had other thoughts, however. Upon taking ofﬁce, Arthur championed the reforms long sought ﬁrst by Hayes and then Garﬁeld and oversaw the passage of the Civil Service Act, also known as the Pendleton Act (see document).

Further Reading Ackerman, Kenneth D. 2003. Dark Horse: The Surprising Election and Political Murder of President James A. Garﬁeld. New York: Carroll & Graf.

Hayes fought for his principles during his entire term, but he was not renominated by his party. James Garﬁeld, a compromise nominee, won the election of 1880 but paid dearly for his victory.

FURTHER READING Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Howe, George F. 1957. Chester A. Arthur: A Quarter-Century of Machine Politics. New York: Ungar. Milkis, Sidney M., and Michael Nelson. 2008. The Ameri can Presidency: Origins and Development, 1776–2007. 5th ed. Washington, DC: Congressional Quarterly Press. Shores, Venila S. 1919. “The Hayes-Conkling Controversy.” Smith College Studies in History 4, no. 4:215–79. Williams, Charles R., ed. 1922. Diary and Letters of Rutherford Birchard Hayes: Nineteenth President of the United States. Columbus: Ohio State Archaeological and Historical Society.

• Document: Ex Parte Curtis, 106 U.S. 371 (1882) • Date: Decided December 18, 1882 • Signiﬁcance: By an 8–1 vote, the Supreme Court upheld the constitutionality of the Anti-Assessment Act of 1876 (see document), a federal law that prohibited federal ofﬁcials from soliciting or receiving assessments from federal workers. The Supreme Court concluded that the act was a narrowly drawn measure to eradicate a corrupting inﬂuence on federal elections, political parties, and the federal workforce.

DOCUMENT Ex Parte Curtis, 106 U.S. 371 (1882) Chief Justice Waite delivered the opinion of the Court In the act of August 15, 1876, making appropriations for the legislative, executive, and judicial expenses of the government, the following appears as section 6: “Sec. 6. That all executive ofﬁcers or employees of the United States not appointed by the president, with the advice and consent of the senate, are prohibited from requesting, giving to, or receiving from, any other ofﬁcer or employee of the government any money or property or other thing of value for political purposes; and any such ofﬁcer or employee, who shall offend against the provisions of this section, shall be at once discharged from the service of the United States; and he shall also be deemed guilty of a misdemeanor, and on conviction thereof shall be ﬁned in a sum not exceeding $500.” Curtis, the petitioner, an employee of the United States, was indicted in the circuit court for the southern district of New York, and convicted under this act for receiving 25

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money for political purposes from other employees of the government. . . . The important question . . . is whether the act under which the conviction was had is constitutional. The act is not one to prohibit all contributions of money or property by the designated ofﬁcers and employees of the United States for political purposes. Neither does it prohibit them altogether from receiving or soliciting money or property for such purposes. It simply forbids their receiving from or giving to each other. Beyond this no restrictions are placed on any of their political privileges. That the government of the United States is one of delegated powers only, and that its authority is deﬁned and limited by the constitution, are no longer open questions; but express authority is given Congress by the constitution to make all laws necessary and proper to carry into effect the powers that are delegated. Article 1, 8. Within the legitimate scope of this grant Congress is permitted to determine for itself what is necessary and what is proper. The act now in question is one regulating in some particulars the conduct of certain ofﬁcers and employees of the United States. It rests on the same principle as that originally passed in 1789 at the ﬁrst session of the ﬁrst Congress, which makes it unlawful for certain ofﬁcers of the treasury department to engage in the business of trade or commerce, or to own a sea vessel, or to purchase public lands or other public property, or to be concerned in the purchase or disposal of the public securities of a state, or of the United States, (Rev. St. 243;) and that passed in 1791, which makes it an offense for a clerk in the same department to carry on trade or business in the funds or debts of the states or of the United States, or in any kind of public property, and that passed in 1812, which makes it unlawful for a judge appointed under the authority of the United States to exercise the profession of counsel or attorney, or to be engaged in the practice of the law, and that passed in 1853, which prohibits every ofﬁcer of the United States or person holding any place of trust or proﬁt, or discharging any ofﬁcial function under, or in connection with any executive department of the government of the United States, or under the Senate or House of Representatives, from acting as an agent or attorney for the prosecution of any claim against the United States, and that passed in 1863, prohibiting members of Congress from practicing in the court of claims, and that passed in 1867, punishing, by dismissal from service, an ofﬁcer or employee of the government who requires or requests any working-man in a navy-yard to contribute or pay any money for political purposes, and that passed in 1868, prohibiting members of Congress from being interested in contracts with the United States, and another, passed in 1870, which provides that no ofﬁcer, clerk, or employee in the government of the United States shall solicit contributions from other ofﬁcers, clerks, or employees for a gift to those in a superior ofﬁcial position, and that no ofﬁcials or clerical superiors shall receive any gift or present as a contribution to them from persons in government employ getting a less salary than themselves, and that no ofﬁcer or clerk shall make a donation as a gift or present to any ofﬁcial superior, Many others of a kindred character might be referred to, but these are enough to show what has been the practice in the legislative department of the government from its organization, and, so far as we know, this is the ﬁrst time the constitutionality of such legislation has ever been presented for judicial determination. The evident purpose of Congress in all this class of enactments has been to promote efﬁciency and integrity in the discharge of ofﬁcial duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the just scope

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of legislative power, and it is not easy to see why the act now under consideration does not come fairly within the legitimate means to such an end. It is true, as is claimed by the counsel for the petitioner, political assessments upon ofﬁce-holders are not prohibited. The managers of political campaigns, not in the employ of the United States, are just as free now to call on those in ofﬁce for money to be used for political purposes as ever they were, and those in ofﬁce can contribute as liberally as they please, provided their payments are not made to any of the prohibited ofﬁcers or employees. What we are now considering is not whether Congress has gone as far as it may, but whether that which has been done is within the constitutional limits upon its legislative discretion. A feeling of independence under the law conduces to faithful public service, and nothing tends more to take away this feeling than a dread of dismissal. If contributions from those in public employment may be solicited by others in ofﬁcial authority, it is easy to see that what begins as a request may end as a demand, and that a failure to meet the demand may be treated by those having the power of removal as a breach of some supposed duty, growing out of the political relations of the parties. Contributions secured under such circumstances will quite as likely be made to avoid the consequences of the personal displeasure of a superior, as to promote the political views of the contributor—to avoid a discharge from service, not to exercise a political privilege. The law contemplates no restrictions upon either giving or receiving, except so far as may be necessary to protect, in some degree, those in the public service against exactions through fear of personal loss. . . . If there were no other reasons for legislation of this character than such as relate to the protection of those in the public service against unjust exactions, its constitutionality would, in our opinion, be clear; but there are others, to our minds, equally good. If persons in public employ may be called on by those in authority to contribute from their personal income to the expenses of political campaigns, and a refusal may lead to putting good men out of the service, liberal payments may be made the ground for keeping poor ones in. So, too, if a part of the compensation received for public services must be contributed for political purposes, it is easy to see that an increase of compensation may be required to provide the means to make the contribution, and that in this way the government itself may be made to furnish indirectly the money to defray the expenses of keeping the political party in power that happens to have for the time being the control of the public patronage. Political parties must almost necessarily exist under a republican form of government, and when public employment depends to any considerable extent on party success, those in ofﬁce will naturally be desirous of keeping the party to which they belong in power. The statute we are now considering does not interfere with this. The apparent end of congress will be accomplished if it prevents those in power from requiring help for such purposes as a condition to continued employment. We deem it unnecessary to pursue the subject further. In our opinion the statute under which the petitioner was convicted is constitutional. . . .

Bradley, J., dissenting I cannot concur in the opinion of the court in this case. The law under which the petitioner is imprisoned makes it a penal offense for any executive ofﬁcer or employee of the United States, not appointed by advice of the senate, [an unimportant distinction, so far as the power to make the law is concerned,] to request, give to, or

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receive from, any other ofﬁcer or employee of the government any money, or property, or other thing of value, for political purposes; thus, in effect, making it a condition of accepting any employment under the government, that a man shall not, even voluntarily and of his own free will, contribute in any way through or by the hands of any other employee of the government to the political cause which he desires to aid and promote. I do not believe that Congress has any right to impose such a condition upon any citizen of the United States. The ofﬁces of the government do not belong to the legislative department to dispose of on any conditions it may choose to impose. The legislature creates most of the ofﬁces, it is true, and provides compensation for the discharge of their duties; but that is its duty to do, in order to establish a complete organization of the functions of government. When established, the ofﬁces are, or ought to be, open to all. They belong to the United States, and not to Congress, and every citizen having the proper qualiﬁcations has the right to accept ofﬁce, and to be a candidate therefore. This is a fundamental right of which the legislature cannot deprive the citizen, nor clog its exercise with conditions that are repugnant to his other fundamental rights. Such a condition I regard that imposed by the law in question to be. It prevents the citizen from co-operating with other citizens of his own choice in the promotion of his political views. To take an interest in public affairs, and to further and promote those principles which are believed to be vital or important to the general welfare is every citizen’s duty. It is a just complaint that so many good men abstain from taking such an interest. Among the necessary and proper means for promoting political views, or any other views, are association and contribution of money for that purpose, both to aid discussion and to disseminate information and sound doctrine. To deny to a man the privilege of associating and making joint contributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public affairs. The freedom of speech and of the press, and that of assembling together to consult upon and discuss matters of public interest, and to join in petitioning for a redress of grievances, are expressly secured by the constitution. The spirit of this clause covers and embraces the right of every citizen to engage in such discussions, and to promote the views of himself and his associates freely, without being trammeled by inconvenient restrictions. Such restrictions, in my judgment, are imposed by the law in question. Every person accepting any, the most insigniﬁcant, employment under the government must withdraw himself from all societies and associations having for object the promotion of political information or opinions. For if one ofﬁcer may continue his connection, others may do the same, and thus it can hardly fail to happen that some of them will give and some receive funds mutually contributed for the purposes of the association. Congress might just as well, so far as the power is concerned, impose as a condition of taking any employment under the government, entire silence on political subjects, and a prohibition of all conversation thereon between government employees. Nay, it might as well prohibit the discussion of religious questions, or the mutual contribution of funds for missionary or other religious purposes. In former times, when the slavery question was agitated, this would have been a very convenient law to repress all discussion of the subject on either side of Mason and Dixon’s line. At the present time any efﬁcient connection with an association in favor of a prohibitory liquor law, or of a protective tariff, or of greenback currency, or even for the repression of political assessments, would render any government ofﬁcial obnoxious to the penalties of

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the law under consideration. For all these questions have become political in their character and any contributions in aid of the cause would be contributions for political purposes. The whole thing seems to me absurd. Neither men’s mouths nor their purses can be constitutionally tied up in that way. The truth is that public opinion is oftentimes like a pendulum, swinging backward and forward to extreme lengths. We are not unfrequently in danger of becoming purists, instead of wise reformers, in particular directions, and hastily pass inconsiderate laws which overreach the mark they are aimed at, or conﬂict with rights and privileges that a sober mind would regard as indisputable. It seems to me that the present law, taken in all its breadth, is one of this kind. The legislature may, undoubtedly, pass laws excluding from particular ofﬁces those who are engaged in pursuits incompatible with the faithful discharge of the duties of such ofﬁces. That is quite another thing. The legislature may make laws ever so stringent to prevent the corrupt use of money in elections, or in political matters generally, or to prevent what are called political assessments on government employees, or any other exercise of undue inﬂuence over them by government ofﬁcials and others. That would be all right. That would clearly be within the province of legislation. It is urged that the law in question is intended, so far as it goes, to effect this very thing. Probably it is. But the end does not always sanctify the means. What I contend is that in adopting this particular mode of restraining an acknowledged evil, congress has overstepped its legitimate powers, and interfered with the substantial rights of the citizen. It is not lawful to do evil that good may come. There are plenty of ways in which wrong may be suppressed without resorting to wrongful measures to do it. No doubt it would often greatly tend to prevent the spread of a contagious and deadly epidemic, if those ﬁrst taken should be immediately sacriﬁced to the public good. But such a mode of preventing the evil would hardly be regarded as legitimate in a Christian country. I have no wish to discuss the subject at length, but simply to express the general grounds on which I think the legislation in question is ultra vires. Though as much opposed as any one to the evil sought to be remedied, I do not think the mode adopted is a legitimate or constitutional one, because it interferes too much with the freedom of the citizen in the pursuit of lawful and proper ends. If similar laws have been passed before, that does not make it right. The question is whether the present law, with its sweeping provisions, is within the just powers of congress. As I do not think it is, I dissent from the opinion of the majority of the court.

ANALYSIS The Supreme Court’s ﬁrst ruling on campaign ﬁnance and corruption involved the 1882 arrest of Newton Martin Curtis, a Civil War general and acting New York State Republican Committee treasurer, for violating the 1876 Anti-Assessment Act (see document), a federal statute that prohibited any public ofﬁcer or employee of the federal government “from requesting, giving to, or receiving from, any other ofﬁcer or employee of the government any money or property or other thing of value for political purposes.” Speciﬁcally, the act sought to eradicate assessment, a practice in which federal employees were expected to pay a small percentage of their income to their party, with the possibility of removal for noncompliance. The

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fundamental reason for assessment centered on the expansion of democracy, that is, the rising costs associated with competitive federal campaigns. While the percentage of federal employees being assessed had declined since the practice began, Congress sought to minimize the corruption that was inherent in its use. Government reformers correctly noted that with assessment the primary allegiance of federal ofﬁceholders was not to the common good but was rather to the survival and strength of their political party. Furthermore, the cost of government increased when Congress decided to raise federal salaries to compensate employees for their income lost to assessment, reﬂecting the increased cost of federal campaigns. Assessments, levied by both political parties, were an easy target for a reformminded Congress, and Curtis was the ﬁrst to be arrested. The jury found him guilty and ﬁned him $500. On appeal, Curtis alleged that “the congressional regulation of a government employee raising campaign funds in his capacity as a private citizen was beyond the constitutional power of Congress” (Hohenstein 2007, 22). Writing for an eight-member majority upholding the constitutionality of the statute, Chief Justice Waite ﬁrst noted the narrowness of the act: “The act is not one to prohibit all contributions of money or property by the designated ofﬁcers and employees of the United States for political purposes. Neither does it prohibit them altogether from receiving or soliciting money or property for such purposes. It simply forbids their receiving from or giving to each other.” In other words, the Anti-Assessment Act was narrowly tailored to address speciﬁc instances of corruption. To address Curtis’s claim that Congress was acting outside its constitutional authority, Chief Justice Waite maintained that Congress was seeking “to promote efﬁciency and integrity in the discharge of ofﬁcial duties, and to maintain proper discipline in the public service,” an interest “within the just scope of legislative power.” According to the majority, common sense dictated that, while assessments of federal workers might commence as a request, workers would view assessments as a necessary condition for continued employment. Certainly, Congress had the authority to prohibit practices that made federal workers beholden to the political parties and not the common good. Justice Joseph Bradley, an appointee of President Ulysses S. Grant (1869–1877), dissented, arguing that the Anti-Assessment Act of 1876 violated the fundamental First Amendment right to speech and association. Political campaigns are debates about information and policies, and a campaign contribution is one method of demonstrating support for a political viewpoint. By forbidding federal workers from contributing to federal campaigns, Congress deprived an entire class of people its First Amendment right to free speech. While Justice Bradley could have ended his dissent by focusing exclusively on his views of the First Amendment, he intimated that Congress and the Court were swayed by the maelstrom of public opinion and not legal reasoning. Justice Bradley wrote, The whole thing seems to me absurd. Neither men’s mouths nor their purses can be constitutionally tied up in that way. The truth is that public opinion is oftentimes like a pendulum, swinging backward and forward to extreme lengths. We are not unfrequently in danger of becoming purists, instead of wise reformers, in particular directions, and hastily pass inconsiderate laws which overreach the mark they are aimed at, or conﬂict with rights and privileges that a sober mind would regard as indisputable.

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Though Justice Bradley’s First Amendment concerns and caution over unintended consequences of campaign reform efforts were not shared by a majority of the Court, they do indicate that the Curtis Court’s framing of the issue was strikingly similar to how all campaign ﬁnance reform efforts have played out in American history. On one side of the debate are the reformers calling for limits on campaign contributions or expenditures out of concern for political corruption, while on the other side, free speech absolutists vehemently argue that such measures violate fundamental First Amendment freedoms.

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• Document: The Civil Service (Pendleton) Act • Date: Signed by President Arthur on January 16, 1883 • Signiﬁcance: The Civil Service Act is the ﬁrst major federal legislation to standardize the hiring process for positions in the government while also criminalizing the practice of assessing federal employees.

DOCUMENT The Civil Service Act of 1883 An act to regulate and improve the civil service of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SEC. 1. That the President is authorized to appoint, by and with the advice and consent of the Senate, three persons, not more than two of whom shall be adherents of the same party, as Civil Service Commissioners, and said three commissioners shall constitute the United States Civil Service Commission. Said commissioners shall hold no other ofﬁcial place under the United States. The President may remove any commissioner; and any vacancy in the position of commissioner shall be so ﬁlled by the President, by and with the advice and consent of the Senate, as to conform to said conditions for the ﬁrst selection of commissioners. The commissioners shall each receive a salary of three thousand ﬁve hundred dollars a year. And each of said commissioners shall be paid his necessary traveling expenses incurred in the discharge of his duty as a commissioner. SEC. 2. That it shall be the duty of said commissioners: FIRST. To aid the President, as he may request, in preparing suitable rules for carrying this act into effect, and when said rules shall have been promulgated it shall be the duty of all ofﬁcers of the United States in the departments and ofﬁces to which 32

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any such rules may relate to aid, in all proper ways, in carrying said rules, and any modiﬁcations thereof; into effect. SECOND. And, among other things, said rules shall provide and declare, as nearly as the conditions of good administration will warrant, as follows: First, for open, competitive examinations for testing the ﬁtness of applicants for the public service now classiﬁed or to be classiﬁed hereunder. Such examinations shall be practical in their character, and so far as may be shall relate to those matters which will fairly test the relative capacity and ﬁtness of the persons examined to discharge the duties of the service into which they seek to be appointed. Second, that all the ofﬁces, places, and employments so arranged or to be arranged in classes shall be ﬁlled by selections according to grade from among those graded highest as the results of such competitive examinations. Third, appointments to the public service aforesaid in the departments at Washington shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained at the last preceding census. Every application for an examination shall contain, among other things, a statement, under oath, setting forth his or her actual bona ﬁde residence at the time of making the application, as well as how long he or she has been a resident of such place. Fourth, that there shall be a period of probation before any absolute appointment or employment aforesaid. Fifth, that no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service, and that he will not be removed or otherwise prejudiced for refusing to do so. Sixth, that no person in said service has any right to use his ofﬁcial authority or inﬂuence to coerce the political action of any person or body. Seventh, there shall be non-competitive examinations in all proper cases before the commission, when competent persons do not compete, after notice has been given of the existence of the vacancy, under such rules as may be prescribed by the commissioners as to the manner of giving notice. Eighth, that notice shall be given in writing by the appointing power to said commission of the persons selected for appointment or employment from among those who have been examined, of the place of residence of such persons, of the rejection of any such persons after probation, of transfers, resignations, and removals and of the date thereof, and a record of the same shall be kept by said commission. And any necessary exceptions from said eight fundamental provisions of the rules shall be set forth in connection with such rules, and the reasons there-for shall be stated in the annual reports of the commission. THIRD. Said commission shall, subject to the rules that may be made by the President, make regulations for, and have control of, such examinations, and, through its members or the examiners, it shall supervise and preserve the records of the same; and said commission shall keep minutes of its own proceedings. FOURTH. Said commission may make investigations concerning the facts, and may report upon all matters touching the enforcement and effects of said rules and regulations, and concerning the action of any examiner or board of examiners hereinafter provided for, and its own subordinates, and those in the public service, in respect to the execution of this act. FIFTH. Said commission shall make an annual report to the President for transmission to Congress, showing its own action, the rules and regulations and the exceptions thereto in force, the practical effects thereof, and any suggestions it may approve for the more effectual accomplishment of the purposes of this act.

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SEC. 3. That said commission is authorized to employ a chief examiner, a part of whose duty it shall be, under its direction, to act with the examining boards, so far as practicable, whether at Washington or elsewhere, and to secure accuracy, uniformity, and justice in all their proceedings, which shall be at all times open to him. The chief examiner shall be entitled to receive a salary at the rate of three thousand dollars a year, and he shall be paid his necessary traveling expenses incurred in the discharge of his duty The commission shall have a secretary, to be appointed by the President, who shall receive a salary of one thousand six hundred dollars per annum. It may, when necessary, employ a stenographer, and a messenger, who shall be paid, when employed, the former at the rate of one thousand six hundred dollars a year, and the latter at the rate of six hundred dollars a year. The commission shall, at Washington, and in one or more places in each State and Territory where examinations are to take place, designate and select a suitable number of persons, not less than three, in the ofﬁcial service of the United States, residing in said State or Territory, after consulting the head of the department or ofﬁce in which such persons serve, to be members of boards of examiners, and may at any time substitute any other person in said service living in such State or Territory in the place of anyone so selected. Such boards of examiners shall be so located as to make it reasonably convenient and inexpensive for applicants to attend before them; and where there are persons to be examined in any State or Territory, examinations shall be held therein at least twice in each year. It shall be the duty of the collector, postmaster, and other ofﬁcers of the United States at any place outside of the District of Columbia where examinations are directed by the President or by said board to be held, to allow the reasonable use of the public buildings for holding such examinations, and in all proper ways to facilitate the same. SEC. 4. That it shall be the duty of the Secretary of the Interior to cause suitable and convenient rooms and accommodations to be assigned or provided, and to be furnished, heated, and lighted, at the city of Washington, for carrying on the work of said commission and said examinations, and to cause the necessary stationery and other articles to be supplied, and the necessary printing to be done for said commission. SEC. 5. That any said commissioner, examiner, copyist, or messenger, or any person in the public service who shall willfully and corruptly, by himself or in cooperation with one or more other persons, defeat, deceive, or obstruct any person in respect of his or her right of examination according to any such rules or regulations, or who shall willfully, corruptly, and falsely mark, grade, estimate, or report upon the examination or proper standing of any person examined hereunder, or aid in so doing, or who shall willfully and corruptly make any false representations concerning the same or concerning the person examined, or who shall willfully and corruptly furnish to any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any person so examined, or to be examined, being appointed, employed, or promoted, shall for each such offense be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a ﬁne of not less than one hundred dollars, nor more than one thousand dollars, or by imprisonment not less than ten days, nor more than one year, or by both such ﬁne and imprisonment. SEC. 6. That within sixty days after the passage of this act it shall be the duty of the Secretary of the Treasury, in as near conformity as may be to the classiﬁcation of certain clerks now existing under the one hundred and sixty-third section of the

Chapter 1 • The 19th Century

Revised Statutes to arrange in classes the several clerks and persons employed by the collector, naval ofﬁcer, surveyor, and appraisers, or either of them, or being in the public service, at their respective ofﬁces in each customs district where the whole number of said clerks and persons shall be all together as many as ﬁfty. And thereafter, from time to time, on the direction of the President, said Secretary shall make the like classiﬁcation or arrangement of clerks and persons so employed, in connection with any said ofﬁce or ofﬁces, in any other customs district. And, upon like request, and for the purposes of this act, said Secretary shall arrange in one or more of said classes, or of existing classes, any other clerks, agents, or persons employed under his department in any said district not now classiﬁed; and every such arrangement and classiﬁcation upon being made shall be reported to the President. . . . Second. Within said sixty days it shall be the duty of the Postmaster-General, in general conformity to said one hundred and sixty-third section, to separately arrange in classes the several clerks and persons employed, or in the public service at each post-ofﬁce, or under any post- master of the United States, where the whole number of said clerks and persons shall together amount to as many as ﬁfty. And thereafter, from time to time, on the direction of the President, it shall be the duty of the Postmaster-General to arrange in like classes the clerks and persons so employed in the postal service in connection with any other post-ofﬁce; and every such arrangement and classiﬁcation upon being made shall be reported to the President. Third. That from time to time said Secretary, the Postmaster-General, and each of the heads of departments mentioned in the one hundred and ﬁfty-eighth section of the Revised Statutes, and each head of an ofﬁce, shall, on the direction of the President, and for facilitating the execution of this act, respectively revise any then existing classiﬁcation or arrangement of those in their respective departments and ofﬁces, and shall, for the purposes of the examination herein provided for, include in one or more of such classes, so far as practicable, subordinate places, clerks, and ofﬁcers in the public service pertaining to their respective departments not before classiﬁed for examination. SEC. 7. That after the expiration of six months from the passage of this act no ofﬁcer or clerk shall be appointed, and no person shall be employed to enter or be promoted in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be specially exempted from such examination in conformity herewith. But nothing herein contained shall be construed to take from those honorably discharged from the military or naval service any preference conferred by the seventeen hundred and ﬁfty-fourth section of the Revised Statutes, nor to take from the President any authority not inconsistent with this act conferred by the seventeen hundred and ﬁfty-third section of said statutes; nor shall any ofﬁcer not in the executive branch of the government, or any person merely employed as a laborer or workman, be required to be classiﬁed hereunder; nor, unless by direction of the Senate, shall any person who has been nominated for conﬁrmation by the Senate be required to be classiﬁed or to pass an examination. SEC. 8. That no person habitually using intoxicating beverages to excess shall be appointed to, or retained in, any ofﬁce, appointment, or employment to which the provisions of this act are applicable. SEC. 9. That whenever there are already two or more members of a family in the public service in the grades covered by this act, no other member of such family shall be eligible to appointment to any of said grades.

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Lithograph, “The Bosses of the Senate,” 1889. (Library of Congress, Prints & Photographs Division, LC-USZ62–9678.)

SEC. 10. That no recommendation of any person who shall apply for ofﬁce or place under the provisions of this act which may be given by any Senator or member of the House of Representatives, except as to the character or residence of the applicant, shall be received or considered by any person concerned in making any examination or appointment under this act. SEC. 11. That no Senator, or Representative, or Territorial Delegate of the Congress, or Senator, Representative, or Delegate elect, or any ofﬁcer or employee of either of said houses, and no executive, judicial, military, or naval ofﬁcer of the United States, and no clerk or employee of any department, branch or bureau of the executive, judicial, or military or naval service of the United States, shall, directly or indirectly, solicit or receive, or be in any manner concerned ill soliciting or receiving, any assessment, subscription, or contribution for any political purpose whatever, from any ofﬁcer, clerk, or employee of the United States, or any department, branch, or bureau thereof, or from any person receiving any salary or compensation from moneys derived from the Treasury of the United States. SEC. 12. That no person shall, in any room or building occupied in the discharge of ofﬁcial duties by any ofﬁcer or employee of the United States mentioned in this act, or in any navy-yard, fort, or arsenal, solicit in any manner whatever, or receive any contribution of money or any other thing of value for any political purpose whatever. SEC. 13. No ofﬁcer or employee of the United States mentioned m this act shall discharge, or promote, or degrade, or in manner change the ofﬁcial rank or compensation of any other ofﬁcer or employee, or promise or threaten so to do, for giving

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or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose. SEC. 14. That no ofﬁcer, clerk, or other person in the service of the United States shall, directly or indirectly, give or hand over to any other ofﬁcer, clerk, or person in the service of the United States, or to any Senator or Member of the House of Representatives, or Territorial Delegate, any money or other valuable thing on account of or to be applied to the promotion of any political object whatever. SEC. 15. That any person who shall be guilty of violating any provision of the four foregoing sections shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by a ﬁne not exceeding ﬁve thousand dollars, or by imprisonment for a term not exceeding three years, or by such ﬁne and imprisonment both, in the discretion of the court.

ANALYSIS It took the assassination of President James A. Garﬁeld to shake the American people from their complacency and demand an end to the spoils system. The reform-minded Garﬁeld’s death at the hands of Charles Guiteau, a deranged and extremely partisan Stalwart Republican, who expected a federal job, galvanized public opinion. Garﬁeld’s vice president, Chester A. Arthur, himself a Stalwart, found it politically expedient to pursue a re- George Hunt Pendleton, Congressman from Ohio, 1850s–1860s. (Brady-Handy Photograph Collection, form agenda. Library of Congress, Prints & Photographs Division, Garﬁeld was a moderate Republican and the compromise LC-DIG-cwpbh-02930.) candidate of the Republican convention in 1880. Once elected, however, he battled the Stalwarts in the Senate for control over appointments to his cabinet and to a number of other major federal posts. Of particular interest was the customs collector for the Port of New York to which Garﬁeld had nominated William Robertson, an ally of Senator James G. Blaine (R, ME) and bitter enemy of Senator Roscoe Conkling (R, NY). By the start of the summer of 1881, Garﬁeld had succeeded in breaking the Stalwart stranglehold on the Senate, and his cabinet nominees were conﬁrmed. But when Vice President Chester A. Arthur, an apparently loyal Stalwart and close associate of Conkling, succeeded to the presidency, most people assumed he would revert to politics as usual and reinstitute the spoils system. Though he may have been predisposed to follow Conkling’s direction, Arthur was nothing if not an astute politician. Conkling’s effort to pressure Arthur to remove Robertson as New York’s customs collector and replace him with a Conkling protégé was too much for the new president to accept, and he said as much in his ﬁrst State of the Union address in 1882 (Milkis and Nelson 2008, 189–91). When the 1882 elections brought many new Democrats to Congress, Arthur, in his next State of the Union speech, endorsed a bill that had been introduced by Senator George H. Pendleton (D, OH) in 1881: the Civil Service Act. With Arthur’s support, the bill passed Congress with relative ease. The act empowered the president to nominate three members to a Civil Service Commission with the Senate conﬁrming them. The act also required that the

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DID YOU KNOW? The Omaha Platform of the People’s Party The People’s Party, later known as the Populist Party, declared itself a party at its Omaha convention on July 4, 1892. It was dedicated to protecting the rights of working people and farmers and to reforming the political system by, among other things, removing the inﬂuence of money on elections and government. The party’s roots were in alliances of small farmers in the South and Great Plains in the 1870s and 1880s. Radicalized farmers, angry with their treatment at the hands of banks and railroads, sought help from their state lawmakers and U.S. congressmen, but received none, and they attributed the lack of responsiveness to the inﬂuence of money. They believed that big businesses controlled the votes of legislators through contributions to the two main political parties. Rather than continue working through existing parties, the alliances united in 1892 to form the People’s Party. While much of its platform addressed economic reforms, there were particular items related to election and governmental improvements: the direct election of the president, vice president, and U.S. senators; a one-term limit for the president and vice president; the adoption of initiative and referendum; adoption of the Australian, or secret, ballot; and an open and fair hiring system to ﬁll government positions. Though the Populist Party was never successful in national elections, its candidates did win ofﬁces at the state and local levels through the turn of the 20th century. It eventually disintegrated, however, as many of its principles were adopted by the Progressive movement, a far larger and more diverse association that had supporters in both major parties. But Progressives in state and federal government succeeded in winning passage of many of the Populist causes, such as direct election of U.S. senators and the adoption of the secret ballot.

Further Reading Drew, Frank M. 1891. “The Present Farmers’ Movement.” Political Science Quarterly 6, no. 2:282–310. Goodwyn, Lawrence. 1978. The Populist Moment: A Short History of the Agrarian Revolt in America. New York: Oxford University Press. Hicks, John D. 1931. The Populist Revolt: A History of the Farmers’ Alliance and the People’s Party. Minneapolis: University of Minnesota Press. Scott, Roy V. 1958. “Milton George and the Farmers’ Alliance Movement.” Mississippi Valley Historical Review 45, no. 1:90–109.

commission’s membership be bipartisan, something unprecedented for the time. The president could remove a commissioner at his discretion, but vacancies had to be ﬁlled so that bipartisanship was retained. The commission was tasked to prepare examinations for all federal positions under its jurisdiction, to create classes of ofﬁce based on work requirements, and to ensure the residency of applicants. Assessment of federal employees covered by the commission was forbidden. Employees could not be removed from their jobs or coerced with threats of removal for partisan reasons. The act also made it a crime for an applicant to cheat on a civil service examination or for a person to assist an applicant in cheating. The Treasury Department and Postal Service were the ﬁrst two departments named in the act to have some of their positions fall under the jurisdiction of the commission. The commission was required to develop position classiﬁcations (job descriptions), create appropriate examinations, post vacant position notiﬁcations publicly, and report to the president on its progress ﬁlling positions. Alcoholics were speciﬁcally excluded from public employment, and in an attempt to limit nepotism, no more than two members of the same family could be hired in the same ofﬁce. Congressmen could not offer the names of people to be hired. Anyone caught violating the act’s provisions could be punished with three years in prison and a ﬁne. Though the act’s provisions covered only a small percentage of all federal employees in 1883, it did permit the president to expand the commission’s jurisdiction by executive order, thereby further reducing patronage’s inﬂuence. But partisanship continued to bedevil staffing of the federal bureaucracy with the election of Democrat Grover Cleveland (NY) in 1884, a Bourbon, or conservative Democrat, who believed in the principles of Jacksonism, especially the spoils system (Milkis and Nelson 2008, 192–95). One unintended consequence of the act was that, as it reduced the ﬂow of contributions to the parties from federal employees, the parties turned to wealthy individuals and businesses for direct contributions of even larger amounts. Millionaires such as John J. Astor, Andrew Carnegie, Jay Gould, Russell Sage and oil, railroad, and banking companies gave tens of thousands of dollars directly to parties and candidates, all perfectly legal under the law (Thayer 1973).

Chapter 1 • The 19th Century

FURTHER READING Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Keller, Morton. 1977. Affairs of State: Public Administration in Late Nineteenth Century America. Cambridge, MA: Harvard University Press. Milkis, Sidney M., and Michael Nelson. 2008. The American Presidency: Origins and Development, 1776–2007. Washington, DC: Congressional Quarterly Press Thayer, George. 1973. Who Shakes the Money Tree? American Campaign Financing Practices from 1789 to the Present. New York: Simon & Schuster.

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2 1900 TO 1939 The start of a new century did not bring an end to the demands of reformers or the general public for curtailing the unseemly inﬂuence of big money on elections, candidates, and their campaigns. With every federal election—presidential and congressional—from 1880 forward there were questions about whether and how elected ofﬁcials’ behaviors were altered by large cash contributions from the nation’s millionaires and largest businesses and industries. As the documents from the 19th century reveal, attempts by presidents, Congresses, and several states to ban assessment and to disclose campaign contributions were modestly successful at best. But stronger, more meaningful legislation restricting the sources and expenditures of campaign funds as well as requiring the publication of campaign ﬁnance reports was needed after additional scandals ignited public outrage. As Republicans and Democrats continued operating their campaigns as they always had despite new rules, it wasn’t long before fresh allegations of corruption emerged. The Tillman Act of 1907 (see document) was Congress’s ﬁrst attempt to curb direct donations to candidates from corporations, and it was passed in response to charges and countercharges by both major parties that their presidential candidates had accepted large donations from corporations and fat cats in exchange for supporting their interests before Congress. In United States v. U.S. Brewers’ Association, 239 F. 163 (1916) (see document), a federal district court upheld the Tillman Act against a constitutional challenge ﬁled by corporations, citing the need for clean, corruption-free elections. Pressure to pass additional reform legislation mounted as New York’s Armstrong Committee investigated the insurance industry’s campaign contributions, uncovering more dubious conduct. Congress responded with the Federal Corrupt Practices Act of 1910 (also called the Publicity Act) that required only candidates for the House of Representatives to disclose donor names and amounts of their contributions after elections. The act’s shortcomings were obvious, and when the Democrats gained control of the House following the 1910 elections, they pushed through amendments to the Publicity Act, which required all federal candidates to publicize their contributors and expenditures before and after their primary and general elections (see document Federal Corrupt Practices Act Amendments of 1911). Congress’s pro-reform agenda met resistance in the courts. In United States v. Gradwell, 243 U.S. 476 (1917) (see document), the Supreme Court ruled that the federal criminal code did not permit the Justice Department to indict 20 people who had conspired to engage in voter fraud in a West Virginia Senate primary election,

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and the Court did not even entertain the argument that the Federal Corrupt Practices Act of 1911 allowed the federal government to regulate primaries. The Court took up this argument in Newberry v. United States, 256 U.S. 232 (1921), in which it ruled that Congress could not regulate primary elections. Radio as a mass medium was in its infancy in the ﬁrst decades of the 20th century, but many realized its potential to reach large numbers of people quickly and cheaply. For candidates it would be a means of advertising, and for government leaders it would be a tool for shaping public opinion. Congress moved hesitantly to regulate the medium with the passage of the Radio Act of 1912. The law empowered the secretary of Commerce to license broadcasters in order to control the distribution of the limited number of radio frequencies. The broad discretionary authority assigned to the secretary was challenged in federal district court twice, and federal judges declared that the secretary’s powers were unconstitutional. In response to the courts’ decisions, Congress passed the Radio Act of 1927 (see document), which balanced Republican and Democratic concerns about regulating this important medium. It created the Federal Radio Commission and assigned it the power to issue licenses and regulate broadcasters. Congress updated and improved the legislation when it passed the Federal Communications Act of 1934 (see document). While the constitutionality of the Radio Act never reached the Supreme Court, the Court of Appeals for the District of Columbia issued three rulings in three years that upheld the constitutionality of the act. In Great Lakes Broadcasting Co. v. Federal Radio Commission, 59 App. D.C. 197 (1930), KFKB Broadcast Association, Inc. v. Federal Radio Commission, 60 App. D.C. 79 (1931), and Trinity Methodist Church, South v. Federal Radio Commission, 61 App. D.C. 311 (1932) (see documents), the appeals court upheld the Federal Radio Commission’s right to regulate the radio airwaves in the public interest. These decisions provided the legal support for the Federal Radio Commission’s equal time rule, which had a profound impact on campaigns and elections. In 1922 news ﬁrst emerged of a special lease agreement between the Department of Interior and several oil companies, an event that came to be called the Teapot Dome Scandal. Its profound effect on public opinion cannot be overstated. Besides the Federal Corrupt Practices Act of 1925 (see document), the scandal provided ammunition for reformers for decades into the future as an example of the perverse inﬂuence of money on politics. The Supreme Court’s changing composition also led to a jurisprudential shift, with the Court now upholding congressional efforts to regulate the electoral process, such as the Federal Corrupt Practices Act of 1925. In Burroughs and Cannon v. United States, 290 U.S. 534 (1934), the Court upheld the constitutionality of the Federal Corrupt Practices Act, ruling that Congress was acting to protect the integrity of our vital institutions by passing this campaign ﬁnance legislation. In Whitney v. California, 274 U.S. 357 (1927), a seed was planted that would later grow into Supreme Court doctrine that had a profound impact on ballot access rules. At issue in Whitney was the constitutionality of a California antisyndicalism act, which prohibited individuals from joining organizations advocating the overthrow of the government. In a concurring opinion, Justice Brandeis outlined his First Amendment theory, the free marketplace of ideas, which later became controlling First Amendment doctrine. In the context of elections, this doctrine meant that states could not deny ballot access to political parties on the basis of the popularity of their opinions.

Chapter 2 • 1900 to 1939

In the midst of its response to the Great Depression, Congress passed the Public Utilities Holding Company Act (PUHCA) in 1935 to regulate electric and gas utilities and the holding companies that owned them. Included in the legislation were provisions that banned these enterprises from contributing to any person seeking any ofﬁce, both elected and appointed, at any level of government and that severely restricted these entities from lobbying Congress.

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• Document: An Act to Prohibit Corporations from Making Money Contributions in Connection with Political Elections (the Tillman Act) • Date: Signed into law by President Theodore Roosevelt, January 26, 1907 • Signiﬁcance: The Tillman Act was the ﬁrst federal statute to restrict direct contributions by businesses and national banks to candidates seeking federal ofﬁce. While deemed largely ineffective in limiting the inﬂuence of money on elections, it established a model for future federal regulatory legislation.

DOCUMENT An Act to Prohibit Corporations from Making Money Contributions in Connection with Political Elections The Tillman Act 34 Stat. 864; 18 U.S.C. §610 An Act to prohibit corporations from making money contributions in connection with political elections. Be it enacted, That it shall be unlawful for any national bank, or any corporation organized by authority of any laws of Congress, to make a money contribution in connection with any election to any political ofﬁce. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any election by any State legislature of a United States Senator. Every corporation which shall make any contribution in violation of the foregoing provisions shall be subject to a ﬁne not exceeding ﬁve thousand dollars, 44

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and every ofﬁcer or director of any corporation who shall consent to any contribution by the corporation in violation of the foregoing provisions shall upon conviction be punished by a ﬁne of not exceeding one thousand and not less than two hundred and ﬁfty dollars, or by imprisonment for a term of not more than one year, or both such ﬁne and imprisonment in the discretion of the court.

ANALYSIS The role of millionaires and large corporations in ﬁnancing America’s elections emerged as a national issue following the 1896 presidential election in which the Republican candidate, McKinley, and his manager, Mark Hanna, raised approximately $7 million, far more than his Democratic opponent, William Jennings Bryan. The public demanded federal and state legislation to regulate corporate donors and the size of their contributions. In response, several states passed publicity, or disclosure, acts, while four states prohibited direct corporate contributions to candidates. No bills cleared Congress, leaving McKinley and Hanna free to conduct their 1900 campaign as they did in 1896, and “Dollar” Mark Hanna, cartoon by Homer Davenport. (Caroline & Erwin Swann Collection of Caricature & Cartoons, Library of Congress, McKinley once again was triumphant over Bryan. Prints & Photographs Division, LC-USZ62–67546.) McKinley’s assassination in September 1901 brought his vice president, Theodore Roosevelt, into the Oval Ofﬁce. TR was sympathetic to the views of the Progressive movement, and he was familiar with many of its leading writers, such as Herbert Croly. Progressives argued for reforms to bring government under greater public control (as opposed to its perceived control by big business) and a stronger and more active national government to protect the people from capitalism’s excesses. Investigative journalists, known as muckrakers, sought to expose corruption in business and government, and they were successful in stoking public anger, which provided fertile ground for planting the seeds for reform legislation. Senator William Chandler (R, NH) introduced a bill late in 1901 that proposed limiting contributions to any candidate running for ofﬁce at any level from all federally chartered corporations and all businesses engaged in interstate commerce. The measure also restricted all corporations from making direct contributions to congressional candidates. The bill cleared the Elections committee, but died before reaching the Senate ﬂoor. Chandler was not returned to the Senate by his state legislature in 1902, but he convinced Senator Benjamin R. Tillman (D, SC) to take up the cause (Mutch 1988, 5). During the election of 1904, Roosevelt was accused by his Democratic opponent, Alton B. Parker (NY), and New York papers sympathetic to Parker of accepting large donations from corporations in exchange for promises to block the Justice Department

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from taking antitrust action against them. Roosevelt vigorously denied the allegations and went on to win the election handily, but public agitation grew for reform. In his message to Congress on December 6, 1904, Roosevelt called for federal legislation: The power of the Government to protect the integrity of the elections of its own ofﬁcials is inherent and has been recognized and afﬁrmed by repeated declarations of the Supreme Court. There is no enemy of free government more dangerous and none so insidious as the corruption of the electorate. . . . I recommend the enactment of a law directed against bribery and corruption in Federal elections. The details of such a law . . . should include severe penalties against him who gives or receives a bribe intended to inﬂuence his act or opinion as an elector; and provisions for the publication not only of the expenditures for nominations and elections of all candidates but also of all contributions received and expenditures made by political committees. (http://www. presidency.ucsb.edu/ws/index.php?pid=29545#axzz1IiSq4dx9) Roosevelt’s request went unheeded by Congress, but Senator Edward W. Carmack (D, TN) introduced a bill to create a commission to probe the allegations of inappropriate contributions during the 1896, 1900, and 1904 elections. His bill died in the Senate (Pollock 1926, 11). In 1905, however, the New York state legislature formed the Armstrong Commission, named for Republican state senator William W. Armstrong, to investigate charges of improper political activity by the insurance industry. Held over several months, the hearings exposed hefty contributions to the Republican Party and its candidates, including Roosevelt, by three of the largest companies, New York Life, Mutual, and Equitable Life. In one notable exchange between Charles Evan Hughes, the commission’s chief counsel, and George W. Perkins, New York Life’s vice president and a partner of J. P. Morgan, Perkins claimed that the company’s contributions were “an absolutely legitimate thing for us to do to protect the securities of these hundreds of thousands of people everywhere” (Mutch 1988, 2). Feeling even greater pressure, Roosevelt again urged Congress in his message of December 5, 1905, to pass legislation: I desire to repeat this recommendation. In political campaigns in a country as large and populous as ours it is inevitable that there should be much expense of an entirely legitimate kind. . . . It is entirely proper both to give and receive them, unless there is an improper motive connected with either gift or reception. If they are extorted by any kind of pressure or promise, express or implied, direct or indirect, in the way of favor or immunity, then the giving or receiving becomes not only improper but criminal. . . . All contributions by corporations to any political committee or 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. Not only should both the National and the several State Legislatures forbid any ofﬁcer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation save by the employment of counsel in public manner for

Chapter 2 • 1900 to 1939

distinctly legal services. (http://www.presidency.ucsb. edu/ws/index.php?pid=29546#axzz1IiSq4dx9)

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DID YOU KNOW?

Two days later, Senator Tillman introduced a resoThe Federal Corrupt Practices Act (the Publicity lution to initiate congressional investigations of all Act) of 1910, 36 Stat. 822 presidential elections since 1896. He also reintroduced Chandler’s bill in March 1906. The committees’ hearPassage of the Tillman Act (see document) did not halt ings uncovered nothing, and his bill stalled for lack of efforts for additional campaign reforms. Relentlessly action (Mutch 1988, 5). searching for ways to embarrass President Theodore The revelations from the Armstrong Commission Roosevelt and old guard (or Stalwart) Republicans, congressional Democrats joined forces with Progressive (or galvanized Progressives and other reformers, and they Insurgent) Republicans to advance a bill requiring discame together to form the National Publicity Bill Orclosure (or publicity) of donors and the amount of their ganization (NPBO). Led by Perry Belmont, Eltwood gifts to all candidates. As more information emerged Pomeroy, Herbert Croly, and Elihu Root, Roosevelt’s about the large donations made by businesses and milsecretary of state, its ﬁrst meeting was held on Janulionaires to candidates of both parties, but particularly ary 17, 1906, where it issued a statement that demanded Republicans, the muckrakers and reform advocacy groups like the National Publicity Bill Organization full disclosure of all sources of contributions to parties fanned public discontent. Bills were introduced beginand candidates and a complete accounting by parties ning in 1908 by Representative Samuel McCall (R, MA) and candidates of all campaign expenditures (Mutch and by Senator Benjamin Tillman (D, SC) that required 1988, 9). political committees operating in two or more states to With pressure from the NPBO, muckrakers, and disclose their donor lists and the amount of their conthe president, Congress ﬁnally considered campaign ﬁtributions both before and after House elections only. While the bill cleared the House, it failed in the Senate. nance regulation in 1906, and by the end of the year, In 1910 McCall reintroduced a bill crafted by Reprethe House had passed a bill but the Senate had not. sentative George Norris (R, NE) in 1908, and it passed Roosevelt’s State of the Union statement of Decemthe House on April 18, 1910. The Senate passed it, but ber 3, 1906, reiterated his support for limiting corporate only after removing the preelection disclosure requirecampaign contributions. ment. The Federal Corrupt Practices Act was signed by In January 1907 support coalesced around Tillman’s President Robert Taft (R, OH) on June 25 (Mutch, 9–12; LaRaja, 52). The act was aimed at the national politibill. Its main provisions were a ban on all corporate cal party committees and their congressional campaign contributions to candidates in all elections, federal and committees, that is, the House committees maintained state. Opponents of the bill challenged its constitutionby each party whose purpose it was (and is to this day) ality, arguing that the federal government lacked the to help members of their parties with fund-raising and authority to regulate state elections, as well as claiming technical expertise. Inclusion of the congressional camthat the act unfairly targeted corporations. The bill was paign committees was signiﬁcant, as both parties had amended to apply only to federal elections, and it passed Congress (Hohenstein 2007, 71). The Tillman Act was, in reality, a small ﬁrst step in limiting the inﬂuence of money in elections. TR undoubtedly recognized the act’s shortcomings, for he recommended a more dramatic reform—public ﬁnancing—in his 1907 State of the Union message that was likely inﬂuenced by a bill introduced in 1904 by Representative William B. Cockran (D, NY), the ﬁrst to propose public funding of federal elections but which died in the House (see Mutch 1988; LaRaja 2008): There is a very radical measure which would, I believe, work a substantial improvement in our system of conducting a campaign, although I am well aware that it will take some time for people so to familiarize themselves with such a proposal as to be willing to consider its adoption. The need for collecting large campaign funds would vanish if Congress provided an appropriation for the

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DID YOU KNOW? created the committees in an attempt to evade public scrutiny. Individual candidates’ campaign committees were exempt from the act. Section two required that each committee appoint a chairman and treasurer, with the treasurer compelled to maintain records of all contributors, the exact dollar amount of their contributions, and all expenditures made for campaign purposes. Payments to campaign workers could not be made until the campaign’s chairman and treasurer had been named, an important caveat designed to prevent candidates from compensating workers off the books. Some of the act’s shortcomings were overcome when the 1911 Publicity Act was passed (see document).

proper and legitimate expenses of each of the great national parties, an appropriation ample enough to meet the necessity for thorough organization and machinery, which requires a large expenditure of money. Then the stipulation should be made that no party receiving campaign funds from the Treasury should accept more than a ﬁxed amount from any individual subscriber or donor; and the necessary publicity for receipts and expenditures could without difﬁculty be provided. (http://www.presidency.ucsb.edu/ws/index. php?pid=29548#axzz1IiSq4dx9)

The act’s weaknesses were signiﬁcant. It banned only direct contributions from national banks and federally chartered or incorporated businesses, and it therefore had no effect on state banks or businesses incorporated Further Reading by the states, of which there were many. It also failed Hohenstein, Kurt. 2007. Coining Corruption: The Makto limit contributions by individuals, a considerable ing of the American Campaign Finance System. loophole that would be exploited continually until the DeKalb: Northern Illinois University Press. passage of the 1974 amendments to the Federal ElecLaRaja, Raymond J. 2008. Small Change: Money, Potion Campaign Act (see document). Many argue that litical Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press. the Tillman Act was undermined when the Supreme Mutch, Robert E. 1988. Campaigns, Congress, and Court rendered its decision in Citizen’s United v. Federal Courts: The Making of Federal Campaign Finance Election Commission (2010). While the act’s ban on diLaw. New York: Praeger. Pollock, James. K. 1926. Party Campaign Funds. New rect corporate contributions to candidates still stands, York: Knopf. the decision nixed a long-standing law that prohibited corporations from spending their general treasury funds on campaigns. Some reformers believe that the Court’s rationale in protecting corporate independent expenditures from restriction could be used to strike down the Tillman contribution limits as well.

FURTHER READING Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. LaRaja, Raymond J. 2008. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press. Mutch, Robert E. 1988. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law. New York: Praeger. Pollock, James. K. 1926. Party Campaign Funds. New York: Knopf. Thayer, George. 1973. Who Shakes the Money Tree? American Campaign Financing Practices from 1789 to the Present. New York: Simon & Schuster.

• Document: The Federal Corrupt Practices Act of 1911, also known as the Amendments to the Publicity Act of 1910, and the 1911 Publicity Act • Date: Signed into law by President William H. Taft on August 19, 1911 • Signiﬁcance: These amendments to the Publicity Act of 1910 expanded its coverage by requiring that individual House and Senate candidates, as well as party committees, disclose the names and addresses of their donors and the size of their contributions, requiring that they issue campaign reports before the election as well as after, and limiting the campaign expenditures of all congressional candidates.

DOCUMENT The Federal Corrupt Practices Act of 1911, 37 Stat. 25 An Act to amend an act entitled “An act providing for publicity of contributions made for the purpose of inﬂuencing elections at which Representatives in Congress are elected” and extending the same to candidates for nomination and election to the ofﬁces of Representative and Senator in the Congress of the United States and limiting the amount of campaign expenses. Be it enacted, That sections ﬁve, six, and eight of an Act entitled “An Act providing for publicity of contributions made for the purpose of inﬂuencing elections at which Representatives in Congress are elected,” . . . be . . . amended to read as follows: SEC. 5. That the treasurer of every such political committee shall, not more than ﬁfteen days and not less than ten days next before an election at which Representatives in Congress are to be elected in two or more States, ﬁle in the ofﬁce of the Clerk 49

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of the House of Representatives at Washington, District of Columbia, with said Clerk, an itemized detailed statement; and on each sixth day thereafter until such election said treasurer shall ﬁle with said Clerk a supplemental itemized detailed statement. Each of said statements shall conform to the requirements of the following section of this Act, except that the supplemental statement herein required need not contain any item of which publicity is given in a previous statement. Each of said statements shall be full and complete, and shall be signed and sworn to by said treasurer. “It shall also be the duty of said treasurer to ﬁle a similar statement with said Clerk within thirty days after such election, such ﬁnal statement also to be signed and sworn to by said treasurer and to conform to the requirements of the following section of this Act. The statements so ﬁled with the Clerk of the House shall be preserved by him for ﬁfteen months and shall be a part of the public records of his ofﬁce and shall be open to public inspection. SEC. 6. That the statements required by the preceding section of this Act shall state: “First. The name and address of each person, ﬁrm, association, or committee who or which has contributed, promised, loaned, or advanced to such political committee, or any ofﬁcer, member, or agent thereof, either in one or more items, money or its equivalent of the aggregate amount or value of one hundred dollars or more, and the amount or sum contributed, promised, loaned, or advanced by each, . . . “Third. The total sum of all contributions, promises, loans, and advances received by such political committee or any ofﬁcer, member, or agent thereof, . . . SEC. 8. The word ‘candidate’ as used in this section shall include all persons whose names are presented for nomination for Representative or Senator in the Congress of the United States at any primary election or nominating convention, or for indorsement or election at any general or special election held in connection with the nomination or election of a person to ﬁll such ofﬁce, whether or not such persons are actually nominated, indorsed, or elected. “Every person who shall be a candidate for nomination at any primary election or nominating convention, or for election at any general or special election, as Representative in the Congress of the United States, shall, not less than ten nor more than ﬁfteen days before the day for holding such primary election or nominating convention, and not less than ten nor more than ﬁfteen days before the day of the general or special election at which candidates for Representatives are to be elected, ﬁle with the Clerk of the House of Representatives at Washington, District of Columbia, a full, correct, and itemized statement of all moneys and things of value received by him or by anyone for him with his knowledge and consent, from any source, in aid or support of his candidacy together with the names of all those who have furnished the same in whole or in part; and such statement shall contain a true and itemized account of all moneys and things of value given, contributed, expended, used, or promised by such candidate, or by his agent, representative, or other person for and in his behalf with his knowledge and consent, together with the names of all those to whom any and all such gifts, contribution, payments, or promises were made, for the purpose of procuring his nomination or election. “Every person who shall be a candidate for nomination at any primary election or nomination convention, or for indorsement at any general or special election or election by the legislature of any State, as Senator in the Congress of the United States, shall, not less than ten nor more than ﬁfteen days before the day for holding such

Chapter 2 • 1900 to 1939

primary election or nominating convention, and not less than ten nor more than ﬁfteen days before the day of the general or special election at which he is seeking indorsement, and not less than ﬁve nor more than ten days before the day upon which the ﬁrst vote is to be taken in the two houses of the legislature before which he is a candidate for election as Senator, ﬁle with the Secretary of the Senate at Washington, District of Columbia, a full, correct, and itemized statement of all moneys and things of value received by him or by anyone for him with his knowledge and consent, from any source, in aid or support of his candidacy, together with the names of all those who have furnished the same in whole or in part; and such statement shall contain a true and itemized account of all moneys and things of value given, contributed, expended, used, or promised by such candidate, or by his agent, representative, or other person for and in his behalf with his knowledge and consent, together with the names of all those to whom any and all such gifts, contribution, payments, or promises were made for the purpose of procuring his nomination or election. “Every such candidate for nomination at any primary election or nominating convention, or for indorsement or election at any general or special election, or for election by the legislature of any State, shall, within ﬁfteen days after such primary election or nominating convention, and within thirty days after any such general or special election, and within thirty days after the day upon which the legislature shall have elected a Senator, ﬁle with the Clerk of the House of Representatives or with the Secretary of the Senate, as the case may be, a full, correct, and itemized statement of all moneys and things of value received by him or by anyone for him with his knowledge and consent, from any source, in aid or support of his candidacy, together with the names of all those who have furnished the same in whole or in part; and such statement shall contain a true and itemized account of all moneys and things of value given, contributed, expended, used, or promised by such candidate, or by his agent, representative, or other person for and in his behalf with his knowledge and consent, up to, on and after the day of such primary election, nominating convention, general or special election, or election by the legislature, together with the names of all those to whom any and all such gifts, contributions, payments, or promises were made for the purpose of procuring his nomination, indorsement, or election. “Every such candidate shall include therein a statement of every promise or pledge made by him, or by any one for him with his knowledge and consent or to whom he has given authority to make any such promise or pledge, before the completion of any such primary election or nominating convention or general or special election or election by legislature, relative to the appointment or recommendation for appointment of any person to any position of trust, honor, or proﬁt, either in the county, State, or Nation, or in any political subdivision thereof, or in any private or corporate employment, for the purpose of procuring the support of such person or of any person in his candidacy, and if any such promise or pledge shall have been made the name or names, the address or addresses, and the occupation or occupations, of the person or persons to whom such promise or pledge shall have been made, shall be stated, together with a description of the position relating to which such promise or pledge has been made. In the event that no such promise or pledge has been made by such candidate, that fact shall be distinctly stated. “No candidate for Representative in Congress or for Senator of the United States shall promise any ofﬁce or position to any person, or to use his inﬂuence or to give his support to any person for any ofﬁce or position for the purpose of procuring the

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support of such person, or of any person, in his candidacy; nor shall any candidate for Senator of the United States give, contribute, expend, use, or promise any money or thing of value to assist in procuring the nomination of election of any particular candidate for the legislature of the State in which he resides, but such candidate may, within the limitation and restrictions and subject to the requirements of this act, contribute to political committees having charge of the disbursement of campaign funds. “No candidate for Representative in Congress or for Senator of the United States shall give, contribute, expend, use, or promise, or cause to be given, contributed, expended, used, or promised, in procuring his nomination and election, any sum, in the aggregate, in excess of the amount which he may lawfully give, contribute, expend, or promise under the laws of the State in which he resides: Provided, That no candidate for Representative in Congress shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding ﬁve thousand dollars in any campaign for his nomination and election; and no candidate for Senator of the United States shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding ten thousand dollars in any campaign for his nomination and election: Provided further, That money expended by any such candidate to meet and discharge any assessment, fee, or charge made or levied upon candidates by the laws of the State in which he resides, or for his necessary personal expenses, incurred for himself alone, for travel and subsistence, stationery and postage, writing or printing (other than in newspapers), and distributing letters, circulars, and posters, and for telegraph and telephone service, shall not be regarded as an expenditure within the meaning of this section, and shall not be considered any part of the sum herein ﬁxed as the limit of expense and need not be shown in the statements herein required to be ﬁled. . . .”

ANALYSIS Expanding the requirements in the Publicity Act of 1910 was greatly facilitated by the 1910 congressional elections, in which Democrats won control of the House while also gaining Senate seats. Democrats were eager to exploit continuing accounts of Republican presidential and congressional candidates receiving donations of hundreds of thousands of dollars from fat cats, exceptionally wealthy individuals, in every election since 1896. Democrats were convinced that had the public been aware of who was giving what to Republican candidates in advance of these elections, voter indignation would have brought Democratic victories. At its ﬁrst meeting, the House Democratic caucus announced its desire to move quickly for preelection disclosure reports. An opportunity arose when President William Taft called for a special congressional session in April 1911 to consider a tariff arrangement with Canada, and Speaker James B. “Champ” Clark (D, MO) seized it. On the session’s ﬁrst day, the Speaker allowed identical bills on the subject to be introduced by Representative William “Judge” Rucker (D, MO), chairman of the Election Committee, and Representative Samuel McCall (R, MA), a Progressive Republican (Mutch, 12). Rucker quickly moved the bill through his committee, but he was challenged on the House ﬂoor by Republicans, some seeking more regulation to reduce the

Chapter 2 • 1900 to 1939

corrupting inﬂuence of campaign money, others simply hoping to kill the bill by presenting amendments DID YOU KNOW? designed to divide Democrats. Representative Fred S. Jackson (R, KS) offered an amendment to extend reThe Radio Act of 1912, PL 62-264 porting requirements to primary and general House elections for all candidates, even those operating their Before the invention of the radio, mass circulation newsown committee in a single state (something not covered papers supplied information to most Americans. It was, under the 1910 act) (Mutch, 13). therefore, logical for candidates to place their campaign Extending any campaign ﬁnance regulations to priads in the papers and seek press coverage. Radio, howmary elections was poison to many Democrats, parever, challenged newspapers for the public’s attention, as the new technology offered live coverage of events. ticularly those in the South, because their districts Elected ofﬁcials and candidates quickly discovered racontained overwhelming Democratic majorities. In dio’s advantages. The Wireless Ship Act of 1910 was the such districts, winning the primary was tantamount to ﬁrst federal legislation involving radio. For the purpose winning the general election. Southern Democrats also of improving maritime safety, any ship leaving an Amerused primaries to exclude black voters, ensuring that ican port with 50 or more passengers was required to white voters elected white lawmakers. Most Democrats have a radio. Two years later, Congress passed the Radio Act in which radio waves were deemed a limited public based their opposition to federal regulations of primaries resource to be regulated to prevent signal proliferation on the principle of states’ rights, arguing that the Conand interference with governmental transmissions. Secstitution granted the states responsibility for conducting tions one and two gave the Commerce secretary broad all elections within their boundaries. Jackson’s amenddiscretionary authority to issue licenses to private transment, they believed, was an unconstitutional intrusion mitting stations operating in interstate or foreign comon state sovereignty. merce. Private stations broadcasting in only one state were not affected so long as a station’s signal did not The Jackson amendment passed the House, however, interfere with another private signal or governmental 172–131, successfully dividing the Democrats, as only transmission. Within a few years, private radio comnorthern Democrats and Republicans supported it. But panies were vying for licenses and chafﬁng under the Rucker was not to be outmaneuvered by his opponents. apparent subjectivity exercised by the Commerce secDisplaying mastery of parliamentary rules and an abilretary in awarding them. The secretary’s licensing powity to convince southern Democrats to vote with him, ers were challenged in Hoover v. Intercity Radio Co., Inc., 286 F. 1003 (1923). Secretary Hoover had denied he managed to bring his bill back to the ﬂoor minus the the plaintiffs a radio license because no wavelength was Jackson amendment, and it passed (Mutch, 14). available for the company that did not interfere with In the Senate, however, Republicans incorporated government signals and those of established broadcastthe Jackson amendment in their bill. The chamber also ers. The district court ruled that the secretary’s powers accepted an amendment from Senator James A. Reed were purely ministerial, meaning that he had no discre(D, MO) that set a $10,000 campaign spending limit, tionary authority to deny the applicant, but he did have a measure intended to reduce the ability of the wealthy to self-ﬁnance their campaigns. The Senate also added provisions that applied the act to Senate primary and general elections (Mutch, 14). Earlier in the session, Congress had voted to send the 17th Amendment, which required the direct election of Senators, to the states. To reconcile the differences between the House and Senate bills, a conference committee was formed. To the surprise of many, Rucker, leader of the House conferees, acquiesced to the Senate version with its more extensive requirements. The Senate quickly voted to accept the conference report, and the House followed suit after several days of debate during which Rucker defended the Senate’s amendments. Despite his apparent wafﬂing on the bill, Rucker succeeded in holding the votes of nearly all his Democratic colleagues, and the bill passed 282–27 (Mutch 1988, 15). Section 5 of the 1910 act was amended to incorporate preelection disclosure in which political committees’ treasurers were required to submit detailed statements of

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contributions and expenditures “not more than ﬁfteen days and not less than ten days” prior to an election, DID YOU KNOW? and every six days thereafter until the day of the election. The Democrats’ original goal was achieved. the responsibility to minimize radio interference (Lee, Section 8 contained the Jackson provision. The act 37). Between 1922 and 1925, Hoover held conferences deﬁned candidates to include people seeking their parto foster cooperation and understanding between broadties’ nominations in primary elections or conventions, casters and his ofﬁce, and he attempted to streamline people running in special elections to ﬁll vacant seats, regulations. His actions, however, were challenged and and people running in general elections. All House and struck down by a district court in United States v. Zenith Senate candidates were required to ﬁle detailed stateCorp., 12 F. 2d 614 (1926). The court held that “there is no express grant of power in the act to the Secretary of ments of their campaigns’ contributions and expendiCommerce to establish regulations.” Frustrated, Hoover tures before primary and general elections as stated in sought the attorney general’s support, but he concurred Section 5 and after elections. Post-election reports were with the court’s decision in Zenith, effectively stripping to be ﬁled 15 days after a primary and no more than the Commerce secretary of any power to regulate the 30 days after a general election or 30 days after the date airwaves. Lacking discretionary power and with the airon which a senator was elected by a legislature. waves overcrowded, Hoover sought federal legislation, which led to the Radio Act of 1927 (see document) and The act also required every candidate to divulge any the creation of the Federal Radio Commission. promise or pledge made by the candidate or the candidate’s representative to appoint a person, or recomFurther Reading mend someone for appointment, to any government Craig, Douglas B. (2000). Fireside Politics: Radio and Poor private position to gain that person’s support for the litical Culture in the United States, 1920–1940. Baltimore: Johns Hopkins University Press. election of the candidate. Moreover, congressional canLee, Frederic P. (1929). “Federal Radio Legislation.” Andidates were banned from making commitments to use nals of the American Academy of Political and Social their inﬂuence to assist people in gaining a government Science 142 (suppl. Radio): 36–44. position. These provisions were clearly intended to address the exchange of campaign endorsements for jobs, even positions outside government. The amended language of the Reed proposal also appeared in Section 8, limiting primary and general election total expenditures by House candidates to $5,000 and senatorial candidates to $10,000. In 1921 these limits were declared unconstitutional by the Supreme Court in Newberry v. United States, which led Congress to revisit this act in 1925 with the passage of a new Federal Corrupt Practices Act (see document). In subsequent years, congressional Democrats attempted to make presidential campaign committees and political committees operating in only one state subject to federal disclosure requirements but failed. There was also a move to criminalize bribing voters in federal elections, but it too went nowhere.

FURTHER READING Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. LaRaja, Raymond J. 2008. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press Mutch, Robert E. 1988. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law. New York: Praeger. Overacker, Louise. 1932. Money in Elections. New York: Macmillan. Pollock, James. K. 1926. Party Campaign Funds. New York: Knopf.

• Document: United States v. U.S. Brewers’ Association, 239 F. 163 (1916) • Date: Decided December 23, 1916 • Signiﬁcance: In United States v. U.S. Brewers’ Association (1916), the District Court for the Western District of Pennsylvania upheld the Tillman Act of 1907 (see document) against a First Amendment free speech challenge. The court ruled that pursuant to its power to regulate federal elections, Congress could prohibit corporations from contributing money to federal campaigns.

DOCUMENT United States v. U.S. Brewers’ Association, 239 F. 163 (1916) District Judge Thomson delivered the opinion of the court We have here two indictments, one against a large number of Pennsylvania brewing corporations, and the other against a large number of brewing corporations of the state of Pennsylvania, and the United States Brewers’ Association, a corporation of the state of New York. The indictments are similar in form and charge the defendants named therein, under section 37 of the Penal Code, with conspiracy to violate section 83 of the Criminal Code of the United States, prohibiting money contributions to be made by certain corporations in connection with any election at which, among others, Representatives in Congress are to be voted for. To the indictments so found the defendants have . . . ﬁled motions to quash. The motions to quash challenge the constitutionality of section 83 of the act of Congress. . . . These will be dealt with in a single opinion. If section 83 is void because it violates the Constitution, the offense therein prescribed against would not exist, and hence there could be no conspiracy to commit it. Four reasons are

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assigned in the motion to quash, against the validity of the statute under the Constitution: First, section 83 was and is not within the power of Congress to enact; second, that it is void for vagueness and uncertainty; third, that it violates the ﬁrst amendment to the Constitution, in that it attempts to prohibit, make criminal, and punish, the freedom of speech and of the press in the discussion of candidates and of political questions involved in such elections; fourth, that it is void and beyond the power of Congress, in that it attempts to prohibit, make criminal, and punish money contributions made to a candidate for a state ofﬁce, or to the agent of such candidate or in connection therewith. In order to keep this opinion within reasonable limits as to length, I shall be compelled to state my conclusions without great elaboration of the reasons upon which these conclusions are based. Section 83 in question provides as follows: “It shall be unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a money contribution in connection with any election to any political ofﬁce. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice Presidential electors or a Representative in Congress is to be voted for, or any election by any state legislature of a United States Senator. Every corporation which shall make any contribution in violation of the foregoing provisions shall be ﬁned not more than ﬁve thousand dollars; and every ofﬁcer or director of any corporation who shall consent to any contribution by the corporation in violation of the foregoing provisions shall be ﬁned not more than one thousand dollars, or imprisoned not more than one year, or both.” It will be observed that the section deals with two classes of corporations, namely, federal corporations and those chartered under the laws of a state. The former being creatures of federal law, there is no contention as to them that Congress has exceeded its powers. What as to corporations of the state, with which the act also deals? Turning to the Constitution to determine what powers have been given to Congress over the subject in question, we ﬁnd the following provisions: Article 1, §2, cl. 1, provides as follows: “The House of Representatives shall be composed of members chosen every second year by the people of the several states and the electors in each state shall have the qualiﬁcations requisite for electors of the most numerous branch of the state Legislature.” Article 1, §4, cl. 1, provides: “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.” Article 1, §8, cl. 18, gives to Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or ofﬁcer thereof.” Article 6, cl. 2, provides: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority

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of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” From these provisions of the Constitution and the interpretations put upon them by the federal courts, certain propositions may be safely asserted: 1. The right to vote for federal ofﬁcers is conferred by the federal Constitution, the House of Representatives being chosen every second year by the people of the several states, the electors in each state having the qualiﬁcations requisite for electors of the most numerous branch of the state Legislature. The elector being thus qualiﬁed by state laws, but deriving his right to vote for members of Congress from the Constitution of the United States itself, it follows as a necessary conclusion that Congress has the power to protect him in the enjoyment of that right. 2. While under the Constitution the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the state Legislature thereof, Congress, except as to the places of choosing Senators, may at any time by law make or alter such regulations. Thus the ultimate power was wisely conferred on Congress so that the states might not by any law or obstructive process prevent the election of the Senate and House of Representatives and thus endanger the very existence of the republic itself. . . . 3. In the exercise of this authority, Congress in 1842, to prevent an undue preponderance of power to political party in a state which had a majority of votes however small, enacted that each member should be elected by a separate district composed of contiguous territory. Lest the Legislature of some state should fail to elect Senators at the proper time, Congress by act has compelled two bodies of the Legislature to meet in joint session on a given day, to vote for Senator, and meeting on each day thereafter until a Senator is elected. To remedy certain evils growing out of the election of members of Congress at different times in different states, Congress required all the elections for said members to held on the Tuesday after the ﬁrst Monday of November of every second year. Most state Legislatures for their own accommodation have ﬁxed the same day for the holding of state elections; otherwise, the election on the day ﬁxed by Congress would have been for the choosing of Congressmen alone. 4. Congress having been vested with power to prescribe the times, places, and manner of holding elections for Senators and Representatives, that body has undoubted power to provide laws to regulate those elections. . . . 5. In the exercise of its prerogatives and to secure greater economy and efﬁciency, the government has thought best that certain artiﬁcial bodies should be created with certain ﬁxed and deﬁnite powers, and acting within certain prescribed limitations. These artiﬁcial creatures are not citizens of the United States, and, so far as the franchise is concerned, must at all times be held subservient and subordinate to the government and the citizenship of which it is composed. 6. It may be said that there are three means of participation in the government so far as its representative nature is concerned, namely: By the

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exercise of the right of suffrage; by persuasion or coercion of the individual possessing that right; and by furnishing the means by which the individual may be persuaded or coerced. The time has not come and probably never will come, when the right of suffrage will be extended to the artiﬁcial beings known as corporations. 7. To prevent undue inﬂuence by the second and third means, nearly every state has enacted laws commonly called “Corrupt Practices Acts,” prescribing limitations on the exercise of inﬂuence over the voter at elections. That the government has equal concern in preserving the freedom of the voter and the purity of the ballot when its Representatives in Congress are to be voted for needs only the statement to be conceded. 8. By various acts Congress has undertaken to control the agencies by which political activities in campaigns may be carried on, the amount of money which a candidate may spend, the purposes for which it may be expended, and the manner of accounting for all such expenditures. Section 83 in question is in line with this wise and beneﬁcent legislation by undertaking to place a prohibition against political activities by those artiﬁcial beings who are merely the creatures of the law. That Congress may control those corporations which the federal government has created goes for the saying. 9. And when we reﬂect that Congress is here dealing with elections at which Representatives in Congress are being voted for; that an election is intended to be the free and untrammeled choice of the electors; that any interference with the right of the elector to make up his mind how he will vote is as much an interference with his right to vote as if prevented from depositing his ballot; that the concerted use of money is one of the many dangerous agencies in corrupting the elector and debauching the election; that any law the purpose of which is to enable a free and intelligent choice, and an untrammeled expression of that choice in the ballot box, is a regulation of the manner of holding the election—the power of Congress to prohibit corporations of the state from making money contributions in connection with any such election appears to follow as a natural and necessary consequence. The second reason assigned in the motion to quash alleges the invalidity of the statute because vague and uncertain, failing to deﬁne what contributions shall be considered a money contribution in connection with an election. . . . The words “money contributions” are not vague and uncertain, but, on the contrary, their meaning is plain, and their purpose as used in the act unmistakable. Whether, in any given case, an expenditure by a corporation shall be construed as “a money contribution in connection with any election,” within the spirit, intent, and meaning of the act of Congress, may become a question for the court or jury in the light of all the circumstances of the case. . . . The third reason assigned is that section 83 violates the ﬁrst amendment to the Constitution, in that it attempts to prohibit, make criminal, and punish the freedom of speech and of the press, in the discussion of candidates and all political questions involved in such election.

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The section itself neither prevents, nor purports to prohibit, the freedom of speech or of the press. Its purpose is to guard elections from corruption, and the electorate from corrupting inﬂuences in arriving at their choice. . . . The fourth reason assigned against the validity of the act is that it tends to prohibit, make criminal, and punish money contributions made to a candidate for a state ofﬁce, or to the agent for such candidate, or in connection with his election. As I understand defendants’ position, this reason is based on the use of the words “any election at which Presidential and Vice Presidential electors” are “voted for.” If it should be held that Congress exceeded its power in including, among others, elections in which Presidential and Vice Presidential electors are to be voted for, on the ground that they are ofﬁcers of the state and not of the federal government, that would not, in my opinion, invalidate the act except as to that particular provision. If that which is unconstitutional can be separated from that which is not, the one may be rejected, and the other retained. . . . On the whole, I am of opinion that, in enacting section 83, Congress kept within its constitutional powers. Were I in doubt upon this question, I would resolve that doubt in favor of the constitutionality of the act. . . .

ANALYSIS How to ﬁnance political campaigns has been a perennial question for candidates and political parties. Throughout most of the 19th century political parties levied assessments on government workers to ﬁnance campaigns. However, with the AntiAssessment Act of 1876 (see document), Congress prohibited political parties from soliciting or receiving assessments from federal workers. The Supreme Court upheld the Anti-Assessment Act against a First Amendment challenge in Ex Parte Curtis, 106 U.S. 371 (1882) (see document). While reform efforts were successful in ridding assessments from federal campaigns, candidates and parties were left with ﬁnding alternative funding sources. The most popular and plentiful source was corporations. As political reformers of the late 19th century focused their efforts on eliminating electoral corruption by targeting political parties, America’s newly formed corporations began to exert their power by making extremely large campaign contributions. Mark Hanna, most famously known as the architect behind William McKinley’s successful 1896 and 1900 presidential campaigns, once remarked, “There are two things that are important in politics. The ﬁrst is money, and I can’t remember what the second one is.” Because corporations possessed large sums of money, political parties successfully obtained large campaign contributions from them usually in exchange for favorable legislation, whether protective tariffs or lax regulations. By the 20th century, progressive reformers turned their attention to corporate contributions and corruption. The result was the passage of the Tillman Act of 1907 (see document), which barred corporations from contributing money directly to political campaigns. After numerous Pennsylvania breweries and the U.S. Brewers Association, a corporation based in New York, were indicted for violation of the Tillman Act, they alleged that Congress did not have the constitutional authority to pass the Tillman Act. The federal district court ruled that Congress was within its authority to bar corporations from contributing to federal campaigns because the Constitution grants

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Congress the right to regulate federal elections. Speciﬁcally, article I, section 4 provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations.” If Congress can regulate elections, it can surely pass laws, such as the Tillman Act, that seek to regulate how those elections are funded. The federal court further reasoned that allowing noncitizens, for example, corporations, to contribute unlimited money to federal campaigns impinged on the “free and untrammeled choice of the [people]” by clouding the voters’ judgment about the candidates and issues on the ballot. Finally, the court summarily dismissed the corporations’ First Amendment arguments by suggesting that the Tillman Act “neither prevents, nor purports to prohibit, the freedom of speech or of the press.” Rather, the act sought to eradicate corruption from elections, an exemplary goal. Like Ex Parte Curtis (1882) (see document), United States v. U.S. Brewers’ Association (1916) signiﬁed the federal courts’ willingness to uphold early campaign ﬁnance legislation against First Amendment challenges. In both cases, the courts concluded that clean, corruption-free elections were essential to democratic efforts to expand suffrage by increasing the integrity of elections. However, as the 20th century progressed, courts became increasingly open to the free speech argument.

• Document: United States v. Gradwell, 243 U.S. 476 (1917) • Date: Decided April 9, 1917 • Signiﬁcance: In Gradwell, the U.S. Supreme Court ruled that the federal criminal code was not meant to criminalize voter fraud in congressional primary elections. The Court ruled that Congress had consistently left the regulation of primary elections to the states, believing such elections were outside the purview of congressional power.

DOCUMENT United States v. Gradwell, 243 U.S. 476 (1917) Justice Clarke delivered the opinion of the Court These four cases were argued together because the indictments in the ﬁrst three must be justiﬁed, it at all, under the same section of the Criminal Code of the United States while the fourth involves the application of 19 of that Code to the same state of facts which we have in the third case. . . . No. 775 relates to the conduct of a primary election held in the state of West Virginia on the 6th of June, 1916, under a law of that state providing for a state-wide nomination of candidates for the United States Senate. In the indictment twenty defendants are charged with conspiring “to defraud the United States in the matter of its governmental right to have a candidate of the true choice and preference of the Republican and Democratic parties nominated for said ofﬁce and one of them elected,” by causing and procuring a large number of persons who had not resided in the state a sufﬁcient length of time to entitle them to vote under the state law, to vote at the primary for a candidate named, and also to procure four hundred of such persons to vote more than once at such primary election. 61

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The indictment in No. 776 charges that the same defendants named in No. 775 conspired together to “injure and oppress” White, Sutherland, and Rosenbloom, three candidates for the Republican nomination for United States Senator who were voted for at the primary election held in West Virginia on June 6th, 1916, under a law of that state, by depriving them of the ‘right and privilege of having each Republican voter vote, and vote once only, for some one’ of the Republican candidates for such nomination, and of not having any votes counted at such election except such as were cast by Republican voters duly qualiﬁed under the West Virginia law. The charge is that the defendants conspired to accomplish this result by procuring a thousand persons, who were not qualiﬁed to vote under the state law, because they had not resided in that state a sufﬁcient length of time, to vote for an opposing candidate, William F. Hite, and many of them to vote more than once, and to have their votes cast, counted, and returned as cast in favor of such candidate. . . . It is plain from the foregoing statement that the indictments in the . . . cases are based solely upon the charge that the defendants conspired ‘to defraud the United States,’ in violation of 37 of the Criminal Code, and that the indictment in No. 776 is based upon the charge that three candidates for the nomination for Senator of the United States were ‘injured and oppressed,’ within the meaning of 19 of the Criminal Code, by a conspiracy on the part of the defendants to compass their defeat by causing illegal voting for an opposing party candidate at the primary election. The applicable portions of 37 and 19 are as follows: ‘Section 37. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner for any purpose, . . . each of the parties to such conspiracy shall be ﬁned not more than ten thousand dollars, or imprisoned not more than two years, or both. ‘Section 19. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise of enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be ﬁned not more than ﬁve thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any ofﬁce, or place of honor, proﬁt, or trust created by the Constitution or laws of the United States.’ The argument of counsel for plaintiff in error in the ﬁrst three cases is that the United States government has the right to honest, free, and fair elections, that a conspiracy to corrupt electors by bribery has for its object the denial and defeat of this right, and that it therefore is a scheme to defraud the United States within the meaning of 37. This presents for decision the questions: Is 37 of the Criminal Code applicable to congressional elections, and, if it is, has the United States such an interest or right in the result of such elections that to bribe electors constitutes a fraud upon the government within the meaning of this section? To admit, as it must be admitted, that the people of the United States, and so their government, considered as a political entity, have an interest in and a right to honest and fair elections, advances us but little toward determining whether 37 was enacted to protect that right, and whether a conspiracy to bribe voters is a violation of it. Obviously the government may have this right and yet not have enacted this law

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to protect it. It may be, as is claimed, that Congress intended to rely upon state laws and the administration of them by state ofﬁcials to secure honest elections, and that this section was enacted for purposes wholly apart from those here claimed for it. To answer the questions presented requires that we look to the origin and history of 37, and that we consider what has been, and is now, the policy of Congress in dealing with the regulation of elections of Representatives in Congress. . . . The power of Congress to deal with the election of Senators and Representatives is derived from 4, article 1, of the Constitution of the United States, providing that: ‘The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law, make or alter such regulations, except as to the places of choosing Senators.’ Whatever doubt may at one time have existed as to the extent of the power which Congress may exercise under this constitutional sanction in the prescribing of regulations for the conduct of elections for Representatives in Congress, or in adopting regulations which states have prescribed for that purpose, has been settled by repeated decisions of this court. . . . Although Congress has had this power of regulating the conduct of congressional elections from the organization of the government, our legislative history upon the subject shows that except for about twenty-four of the one hundred and twentyeight years since the government was organized, it has been its policy to leave such regulations almost entirely to the states, whose representatives Congressmen are. For more than ﬁfty years no congressional action whatever was taken on the subject until 1842, when a law was enacted requiring that Representatives be elected by districts . . . , thus doing away with the practice which had prevailed in some states of electing on a single state ticket all of the members of Congress to which the state was entitled. Then followed twenty-four years more before further action was taken on the subject, when Congress provided for the time and mode of electing United States Senators . . . , and it was not until four years later, in 1870, that, for the ﬁrst time, a comprehensive system for dealing with congressional elections was enacted. . . . These laws provided extensive regulations for the conduct of congressional elections. They made unlawful false registration, bribery, voting without legal right, making false returns of votes cast, interfering in any manner with ofﬁcers of election, and the neglect by any such ofﬁcer of any duty required of him by state or Federal law; they provided for appointment by circuit judges of the United States of persons to attend at places of registration and at elections, with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election tally sheets; and they made it lawful for the marshals of the United States to appoint special deputies to preserve order at such elections, with authority to arrest for any breach of the peace committed in their view. . . . It will be seen from this statement of the important features of these enactments that Congress by them committed to Federal ofﬁcers a very full participation in the process of the election of Congressmen, from the registration of voters to the ﬁnal certifying of the results, and that the control thus established over such elections was

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comprehensive and complete. It is a matter of general as of legal history that Congress, after twenty-four years of experience, returned to its former attitude toward such elections, and repealed all of these laws with the exception of a few sections not relevant here. This repealing act left in effect, as apparently relating to the elective franchise, only the provisions contained in the eight sections of chapter 3 of the Criminal Code, 19 to 26, inclusive, which have not been added to or substantially modiﬁed during the twenty-three years which have since elapsed. The policy of thus intrusting the conduct of elections to state laws, administered by state ofﬁcers, which has prevailed from the foundation of the government to our day, with the exception, as we have seen, of twenty- four years, was proposed by the makers of the Constitution, and was entered upon advisedly by the people who adopted it, as clearly appears from the reply of Madison to Monroe in the debates in the Virginia Convention. . . . With it thus clearly established that the policy of Congress for so great a part of our constitutional life has been, and now is, to leave the conduct of the election of its members to state laws, administered by state ofﬁcers, and that whenever it has assumed to regulate such elections it has done so by positive and clear statutes. . . . The constitutional warrant under which regulations relating to congressional elections may be provided by Congress is in terms applicable to the ‘times, places, and manner of holding elections (not nominating primaries) for Senators and Representatives.’ Primary elections, such as it is claimed the defendants corrupted, were not only unknown when the Constitution was adopted, but they were equally unknown for many years after the law, now 19, was ﬁrst enacted. They are a development of comparatively recent years, designed to take the place of the nominating caucus or convention, as these existed before the change, and even yet the new system must be considered in an experimental stage of development, under a variety of state laws. The claim that such a nominating primary, as distinguished from a ﬁnal election, is included within the provision of the Constitution of the United States, applicable to the election of Senators and Representatives, is by no means indisputable. Many state supreme courts have held that similar provisions of state Constitutions relating to elections do not include a nominating primary. . . . But even if it be admitted that, in general, a primary should be treated as an election within the meaning of the Constitution, which we need not and do not decide, such admission would not be of value in determining the case before us, because of some strikingly unusual features of the West Virginia law under which the primary was held, out of which this prosecution grows. By its terms this law provided that only candidates for Congress belonging to a political party which polled 3 per cent of the vote of the entire state at the last preceding general election could be voted for at this primary, and thereby, it is said at the bar, only Democratic and Republican candidates could be and were voted for, while candidates of the Prohibition and Socialist parties were excluded, as were also independent voters who declined to make oath that they were ‘regular and qualiﬁed members and voters’ of one of the greater parties. Even more notable is the provision of the law that, after the nominating primary, candidates, even persons who have failed at the primary, may be nominated by certiﬁcate signed by not less than 5 per cent of the entire vote polled at the last preceding election. . . . Such provisions as these, adapted though they may be to the selection of party candidates for ofﬁce, obviously could not be lawfully applied to a ﬁnal election

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at which ofﬁcers are chosen, and it cannot reasonably be said that rights which candidates for the nomination for Senator of the United States may have in such a primary under such a law are derived from the Constitution and laws of the United States. They are derived wholly from the state law, and nothing of the kind can be found in any Federal statute. Even when Congress assumed, as we have seen, to provide an elaborate system of supervision over congressional elections, no action was taken looking to the regulation of nominating caucuses or conventions, which were the nominating agencies in use at the time such laws were enacted. What power Congress would have to make regulations for nominating primaries, or to alter such regulations when made by a state, we need not inquire. . . . The claim that the effect of the Federal Corrupt Practices Act, recognizing primary elections and limiting the expenditures of candidates for senator in connection with them, is, in effect, an adoption by Congress of all state primary laws, is too unsubstantial for discussion; and the like claim that the temporary measure enacted by Congress for the conduct of the nomination and election of Senators until other provisions should be made by state legislation cannot be entertained, because this act was superseded by the West Virginia primary election law, passed February 20th, 1914, effective ninety days after its passage. It results that the judgments of the District Court in each of these cases must be afﬁrmed.

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DID YOU KNOW? The Teapot Dome Scandal The events surrounding the scandal named for a rock formation above oil-rich land in Wyoming exposed some of the worst aspects of American politics of the early 20th century: extremely large campaign contributions made covertly by wealthy businessmen to a presidential candidate’s campaign in exchange for special favors. Beginning with the Republican national convention in 1920, a number of the country’s richest men representing its major industries threw their support—and their money—behind the candidacy of Warren G. Harding. Among those endorsing and ﬁnancially backing Harding were Harry F. Sinclair (of Sinclair Consolidated Oil Company) and Edward F. Doheny (of Pan-American Oil Company). Both wanted access to federal oil reserves in California and Wyoming. The reserves had been placed under the Navy Department by President Taft as a fuel source, making it extraordinary to give a private company access to the land to extract oil for private use. Harding cleverly transferred the oil reserves’ jurisdiction from the Navy Department to the Interior Department, where Albert B. Fall, a Harding crony, was secretary. In April 1921 Fall and Sinclair drafted a lease, with terms favorable to Sinclair and without competitive bidding, giving Sinclair’s company exclusive access to Teapot Dome’s oil. Subsequently, Sinclair transferred Liberty Bonds to Fall valued at over $250,000 and also contributed $75,000 to the Republican National Committee. In December 1922 Fall gave Doheny a similarly generous lease without competitive bidding for the reserves at Elk Hills, California, and in return Fall received $100,000 from Doheny. It wasn’t until February 1924 that an independent investigation was begun by Owen Roberts, a Republican, and Arlee Pomerene, a Democrat, followed later by several congressional investigations. Eventually, only two men were convicted: Sinclair in 1927 and Fall in October 1929. The leases to Sinclair and Doheny were canceled, however, returning nearly $50 million to the Navy. Congress passed the Federal Corrupt Practices Act of 1925 (see document).

The speciﬁc issue in this case was whether the federal criminal code permitted indictments against 20 people who had conspired to commit voter fraud in West Virginia’s primary elections. These people were accused of defrauding the U.S. government by “procuring a thousand persons,” otherwise ineligible to vote under state Further Reading law, to cast ballots, sometimes more than one, for an opHohenstein, Kurt. 2007. Coining Corruption: The Makposition candidate. The federal government argued that ing of the American Campaign Finance System. the conspiracy’s intent was to “injure and oppress” three DeKalb: Northern Illinois University Press. candidates for the Republican nomination for U.S. senator. The 20 people were indicted for violating the U.S. Criminal Code’s sections 19 and 37, which respectively prohibit conspiring “to injure, oppress, threaten, or intimidate any citizen in the free exercise” of voting and prohibit conspiring to “commit any offense against the

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United States, or to defraud the United States in any manner for any purpose.” The defendants challenged DID YOU KNOW? the indictments, alleging that the federal criminal code did not extend to primary elections. Teapot Dome’s true legacy, however, is its enduring Writing for a unanimous Court, Justice Clarke noted example as a model of corruption, one that continthat, other than an 1842 law mandating that memues to be evoked whenever campaign ﬁnance reform bers of the House be elected from single-member disdiscussions begin. tricts and an 1870 law regulating virtually all aspects of Further Reading congressional elections but that had been subsequently repealed, Congress had not attempted to regulate priBates, J. Leonard. 1955. “The Teapot Dome Scandal and the Election of 1924.” American Historical Review maries, instead leaving the regulation of primaries and 60, no. 2:303–22. other nominating methods to the states. Within this Bates, J. Leonard. 1963. The Origins of Teapot Dome: legislative history and context, the Court concluded Progressives, Parties and Petroleum, 1909–1921. Urthat the legislative intent was not to use sections 19 bana: University of Illinois Press. McCartney, Laton. 2008. The Teapot Dome Scandal: How and 37 to control state primary elections. Big Oil Bought the Harding White House and Tried to Having decided that the two sections of federal crimSteal the Country. New York: Random House. inal code in question were intended to protect the civil Noggle, Burl. 1962. Teapot Dome: Oil and Politics in the 1920’s. Baton Rouge: Louisiana State Univerrights of freed blacks and not to regulate primary elecsity Press. tions, the Court refused to speculate on what powers Ravage, M. E. 1974. The Story of Teapot Dome. New Congress might possess in trying to regulate state priYork: B. Franklin. maries. Finally, while the Court declined to entertain Starr, John, and M. R. Werner. 1959. Teapot Dome. New York: Viking. the argument that the Federal Corrupt Practices Act Stratton, David H. 1998. Tempest over Teapot Dome: of 1911 (see document) had implicitly recognized the The Story of Albert B. Fall. Vol. 16 of The Oklagovernment’s right to regulate primaries when it had homa Western Biographies. Norman: University of placed expenditure limitations on all congressional and Oklahoma Press. Weisner, Herman B. 1988. The Politics of Justice: A.B. senatorial elections, the Court took up this question in Fall and the Teapot Dome Scandal: A New PerspecNewberry v. United States (1921), deciding that Contive. Albuquerque, NM: Creative Designs. gress could not regulate primary elections. Congress declined to regulate primary elections when it passed the Federal Corrupt Practices Act of 1925 (see document), but the powers were ﬁnally extended to Congress though the Supreme Court’s decision in United States v. Classic, 313 U.S. 299 (1941) (see document).

• Document: The Federal Corrupt Practices Act of 1925 • Date: Signed into law by President Calvin Coolidge on February 28, 1925 • Signiﬁcance: Following the Supreme Court’s decision in Newberry, Congress revisited the 1911 Federal Corrupt Practices Act and eliminated its provisions for reporting campaign donations and expenditures in primary elections. It also combined, reorganized, and clariﬁed the 1910 and 1911 Corrupt Practices acts, making them easier to interpret and apply. Though weakly enforced, the act remained in effect until the passage of the 1971 Federal Election Campaign Act.

DOCUMENT The Federal Corrupt Practices Act of 1925, 43 Stat. 1070 SEC. 301. This title may be cited as the “Federal Corrupt Practices Act, 1925.” SEC. 302. When used in this title— (a) The term “election” includes a general or special election, and, in the case of a Resident Commissioner from the Philippine Islands, an election by the Philippine Legislature, but does not include a primary election or convention of a political party; (b) The term “candidate” means an individual whose name is presented at an election for election as Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, whether or not such individual is elected; (c) The term “political committee” includes any committee, association, or organization which accepts contributions or makes expenditures for the purpose of inﬂuencing or attempting to inﬂuence the election of candidates or presidential and vice presidential electors (1) in two or more States, or (2) whether or not in more than 67

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one State if such committee, association, or organization (other than a duly organized State or local committee of a political party) is a branch or subsidiary of a national committee, association, or organization; (d) The term “contribution” includes a gift, subscription, loan, advance, or deposit, of money, or anything of value, and includes a contract, promise, or agreement, whether or not legally enforceable, to make a contribution; (e) The term “expenditure” includes a payment, distribution, loan, advance, deposit, or gift, of money, or any thing of value, and includes a contract, promise, or agreement, whether or not legally enforceable, to make an expenditure; (f ) The term “person” includes an individual, partnership, committee, association, corporation, and any other organization or group of persons; (g) The term “Clerk” means the Clerk of the House of Representatives of the United States; (h) The term “Secretary” means the Secretary of the Senate of the United States; (i) The term “State” includes Territory and possession of the United States; SEC. 303. (a) Every political committee shall have a chairman and a treasurer. No contribution shall be accepted, and no expenditure made, by or on behalf of a political committee for the purpose of inﬂuencing an election until such chairman and treasurer have been chosen. (b) It shall be the duty of the treasurer of a political committee to keep a detailed and exact account of— (1) All contributions made to or for such committee; (2) The name and address of every person making any such contribution, and the date thereof; (3) All expenditures made by or on behalf of such committee; and (4) The name and address of every person to whom any such expenditure is made, and the date thereof. (c) It shall be the duty of the treasurer to obtain and keep a receipted bill, stating the particulars, for every expenditure by or on behalf of a political committee exceeding $10 in amount. The treasurer shall preserve all receipted bills and accounts required to be kept by this section for a period of at least two years from the date of the ﬁling of the statement containing such items. SEC. 304. Every person who receives a contribution for a political committee shall, on demand of the treasurer, and in any event within ﬁve days after the receipt of such contribution, render to the treasurer a detailed account thereof, including the name and address of the person making such a contribution, and the date on which received. SEC. 305. (a) The treasurer of a political committee shall ﬁle with the Clerk between the 1st and 10th days of March, June, and September, in each year, and also between the 10th and 15th days, and on the 5th day, next preceding the date on which a general election is to be held, at which candidates are to be elected in two or more States, and also on the 1st day of January, a statement containing, complete as of the day next preceding the date of ﬁling— (1) The name and address of each person who has made a contribution to or for such committee in one or more items of the aggregate amount or value,

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(2) (3) (4)

(5) (6)

within the calendar year, of $100 or more, together with the amount and date of such contribution; The total sum of the contributions made to or for such committee during the calendar year and not stated under paragraph (1); The total sum of all contributions made to or for such committee during the calendar year; The name and address of each person to whom an expenditure in one or more items of the aggregate amount or value, within the calendar year, of $10 or more has been made by or on behalf of such committee, and the amount, date, and purpose of such expenditure; The total sum of all expenditures made by or on behalf of such committee during the calendar year and not stated under paragraph (4); The total sum of expenditures made by or on behalf of such committee during the calendar year.

(c) The statement ﬁled on the 1st day of January shall cover the preceding calendar year. SEC. 306. Every person (other than a political committee) who makes an expenditure in one or more items, other than by contribution to a political committee, aggregating $50 or more within a calendar year for the purpose of inﬂuencing in two or more States the election of candidates, shall ﬁle with the Clerk an itemized detailed statement of such expenditure in the same manner as required of the treasurer of a political committee by section 305. SEC. 307. (a) Every candidate for Senator shall ﬁle with the Secretary and every candidate for Representative, Delegate, or Resident Commissioner shall ﬁle with the Clerk not less than ten nor more than ﬁfteen days before, and also within thirty days after, the date on which an election is to be held, a statement containing, complete as of the day next preceding the date of ﬁling— (1) A correct and itemized account of each contribution received by him or by any person for him with his knowledge or consent, from any source, in aid or support of his candidacy for election, or for the purpose of inﬂuencing the result of the election, together with the name of the person who has made such contribution; (2) A correct and itemized account of each expenditure made by him or by any person for him with his knowledge or consent, in aid or support of his candidacy for election, or for the purpose of inﬂuencing the result of the election, together with the name of the person to whom such expenditure was made; except that only the total sum of expenditures for items speciﬁed in subdivision (c) of section 309 need be stated; (3) A statement of every promise or pledge made by him or by any person for him with his consent, prior to the closing of the polls on the day of the election, relative to the appointment or recommendation for appointment of any person to any public or private position or employment for the purpose of procuring support in his candidacy, and the name, address, and occupation of every person to whom any such promise or pledge has been made, together with the description of any such position. If no such promise or pledge has been made, that fact shall be speciﬁcally stated.

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(b) The statements required to be ﬁled by subdivision (a) shall be cumulative, but where there has been no change in an item reported in a previous statement only the amount need be carried forward. (c) Every candidate shall enclose with his ﬁrst statement a report, based upon the records of the proper State ofﬁcial, stating the total number of votes cast for all candidates for the ofﬁce which the candidate seeks, at the general election next preceding the election at which he is a candidate. SEC. 308. A statement required by this title to be ﬁled by a candidate or treasurer of a political committee or other person with the Clerk or Secretary, as the case may be— (a) Shall be veriﬁed by the oath or afﬁrmation of the person ﬁling such statement, taken before any ofﬁcer authorized to administer oaths; (b) Shall be deemed properly ﬁled when deposited in an established post ofﬁce within the prescribed time, duly stamped, registered, and directed to the Clerk or Secretary at Washington, District of Columbia, but in the event it is not received, a duplicate of such statement shall be promptly ﬁled upon notice by the Clerk or Secretary of its nonreceipt; (c) Shall be preserved by the Clerk or Secretary for a period of two years from the date of ﬁling, shall constitute a part of the public records of his ofﬁce, and shall be open to public inspection. SEC. 309. (a) A candidate, in his campaign for election, shall not make expenditures in excess of the amount which he may lawfully make under the laws of the state in which he is a candidate, nor in excess of the amount which he may lawfully make under the provisions of this title. (b) Unless the laws of his State prescribe a less amount as the maximum limit of campaign expenditures, a candidate may make expenditures up to— (1) The sum of $10,000 if a candidate for Senator, or the sum of $2,500 if a candidate for Representative, Delegate, or Resident Commissioner; or (2) An amount equal to the amount obtained by multiplying three cents by the total number of votes cast at the last general elections for all candidates for the ofﬁce which the candidate seeks, but in no event exceeding $25,000 if a candidate for Senator or $5,000 if a candidate for Representative, Delegate, or Resident Commissioner. (c) Money expended by a candidate to meet and discharge any assessment, fee, or charge made or levied upon candidates by the laws of the State in which he resides, or expended for his necessary personal, traveling, or subsistence expenses, or for stationery, postage, writing, or printing (other than for use on billboards or in newspapers), for distributing letters, circulars, or posters, or for telegraph or telephone service, shall not be included in determining whether his expenditures have exceeded the sum ﬁxed by paragraph (1) or (2) of subdivision (b) as the limit of campaign expenses of a candidate. SEC. 310. It is unlawful for any candidate to directly or indirectly promise or pledge the appointment, or the use of his inﬂuence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy. SEC. 311. It is unlawful for any person to make or offer to make an expenditure, or to cause an expenditure to be made or offered, to any person, either to vote or withhold his vote, or to vote for or against any candidate, and it is unlawful for any

Chapter 2 • 1900 to 1939

person to solicit, accept, or receive any such expenditure in consideration of his vote or the withholding of his vote. SEC. 312. Section 118 of the act entitled “An Act to codify, revise, and amend the penal laws of the United States,” approved March 4, 1909 is amended to read as follows: “SEC. 118. It is unlawful for any Senator or Representative in, or Delegate or Resident Commissioner, or any ofﬁcer or employee of the United States, or any person receiving any salary or compensation for services from money derived from the Treasury of the United States, to directly or indirectly solicit, receive, or be in any manner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political purpose whatever, from any other such ofﬁcer, employee, or person.” SEC. 313. It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution in connection with any election to any political ofﬁce, or for any corporation whatever to make a contribution in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section. Every corporation which makes any contribution in violation of this section shall be ﬁned not more than $5,000; and every ofﬁcer or director of any corporation who consents to any contribution by the corporation in violation of this section shall be ﬁned not more than $1,000, or imprisoned not more than one year, or both. SEC. 314. (a) Any person who violates any of the foregoing provisions of this title, except those for which a speciﬁc penalty is imposed by sections 312 and 313, shall be ﬁned not more than $1,000 or imprisoned not more than one year, or both. (b) Any person who willfully violates any of the foregoing provisions of this title, except those for which a speciﬁc penalty is imposed by section 312 and 313, shall be ﬁned not more than $10,000 and imprisoned not more than two years. SEC. 315. This title shall not limit or affect the right of any person to make expenditures for proper legal expenses in contesting the results of an election. SEC. 316. This title shall not be construed to annul the laws of any State relating to the nomination or election of candidates, unless directly inconsistent with the provisions of this title, or to exempt any candidate from complying with such State laws. SEC. 317. If any provision of this title or application thereof to any person or circumstance is held invalid, the validity or the remainder of the Act and of the application of such provision to other persons and circumstances shall not be affected thereby. SEC. 318. The following Acts and parts of Acts are hereby repealed: the Act entitled “An Act providing for publicity of contributions made for the purpose of inﬂuencing elections at which Representatives in Congress are elected,” approved June 25, 1910 (chapter 392, Thirty-sixth Statutes, page 822), and the Acts amendatory thereof, approved August 19, 1911 (chapter 33, Thirty-seventh Statutes, page 25) and August 23, 1912 (chapter 349, Thirty-seventh Statutes, page 360); the Act entitled “An Act to prevent corrupt practices in the election of Senators, Representatives, or Delegates in Congress,” approved October 16, 1918 (chapter 187,

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February 1923: Three men throwing ballots, tally sheets, and poll books of the Newberry election of 1918 into a furnace at the U.S. Capitol powerhouse. (National Photo Company Collection, Library of Congress, Prints & Photographs Division, LC-USZ62– 52249.)

Fortieth Statutes, page 1013); and section 83 of the Criminal Code of the United States, approved March 4, 1909 (chapter 321, Thirty-ﬁfth Statutes, page 1088). SEC. 319. This title shall take effect thirty days after its enactment.

ANALYSIS Much of the contentiousness surrounding the passage of the Federal Corrupt Practices Act of 1911 (see document) stemmed from its provisions extending campaign disclosure requirements and spending limits to congressional primary elections. Some lawmakers argued that the regulations violated states’ rights while others contended that Congress did not have the authority to regulate primaries at all, because

Chapter 2 • 1900 to 1939

the Constitution referenced only general elections. These questions were somewhat resolved by the SuDID YOU KNOW? preme Court when it rendered its decision in Newberry v. United States (1921), which seemed to declare unconPolitical Parties, Radical Ideas, and Ballot Access stitutional Congress’s authority over primary elections. Though some in Congress, particularly Progressives, Whitney v. California (1927) was a leading First Amendsought to revisit campaign regulation in the Newberry ment case involving a challenge to California’s Crimidecision’s aftermath, Republican congressional leadnal Syndicalism Act, which criminalized the organizing ers and President Harding were less interested. Indeed, or assisting of groups that “advocate, teach or aid and Attorney General Harry M. Daugherty went so far as abet” force or violence against “industrial ownership” or government. The California act was one of many to write a letter to the House in which he stated his across the country that was passed during the ﬁrst Red opinion that Newberry deﬁnitively eliminated priScare (1917–1920), in response to the electoral strength mary elections from Congress’s purview as well as Senexhibited by Socialist Party candidate Eugene Debs in ate elections. Congress’s only legislative option was the ﬁrst decade of the 20th century and the supposed to extend regulations to the direct election of senathreats that these organizations posed to America’s eftors (Mutch 1988, 19). The position of Harding and forts in World War I. By upholding the California act, the U.S. Supreme Court allowed states to punish already his cabinet was likely inﬂuenced by a Senate investiunpopular political parties by prosecuting individuals gation into the campaign expenditures by candidates who joined these groups and by keeping these political from both parties during the 1920 presidential elecparties off state ballots. tion. Led by Senator William S. Kenyon (R, IA), the In what has become a leading defense of the First committee discovered that of the 17 different aspiring Amendment, Justice Brandeis’s concurring opinion presidential candidates, announced and unannounced, in Whitney argued that the First Amendment was designed to enhance deliberative democracy. The freeseveral spent no money while one, General Leonard dom to speak and think are “means indispensable to the Wood, spent $1.7 million. The committee also idendiscovery and spread of political truth; that without free tiﬁed a number of organizations that raised and spent speech and assembly discussion would be futile,” Jusmoney independently of a candidate’s campaign and tice Brandeis wrote. Fear of danger or unpopular ideas found interaction among state party committees and is not sufﬁcient to limit speech, as “there must be reatheir respective national committees in raising money sonable ground to believe that the evil to be prevented is a serious one.” Justice Brandeis’s views on the First and then transferring funds across levels. In its report, Amendment became known as the free marketplace of the committee recommended a constitutional amendideas theory, which advocates broad protection to unment to allow for greater regulation of campaign money popular speech and places a heavy burden of justiﬁca(Hohenstein 2007, 81–82). tion on the state when it wants to suppress speech. The Teapot Dome scandal, which came to light in 1924, created a major public outcry for reform. The Senate once again charged a committee, this time under Senator William Borah (R, ID), to study fund-raising in the 1924 presidential and senatorial elections. As the Kenyon committee had discovered, Borah found large sums of money raised by the parties in one state that were sent to other states or the national committee. It recommended that this practice be regulated and that the Federal Corrupt Practices Act be updated to adjust senatorial spending limits to reﬂect a state’s population rather than having a single limit for all states (Hohenstein 2007, 83). Borah attempted to follow his committee’s suggestions and offered a rider to the Postal Salary Increase Act that was already before the Senate. Borah’s rider extended disclosure requirements to all political committees and all individuals seeking elected ofﬁce at the federal, state, and local levels. All contributors and the amounts of their donations were to be divulged before and after elections. His amendment passed the Senate, but in the House it was doomed. Representative John Cable (R, OH),

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who had offered a campaign ﬁnance bill in the prior Congress, presented a much less ambitious bill in place DID YOU KNOW? of Borah’s. It reorganized existing federal campaign ﬁnance regulations but did not include primary elections. The free marketplace of ideas theory of the First The House accepted the Cable bill, and in conference Amendment ﬁnally received a majority of votes on the committee forced the Senate to accept its version. UnSupreme Court in the 1960s. In Brandenburg v. Ohio, fortunately, Coolidge vetoed the bill because he dis395 U.S. 444 (1969) a unanimous Supreme Court overagreed with the postal bill, not the campaign ﬁnance ruled Whitney v. California (1927) and elevated political language. Congress sent the president the Federal Corspeech to its now vaunted status. Because of Brandenrupt Practices Act as a separate bill, which he signed on burg, the end of the red scares, and evolving societal attitudes regarding socialism and communism, no politFebruary 28, 1925. ical party is denied access to the ballot simply because Section 302 speciﬁcally excluded all primary elecof its message. Democratic- and Republican-dominated tions from the law’s requirements, something favored state legislatures have imposed structural impediments by President Coolidge and mainstream Republicans. It to the ballot for third parties, such as signature requirealso extended the deﬁnition of political committee to any ments and stringent deadlines but are forbidden from committee whose purpose was to inﬂuence a presidendenying access based on political viewpoints. tial election, language designed to include those organizations identiﬁed by the Kenyon committee. Section 305 provided speciﬁc dates rather than time frames for the ﬁling of campaign reports. This small step greatly facilitated submission of the campaign’s ﬁnance and spending reports. Section 306 was a small advance in controlling independent expenditures. Any person spending $50 or more in all elections in a year was required to ﬁle a report. Spending limits were revised and improved in Section 309, and for the ﬁrst time incorporated state spending laws. The act stipulated that candidates must obey state limits if less than the federal limits. In the absence of state restrictions, the act’s limits were set at $10,000 and $2,500, respectively, for Senate and House candidates. However, the candidate could spend an amount equal to the total votes in the state’s or the district’s last election multiplied by three cents but not more than $25,000 for a Senate candidate or $5,000 for a House candidate. Thus, in a state lacking campaign spending restrictions, Senate candidates could spend between $10,000 and $25,000 while House candidates could spend between $2,500 and $5,000, depending on how many people voted in the prior election for Senate or House. The remaining sections consolidated and clariﬁed provisions from the 1911 act. Despite concerns about the apparent corrosive inﬂuence of money on elections, especially in light of the facts emerging from the Teapot Dome case, neither Congress nor the president was eager to propose stricter regulations on campaign ﬁnancing. The Watergate scandal in 1973 supplied the motivation for Congress to address the matter once again.

FURTHER READING Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. LaRaja, Raymond J. 2008. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press. Mutch, Robert E. 1988. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law. New York: Praeger.

• Document: The Radio Act of 1927 • Date: Signed into law by President Coolidge February 23, 1927 • Signiﬁcance: The Radio Act of 1927 corrected the deﬁciencies of the 1912 Radio Act while also expanding the power of the federal government to regulate radio. It justiﬁed regulating the airwaves as a kind of public utility, created the Federal Radio Commission, and incorporated protections for candidates (the equal time rule) that would appear in later legislation.

DOCUMENT The Radio Act of 1927, PL 69-632 An Act for the regulation of radio communications, and for other purposes. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That this Act is intended to regulate all forms of interstate and foreign radio transmissions and communications within the United States, its Territories and possessions; to maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by individuals, ﬁrms, or corporations, for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license. That no person, ﬁrm, company, or corporation shall use or operate any apparatus for the transmission of energy or communications or signals by radio (a) from one place in any Territory or possession of the United States, or from the District of Columbia to another place in the same Territory. . . . SEC. 3. That a commission is hereby created and established to be known as the Federal Radio Commission, hereinafter referred to as the commission, which shall be 75

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composed of ﬁve commissioners appointed by the President, by and with the advice and consent of the Senate, and one of whom the President shall designate as chairman: Provided, That chairman thereafter elected shall be chosen by the commission itself. Each member of the commission shall be a citizen of the United States and an actual resident citizen of a State within the zone from which appointed at the time of said appointment. Not more than one commissioner shall be appointed from any zone. No member of the commission shall be ﬁnancially interested in the manufacture or sale of radio apparatus or in the transmission or operation of radiotelegraphy, radio telephony, or radio broadcasting. Not more than three commissioners shall be members of the same political party. The ﬁrst commissioners shall be appointed for the terms of two, three, four, ﬁve, and six years, respectively, from the date of the taking effect of this Act, the term of each to be designated by the President, but their successors shall be appointed for terms of six years, except that any person chosen to ﬁll a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. The ﬁrst meeting of the commission shall be held in the city of Washington at such time and place as the chairman of the commission may ﬁx. The commission shall convene thereafter at such times and places as the majority of the commission may determine, or upon call of the chairman thereof. . . . SEC. 4. Except as otherwise provided in this Act, the commission, from time to time, as public convenience, interest, or necessity requires, shall— (a) Classify radio stations; (b) Prescribe the nature of the service to be rendered by each class of licensed stations and each station within any class; (c) Assign bands of frequencies or wave lengths to the various classes of stations, and assign frequencies or wave lengths for each individual station and determine the power which each station shall use and the time during which it may operate; (d) Determine the location of classes of stations or individual stations . . . ; (f ) Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this Act . . . ; (g) Have the authority to establish areas or zones to be served by any station . . . ; Sec. 5 (C) To prescribe the qualiﬁcations of station operators, to classify them according to the duties to be performed, to ﬁx the forms of such licenses, and to issue them to such persons as he ﬁnds qualiﬁed. (D) To suspend the license of any operator for a period not exceeding two years upon proof sufﬁcient to satisfy him that the licensee (a) has violated any provision of any Act or treaty binding on the United States which the Secretary of commerce or the commission is authorized by this Act to administer or by any regulation made by the commission or the Secretary of Commerce under any such act or treaty; or (b) has failed to carry out the lawful orders of the master of the vessel on which he is employed; or (c) has willfully damaged or permitted radio apparatus to be damaged; or (d) has transmitted superﬂuous radio communications or signals or radio communications containing profane or obscene words or language; or (e) has willfully or maliciously interfered with any other radio communications or signals. . . . SEC. 9. The licensing authority, if public convenience, interest, or necessity will be served thereby, subject to the limitations of this Act, shall grant to any applicant therefore a station license provided for by this Act. In considering applications for licenses and renewals of licenses, when and in so far as there is a demand for the same, the licensing authority shall make such a

Chapter 2 • 1900 to 1939

distribution of licenses, bands of frequency of wave lengths, periods of time for operation, and of power among the different States and communities as to give fair, efﬁcient, and equitable radio service to each of the same. . . . SEC. 11. If upon examination of any application for a station license or for the renewal or modiﬁcation of a station license the licensing authority shall determine that public interest, convenience, or necessity would be served by the granting thereof, it shall authorize the issuance, renewal, or modiﬁcation thereof in accordance with said ﬁnding. In the event the licensing authority upon examination of any such application does not reach such decision with respect thereto, it shall notify the applicant thereof, shall ﬁx and give notice of a time and place for hearing thereon, and shall afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe. . . . SEC. 13. The licensing authority is hereby directed to refuse a station license and /or the permit hereinafter required for the construction of a station to any person, ﬁrm, company, or corporation, or any subsidiary thereof, which has been ﬁnally adjudged guilty by a Federal court if unlawfully monopolizing or attempting unlawfully to monopolize, after this Act takes effect, radio communication, directly or indirectly, through the control of the manufacture or sale of radio apparatus, through exclusive trafﬁc arrangements, or by any other means or to have been using unfair methods of competition. The granting of a license shall not stop the United States or any person aggrieved from proceeding against such person, ﬁrm, company, or corporation for violating the law against unfair methods of competition or for a violation of the law against unlawful restraints and monopolies and /or combinations, contracts, or agreements in restraint of trade, or from instituting proceedings for the dissolution of such ﬁrm, company, or corporation. SEC. 14. Any station license shall be revocable by the commission for false statements either in the application or in the statement of fact which may be required by section 10 hereof, or because of conditions revealed by such statements of fact as may be required from time to time which would warrant the licensing authority in refusing to grant a license on an original application, or for failure to operate substantially as set forth in the license, for violation of or failure to observe any of the restrictions and conditions of this Act, or of any regulation of the licensing authority authorized by this Act or by a treaty ratiﬁed by the United States. . . . SEC. 18. If any license shall permit any person who is a legally qualiﬁed candidate for any public ofﬁce to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that ofﬁce in the use of such broadcasting station, and the licensing authority shall make rules and regulations to carry this provision into effect: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this paragraph. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate. SEC. 19. All matter broadcast by any radio station for which service, money, or any other valuable consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person, ﬁrm, company, or corporation, shall, at the time the same is so broadcast, be announced as paid for or furnished, as the case may be, by such person, ﬁrm, company, or corporation. . . . SEC. 29. Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals

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President Calvin Coolidge addresses radio broadcasters at the White House in October 1924, with Herbert Hoover, then secretary of Commerce and later president, looking on. (National Photo Company Collection, Library of Congress, Prints & Photographs Division, LC-DIG-npcc-26256.)

transmitted by any radio station, and no regulation or condition shall be promulgated or ﬁxed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communications. . . . SEC. 40. This Act shall take effect and be in force upon its passage and approval, except that for and during a period of sixty days after such approval no holder of a license or an extension thereof issued by the Secretary of Commerce under said Act of August 13, 1912, shall be subject to the penalties provided herein for operating a station without the license herein required. SEC. 41. This Act may be referred to and cited as the Radio Act of 1927.

ANALYSIS Congressional concern with the Commerce secretary’s ability to regulate licensing under the Radio Act of 1912 appeared in 1923 following the federal court decision in

Chapter 2 • 1900 to 1939

Hoover v. Intercity Radio Co., which eliminated the secretary’s discretional authority. Representative Wallace DID YOU KNOW? H. White (R, ME) introduced a bill designed to expand and clarify the Commerce secretary’s licensing authorThe Federal Courts and the Radio Act of 1927 ity, but the bill failed to attract other lawmakers’ interest. At the fourth National Radio Conference organized Political parties have long sought to channel new techby Secretary of Commerce Hoover in 1925, those connologies to their electoral advantage during campaigns. vened called for legislation granting the full authority With the advent of radio in the early 20th century, howto license and regulate the broadcast industry to one ever, many government leaders believed that the public federal agency, but it took the federal court’s ruling in would be harmed if it did not receive the broadest range of opinions over the radio airwaves. Many politicians United States v. Zenith Corporation (1926), which conwere concerned that the public’s capacity to deliberate clusively stripped the secretary of his licensing power, and make informed decisions was severely weakened if to ﬁnally move Congress and the president to act. In a the airwaves were controlled by a small segment of the speech to Congress in December 1926, President Calpopulation, namely, wealthy businessowners. vin Coolidge demanded that something be done to With an eye on protecting the public interest and control the radio broadcasters’ expanding numbers beencouraging the free marketplace of ideas over the radio, Congress replaced the Radio Act of 1912 with fore chaos enveloped the industry (Hohenstein 2007, the Radio Act of 1927, which created a ﬁve-person Fed111–12). In short order, Senator Clarence Dill (D, WA) eral Radio Commission, whose job it was to grant or introduced a bill to establish an independent commisdeny radio licenses and determine the radio frequencies sion in 1926, while Representative White reintroduced and power levels of licensees. his bill in the House. In three cases before the Court of Appeals for the Partisan differences stalled the bills’ deliberations, District of Columbia—Great Lakes Broadcasting Co. v. Federal Radio Commission (1930), KFDB Broadcast as everyone was aware of radio’s potential as a camAssociation v. Federal Radio Commission (1931), and paign and governing tool. Harding, for example, was Trinity Methodist Church, South v. Federal Radio Comthe ﬁrst of many presidents to broadcast a nationwide mission (1932)—the federal appellate court upheld speech in 1922. Most Democrats and a handful of ReCongress’s decision to give to the Federal Radio Compublicans were, therefore, leery of transferring radio’s mission the power to regulate the radio airwaves in the regulation to the executive branch, as White’s bill propublic interest. While this power raised First Amendment concerns for many broadcasters, the courts have posed. Compromise was achieved with both chambers consistently held that the limited radio frequencies and accepting Dill’s idea of an independent commission, the federal government’s assignment of licenses allows but one that was bipartisan, appointed by the president, Congress to deny radio licenses based on content that is and conﬁrmed by the Senate (see Section 3). President not in the public interest. Coolidge signed the act on February 23, 1927. While these decisions did not directly implicate camSection four empowers the Federal Radio Commission paign activity, they were important because they upheld Congress’s right to regulate in this area. Years later, Con(FRC) to classify and ﬁx the location of radio stations gress passed the Federal Communications Act of 1934, and their broadcast zones to eliminate interference. The which replaced the Federal Radio Commission with the rationale for granting the FRC its powers was placed in Federal Communications Commission and vested it the part f: “to promote public convenience or interest or will power to enforce equal time, a new rule that required serve public necessity or the provisions of this Act.” This any radio licensee to provide equal opportunities to all thinking applied the Progressive idea of a public utility candidates in a race if it gave time to any one of the candidates. The equal time rule quickly became a controto radio, something like water or electricity that is a pubversial federal regulation of political campaigns, leading lic good, limited and regulated to preserve for everyone’s many to argue that Congress was directly infringing on beneﬁt. This wording appeared again in Section 9 that the First Amendment rights of radio broadcasters. dealt with issuing licenses. Attempting to ensure the fair treatment of candidates, section 18 required that any station that provided the candidate of one party the opportunity to use its station must also provide an opportunity for other candidates to do so. The act did not require stations to open

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themselves to political debates, but if a station did so, it could not selectively include or exclude candidates. All candidates must be afforded the same opportunity. This language was a precursor to that appearing in the Federal Communications Act of 1934 as the equal time doctrine. Section 19 required any company or, by extension, candidate buying advertising time on the radio to disclose who the paying sponsor or purchaser was. Section 29 forbade the FRC from censoring radio broadcasts, but the section also went on to say that “no person . . . shall utter any obscene, indecent, or profane language by means of radio communication.” The Radio Act of 1927 remained in effect until 1934, when the Federal Communications Act (see document) was passed, which perfected and expanded the earlier law.

FURTHER READING Craig, Douglas B. 2000. Fireside Politics: Radio and Political Culture in the United States, 1920– 1940. Baltimore: Johns Hopkins University Press. Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Lee, Frederic P. 1929. “Federal Radio Legislation.” Annals of the American Academy of Political and Social Science 142 (suppl.: Radio): 36–44.

• Document: Burroughs and Cannon v. United States, 290 U.S. 534 (1934) • Date: Decided January 8, 1934 • Signiﬁcance: By an 8–1 vote, the U.S. Supreme Court upheld the Federal Corrupt Practices Act of 1925 against a constitutional challenge ﬁled by two campaign ofﬁcials who were indicted for not ﬁling campaign contribution statements as required under the law. The Court held that Congress acted to protect the integrity of our vital institutions by passing this campaign ﬁnance legislation.

DOCUMENT Burroughs and Cannon v. United States, 290 U.S. 534 (1934) Justice Sutherland delivered the opinion of the Court An indictment returned by a grand jury sitting in the District of Columbia charges petitioners, in ten counts, with violations of the Federal Corrupt Practices Act of 1925. The pertinent provisions of the act are contained in sections [302, 303, and 304] . . . and in sections [305] and [314]. Section [302] deﬁnes the term, ‘political committee,’ as including any organization which accepts contributions for the purpose of inﬂuencing or attempting to inﬂuence the election of presidential and vice presidential electors in two or more states. Every political committee is required to have a chairman and a treasurer before any contribution may be accepted. One of the duties of the treasurer is to keep a detailed and exact account of all contributions made to or for the committee. Every person who receives a contribution for a political committee is required to render to the treasurer a detailed account thereof, with speciﬁed particulars. By section [305], the treasurer is required to ﬁle with the clerk of the House of Representatives, at designated times, a statement 81

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containing the name and address of each contributor, date and amount of each contribution, and other particulars, complete as of the day next preceding the date of ﬁling. By section [314](a), penalties of ﬁne and imprisonment are imposed upon any person who violates any of the provisions of the chapter; and, by subdivision (b), increased penalties are imposed upon any person who willfully violates any of those provisions. The ﬁrst eight counts of the indictment purport to charge petitioners with substantive violations of the act, and the ninth and tenth counts, with conspiracy to violate it—four of the eight counts charging willful violations; the other four merely charging violations, that is to say, unlawful violations. . . . First. We do not stop to describe the eight substantive counts. In the opinion of a majority of the court, there is a failure in each count to charge an offense under the statute. The conspiracy counts we hold are sufﬁcient. The ninth count charges with particularity that the petitioner Burroughs was the treasurer of a designated political committee from July 22, 1928, to and including March 16, 1929, which committee during that period accepted contributions and made expenditures for the purpose of inﬂuencing and attempting to inﬂuence the election of presidential and vice presidential electors in two states. The several amounts of certain contributions made for the committee are set forth, together with the dates when made and the name of the contributor. The count recites the duty of Burroughs under the statute to make the statements therein prescribed in respect of these contributions, and charges that both petitioners, one as treasurer and the other as chairman of the committee, ‘then well knowing all the premises aforesaid,’ unlawfully and feloniously did conspire together and with other persons to commit ‘the four willfully committed offenses’ charged against Burroughs as treasurer in the ﬁrst, third, ﬁfth, and seventh counts of the indictment, namely, willful failure to ﬁle the statements of such contributions required by section [305], the allegations of those counts being incorporated by reference as fully as if repeated. The count further alleges certain overt acts committed in pursuance of the conspiracy. The tenth count charges in substantially identical language a conspiracy to commit the four offenses not designated as willful, charged in the second, fourth, sixth, and eighth counts of the indictment, namely, unlawful failure to ﬁle the required statements, the allegations of those counts being likewise incorporated by reference as fully as if repeated. We are of opinion that these allegations are sufﬁcient in each count to charge a conspiracy to violate the pertinent provisions of the act. Knowledge of the facts constituting the contemplated substantive offenses is sufﬁciently alleged by the phrase, ‘well knowing all the premises aforesaid.’ . . . And intent unlawfully, or unlawfully and willfully, to evade performance of the statutory duty is clearly enough alleged by the statement that the accused conspired to do so. . . . Moreover, quite apart from the question of their legal sufﬁciency to charge substantive offenses, the eight counts which are incorporated by description set forth the pertinent facts, and may be considered in determining the adequacy of the conspiracy counts. . . . Second. The only point of the constitutional objection necessary to be considered is that the power of appointment of presidential electors and the manner of their appointment are expressly committed by section 1, art. 2, of the Constitution to the states, and that the congressional authority is thereby limited to determining ‘the Time of chusing the Electors, and the Day on which they shall give their Votes;

Chapter 2 • 1900 to 1939

which Day shall be the same throughout the United States.’ So narrow a view of the powers of Congress in respect of the matter is without warrant. The congressional act under review seeks to preserve the purity of presidential and vice presidential elections. Neither in purpose nor in effect does it interfere with the power of a state to appoint electors or the manner in which their appointment shall be made. It deals with political committees organized for the purpose of inﬂuencing elections in two or more states, and with branches or subsidiaries of national committees, and excludes from its operation state or local committees. Its operation, therefore, is conﬁned to situations which, if not beyond the power of the state to deal with at all, are beyond its power to deal with adequately. It in no sense invades any exclusive state power. While presidential electors are not officers or agents of the federal government . . . they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to inﬂuence the result is to deny to the nation in a vital particular the power of self-protection. Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption. In Ex parte Yarbrough, 110 U.S. 651 (1884), this court sustained the validity of section 5508 of the Revised Statutes, which denounced as an offense a conspiracy to interfere in certain speciﬁed ways with any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States; and of section 5520, which denounced as an offense any conspiracy to prevent by force, etc., any citizen lawfully entitled to vote from giving his support, etc., toward or in favor of the election of any lawfully qualiﬁed person as an elector for President or Vice President, or as a member of Congress. The indictments there under consideration charged Yarbrough and others with conspiracies in violation of these sections. The court held . . . that both sections were constitutional. It is true that, while section 5520 includes interferences with persons in giving their support to the election of presidential and vice presidential electors, the indictments related only to the election of a member of Congress. The court in its opinion, however, made no distinction between the two, and the principles announced, as well as the language employed, are broad enough to include the former as well as the latter. . . . And, answering the objection that the right to vote for a member of Congress is not dependent upon the Constitution or laws of the United States, but is governed by state law, the court further said: ‘If this were conceded, the importance to the general government of having the actual election—the voting for those members—free from force and fraud is not diminished by the circumstance that the qualiﬁcation of the voter is determined by the law of the state where he votes. It equally affects the government; it is as indispensable to the proper discharge of the great function of legislating for that government, that those who are to control this legislation

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shall not owe their election to bribery or violence, whether the class of persons who shall vote is determined by the law of the state, or by the laws of the United States, or by their united result.’ . . . These excerpts are enough to control the present case. To pursue the subject further would be merely to repeat their substance in other and less impressive words. The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted, and the end to be attained, are matters for congressional determination alone. . . . Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent the corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied. When to this is added the requirement contained in section [305], that the treasurer’s statement shall include full particulars in respect of expenditures, it seems plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption. The judgment of the court below will be afﬁrmed in respect of the ninth and tenth counts or the indictment only, and the cause remanded to the Supreme Court of the District for further proceedings in conformity with this opinion. It is so ordered.

ANALYSIS In Burroughs and Cannon v. United States (1934) the Court upheld the central provisions of the Federal Corrupt Practices Act of 1925 (see document), legislation that required congressional campaigns to disclose their contributors and limited their expenditures. The Court upheld the act against a challenge ﬁled by campaign operatives who were charged with violating the act’s reporting requirements. Methodist Bishop James Cannon Jr. was the chairman and Ada Burroughs the treasurer of a political committee that sought to inﬂuence the presidential and vice presidential elections in two states in 1928. The evidence, unearthed by Senator Gerald Nye (D, ND), was that Burroughs and Cannon had conspired to avoid the law by not disclosing their contributions to the committee. Following the Senate investigation, a grand jury indicted the two for violating the Federal Corrupt Practices Act. Burroughs and Cannon argued that the 1925 act violated article II, section 1, of the U.S. Constitution, which, according to the defendants, limited congressional regulation over presidential elections to “[choosing] the Electors, and the Day on which they shall give their Votes.” Speaking for the eight-member majority, Justice George Sutherland upheld the Federal Corrupt Practices Act of 1925 against the constitutional challenge, holding that the act did not in any way interfere with state powers under Article II, section 1. Furthermore, the Court provided substantial support for campaign ﬁnance and anticorruption legislation by noting that the presidential and vice presidential ofﬁces were so vital to American democracy that Congress could pass legislation to protect

Chapter 2 • 1900 to 1939

these vital institutions from “impairment and destruction.” The Court also took pains to note that the decision was consistent with past Court decisions, notably Ex Parte Yarbrough (1884), which upheld Congress’s authority to protect voters’ rights in congressional elections. Burroughs and Cannon v. United States (1934) was one of the ﬁrst Supreme Court decisions upholding campaign ﬁnance legislation. While campaign ﬁnance legislation since the 1970s has been met with First Amendment challenges, early-20thcentury reform legislation was resisted on the grounds that the Constitution’s federal structure did not empower Congress to legislate on elections, because elections were left to state control. The Court made it abundantly clear in this case, however, that elections were so fundamental to American democracy that protecting the integrity of our democratically elected ofﬁces should be within Congress’s authority.

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• Document: The Federal Communications Act of 1934 • Date: Signed into law by President Franklin D. Roosevelt on June 19, 1934 • Signiﬁcance: In revisiting the Radio Act of 1927, Congress updated and improved that legislation to reﬂect the developing norms of the broadcast industry and the evolving understanding of the public interest as a rationale for regulating radio. The equal time provision became a signiﬁcant rule by which the newly created FCC could ensure that all candidates were treated fairly by radio station owners.

DOCUMENT The Federal Communications Act of 1934, PL 73-416 An Act to provide for the regulation of interstate and foreign communication by wire or radio, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SEC. 1. For the purposes of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efﬁcient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the “Federal Communications Commission”, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act. . . . 86

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SEC. 4. (a) The Federal Communications Commission (in this Act referred to as the “Commission”) shall be composed of seven commissioners appointed by the President, by and with the advice and consent of the Senate, one of whom the President shall designate as chairman. (b) Each member of the Commission shall be a citizen of the United States. No member of the Commission or person in its employ shall be ﬁnancially interested in the manufacture or sale of radio apparatus or of apparatus for wire or radio communication; in communication by wire or radio or in radio transmission of energy; in any company furnishing services or such apparatus to any company engaged in communication by wire or radio or to any company manufacturing or selling apparatus used for communication by wire or radio; or in any company owning stocks, bonds, or other securities of any such company; nor be in the employ of or hold any ofﬁcial relation to any person subject to any of the provisions of this Act, nor own stocks, bonds, or other securities of any corporation subject to any of the provisions of this Act. Such commissioners shall not engage in any other business, vocation, or employment. Not more than four commissioners shall be members of the same political party. (c) The commissioners ﬁrst appointed under this Act shall continue in ofﬁce for the terms of one, two, three, four, ﬁve, six, and seven years, respectively, from the date of the taking effect of this Act, the term of each to be designated by the President, but their successors shall be appointed for terms of seven years; except that any person chosen to ﬁll a vacancy shall be appointed only for the unexpired term of the commissioner whom he succeeds. No vacancy in the Commission shall impair the right of the remaining commissioners to exercise all the powers of the Commission. . . . (h) Four members of the Commission shall constitute a quorum thereof. The Commission shall have an ofﬁcial seal which shall be judicially noticed. (i) The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions. SEC. 301. It is the purpose of this Act, among other things, to maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license. No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act. . . . SEC. 307. (a) The Commission, if public convenience, interest, or necessity will be served thereby, subject to the limitations of this Act, shall grant to any applicant therefore a station license provided for by this Act. . . . (b) It is hereby declared that the people of all the zones established by this title are entitled to equality of radio broadcasting service, both of transmission and of reception, and in order to provide said equality the Commission shall as nearly as possible make and maintain an equal allocation of broadcasting licenses, of bands of frequency, of periods of time for operation, and of station power, to each of said zones when and insofar as there are applications therefore; and shall make a fair and

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equitable allocation of licenses, frequencies, time for operation, and station power to each of the States and the District of Columbia, within each zone, according to population. The Commission shall carry into effect the equality of broadcasting service hereinbefore directed, whenever necessary or proper, by granting or refusing licenses or renewals of licenses, by changing periods of time for operation, and by increasing or decreasing station. . . . SEC. 309. (a) If upon examination of any application for a station license or for the renewal or modiﬁcation of a station license the Commission shall determine that public convenience, interest, or necessity would be served by the granting thereof, it shall authorize the issuance, renewal, or modiﬁcation thereof in accordance with said ﬁnding. In the event the Commission upon examination of any such application does not reach such decision with respect thereto, it shall notify the applicant thereof, shall ﬁx and give notice of a time and place for hearing thereon, and shall afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe. . . . SEC. 311. The Commission is hereby directed to refuse a station license and/or the permit hereinafter required for the construction of a station to any person (or to any person directly or indirectly controlled by such person) whose license has been revoked by a court under section 313, and is hereby authorized to refuse such station license and/or permit to any other person (or to any person directly or indirectly controlled by such person) which has been ﬁnally adjudged guilty by a Federal court of unlawfully monopolizing or attempting unlawfully to monopolize, radio communication, directly or indirectly, through the control of the manufacture or sale of radio apparatus, through exclusive trafﬁc arrangements, or by any other means, or to have been using unfair methods of competition. The granting of a license shall not estop the United States or any person aggrieved from proceeding against such person for violating the law against unfair methods of competition or for a violation of the law against unlawful restraints and monopolies and/or combinations, contracts, or agreements in restraint of trade, or from instituting proceedings for the dissolution of such corporation. SEC. 312 (a) Any station license may be revoked for false statements either in the application or in the statement of fact which may be required under section 308 hereof, or because of conditions revealed by such statements of fact as may be required from time to time which would warrant the Commission in refusing to grant a license on an original application, or for failure to operate substantially as set forth in the license, or for violation of or failure to observe any of the restrictions and conditions of this Act or of any regulation of the Commission authorized by this Act or by a treaty ratiﬁed by the United States: (b) Any station license hereafter granted under the provisions of this Act or the construction permit required hereby and hereafter issued, may be modiﬁed by the Commission either for a limited time or for the duration of the term thereof, if in the judgment of the Commission such action will promote the public convenience, interest, or necessity, or the provisions of this Act or of any treaty ratiﬁed by the United States will be more fully complied with: Provided, however, That no such order of modiﬁcation shall become ﬁnal until the holder of such outstanding license or permit shall have been notiﬁed in writing of the proposed action and the grounds or reasons therefore and shall have been given reasonable opportunity to show cause why such an order of modiﬁcation should not issue. . . .

Chapter 2 • 1900 to 1939

SEC. 315. If any licensee shall permit any person who is a legally qualiﬁed candidate for any public ofﬁce to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that ofﬁce in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate. . . . SEC. 317. All matter broadcast by any radio station for which service, money, or any other valuable consideration is directly or indirectly paid, or promised to or charge or accepted by, the station so broadcasting, from any person, shall, at the time the same is so broadcast, be announced as paid for or furnished, as the case may be, by such person.

ANALYSIS

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DID YOU KNOW? The Public Utility Holding Company Act of 1935, PL 74-333 49 Stat. 838 The early 20th century witnessed a growing number of holding companies in America that were created to own, or “hold,” controlling stock interests in many smaller companies that produced goods or services. Holding companies generated large proﬁts for their stockholders while avoiding federal and state regulations. The latter was particularly true of holding companies that controlled public utilities. By the early 1930s, approximately 12 holding companies owned electric utilities that generated over 70 percent of the power in the United States (see Hyman 1988; Hawes 1977). With the ﬁnancial collapse of many electric and gas utilities during the Depression, Congress considered the PUHC bill. Its most controversial provision empowered the Securities and Exchange Commission (SEC) to dissolve any holding company if it could not justify its existence beyond merely making proﬁts for its shareholders, the socalled death sentence provision. Democrats came under heavy pressure from public utility lobbyists and many constituent letters and telegrams opposed to the bill, causing many Democrats to vote to remove the death sentence provision (Hohenstein 2007, 136). When Democrats received another round of letters and telegrams, they discovered that the holding companies and utilities had orchestrated the mailings. The bill’s ﬁnal version lacked the death sentence, but contained important provisions severely limiting the political activities of holding companies. Section 79 (h) made it illegal for a holding company to use the mails or any other means in interstate commerce to contribute to any person in a primary or general election for any elected ofﬁce at any level of government. Likewise, contributions to any person seeking an appointment to any government position at any level were forbidden. Donations were also banned to political parties. This language was far more restrictive than that of the Tillman Act, and it was made possible because Congress used its authority under the Commerce Clause to regulate interstate commerce.

When Congress passed the Radio Act of 1927, it was intended as a temporary measure. Radio’s rapidly developing technology and ﬂedgling broadcast industry needed time to mature. For example, in 1928 the National Association of Broadcasters released an ethics code and expected it to be self-enforcing. The powers granted to the Federal Radio Commission were tested in the federal courts and found to be constitutional, but a Nebraska Supreme Court decision, Sorenson v. Wood (1932) 123 Neb. 340, N.W. 82, ruling that owners were liable for any libelous statements made by anyone using its station, caused apprehension among broadcasters and the FRC that it would inhibit the free and open exchange of ideas (Hohenstein 2007, 118). In preparation for reconsidering the 1927 act, the Commerce Department studied radio from a number of perspectives and released “A Study of Communications by an Interdepartmental Committee” in January 1934, which proved valuable for the congressional hearings on the bill. There was much discussion of allotting frequencies to public and nonproﬁt organizations as well as private companies, but no one challenged the principle that a federal agency should regulate the airwaves and issue and revoke licenses using the public interest standard, which was captured in the act in Section 309, among other places, as “public convenience, interest, or necessity” (Hohenstein 2007, 118–19).

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During ﬂoor debate, lawmakers worried that operators could use their stations to promote candidates they DID YOU KNOW? favored while denying access to those they opposed. To reduce their anxieties, Section 315, the equal acIn section (i), Congress severely restricted holding comcess provision, was inserted in the bill and empowered panies from lobbying Congress. Modern campaign ﬁthe commission to enforce it. It is important to unnance and lobbying regulations can trace their origins derstand that Section 315 did not require an owner to to the PUHCA. The PUHCA was repealed on February 8, give broadcast time to all candidates; instead, the law 2006, when a new law, the Energy Policy Act of 2005, mandated that any owner who sold broadcast time to took effect. one candidate could not refuse a request to purchase Further Reading broadcast time from any other candidate. Thus, by Hawes, Douglas W. 1977. “Public Utility Holding Comguaranteeing equal access to radio, Congress hoped to pany Act of 1935—Fossil or Foil?” Vanderbilt Law ensure an open and balanced exchange of ideas. The Review 30: 605. equal access (or time) rule was repealed by Congress as Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: part of the Federal Election Campaign Act of 1971 (see Northern Illinois University Press. document). Hyman, Leonard S. 1983. America’s Electric Utilities: The other sections of the act included here describe Past, Present and Future. Arlington, VA: Public Utilithe powers of the Federal Communications Comties Reports. Phillips, Charles F. 1993. The Regulation of Public Utilimission (FCC), which replaced the FRC, and recomties: Theory and Practice. Arlington, VA: Public Utilimitted the FCC to assigning or revoking licenses in ties Reports. order to “promote the public convenience, interest, or necessity.” The Federal Communication Act was replaced by the Telecommunications Act in 1996.

3 1940 TO 1969 The middle decades of the 20th century witnessed great changes in American society—the civil rights movement, the sexual revolution, the dawn of the youth culture, the consumer-oriented economy, the communications and information revolutions, and the institutionalization of organized labor—that were reﬂected in its political systems. Federal and state governments were assaulted by reformers demanding that their structures and processes be modernized. But, as middle America initially expressed discomfort with and even resistance to the changes swirling around it, so too did the political establishment. Entries in this chapter focus mainly on labor unions’ political activities and the efforts of the Federal Communications Commission (FCC) to accommodate its rules to the increasing importance of television as a political tool. Attempts in the late 1960s to transform the ﬁnancing of presidential elections served as a foundation for future major reform legislation, while several Supreme Court decisions protected minor party candidates’ ballot access in primary and general elections that became precedents in later cases. The Hatch Acts of 1939 and 1940 addressed congressional concerns with politicization of federal (1939 act) and state and local (1940 act) (see document) civil servants, namely, those government workers hired through merit appointment rather than patronage. Republicans and conservative Democrats advanced the 1939 law because they feared that, as President Franklin D. Roosevelt expanded the federal bureaucracy, government workers would throw their support to Democratic candidates. The act’s proponents publicly argued that the act was intended to impede party ofﬁcials from compelling government employees to campaign and vote for certain candidates to keep their jobs. The 1939 act banned federal workers from engaging in a variety of political activities; the 1940 amendments extended the prohibition to state and local civil servants and imposed a $5,000 limit on individual contributions to federal candidates and a $3 million ceiling on expenditures by political parties supporting federal candidates. Organized labor’s rise following passage of the National Labor Relations (Wagner) Act in 1935 contributed to the electoral success of many Democrats, particularly President Roosevelt, who championed its cause, but threatened most Republicans and conservative, mostly Southern, Democrats because of their antiunion views. With liberal Democrats controlling the federal government, labor’s foes waited patiently for their opportunity to shrink the unions’ political inﬂuence. Their chance arrived following several coal mine strikes, and with the grudging consent of FDR and his allies, the War Labor Disputes (Smith-Connally) Act became law in 1943.

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The act’s main purpose was to protect the nation’s defense industries by prohibiting work stoppages at miliDID YOU KNOW? tarily sensitive companies, but enemies of unions also included a ban on all union contributions to federal An Act to Prevent Pernicious Political Activities candidates. Before the act expired at the end of World (The Hatch Act of 1939), 53 Stat. 1147 War II, the Labor Management Relations (Taft-Hartley) Act (see document) was passed in 1947, and it reﬁned When Franklin D. Roosevelt became president and the and expanded many of the union practices forbidden Democrats took control of Congress in 1933, about in Smith-Connally while permanently outlawing cor70 percent of the bureaucracy remained unclassiﬁed, or porate and union political contributions and expendinot covered, under the 1883 Civil Service Act. FDR created new federal agencies to stimulate the economy by tures made directly from their treasuries. giving people jobs in the midst of the Great Depression. The question of the constitutionality of Taft-Hartley Republicans feared the president’s growing popularity appeared ﬁrst before the Supreme Court in United States and exploited the division within the Democratic Party v. Congress of Industrial Organizations, 335 U.S. 106, in by leveling charges that Works Progress Administration 1948. While the more liberal justices wished to have employees did campaign work for FDR and his favored Taft-Hartley declared unconstitutional as an infringecandidates in the previous two elections. Republicans also argued that large contributions to Democrats from ment on unions’ speech rights, the Court declined to labor unions were unfair since it was illegal for corpoaddress the constitutional question. However, in United rations to donate under the Tillman Act (see document). States v. United Auto Workers, 352 U.S. 567 (1957), the With union membership and federal employment growCourt upheld the constitutionality of the act, ruling ing, Republicans anticipated even more money and that Congress possessed legitimate reasons for protectmanpower ﬂowing from unions and federal workers in ing the political process from the distorting effects of future elections and sought to sever the links before the next election. Senator Carl A. Hatch’s (D, NM) bill helped the aggregate wealth of both corporations and unions. to achieve one objective, uniting disgruntled Democrats In United States v. Classic, 313 U.S. 299 (1941) (see with Republicans to form the congressional Conservative document), the Supreme Court overturned Newberry v. Coalition. The act’s sections one through ﬁve made it ilUnited States (1921) when it ruled that the federal govlegal for any person to coerce or bribe federal workers ernment can oversee primary elections to protect votto vote against their conscience, which was comparable ers’ and candidates’ rights. The Classic decision provides to provisions found in the Naval Appropriations Act of 1867 and the Anti-Assessment Act of 1877 (see docuthe legal rationale for federal and state regulation of priments). Sections six and seven were intended to prohibit mary elections today. federal money from ﬁnding its way into the hands of The FCC issued two statements regulating radio and political parties and candidates. The heart of the act was television stations’ political broadcasts. In 1941 the section nine, which barred all federal employees from Mayﬂower Doctrine established a rule banning on-air engaging in any political activity save the act of voteditorializing unless the licensee also aired opposing eding. Workers were also forbidden from holding leadership or other management positions in political parties. itorials. The Supreme Court upheld the FCC’s authority Employees violating the act could be ﬁred. Court chalto issue station licenses in N.B.C., Inc. v. United States, lenges were brought against the act, but its constitution319 U.S. 190. (1943), supporting the FCC’s power to ality was upheld. Despite the act’s broad sweep, Hatch control the airwaves in the public interest. The FCC iswasn’t ﬁnished, and he introduced amendments in 1940 sued a more sweeping report in 1949 that transformed (see document) to include state government employees. the Mayﬂower Doctrine into the Fairness Doctrine (see document), which required broadcasters to select issues of public concern and present multiple perspectives on them so as to educate and inspire public discourse. Congress asserted its authority in this area in 1959 when it passed amendments to the Federal Communications Act (see document), which clariﬁed the equal time (or opportunity) rule (an FCC regulation that required broadcasters to provide equal air time to all candidates in a race should one candidate be allowed on air) as well as reﬁning and endorsing the Fairness Doctrine and establishing comparable advertising rates for political candidates.

Chapter 3 • 1940 to 1969

The Supreme Court endorsed the constitutionality of the doctrine when it rendered its decision in Red Lion Broadcasting Co. v. Federal Communciations Commission, 395 U.S. 367 (1969) (see document). In 1966 Congress passed the Presidential Election Campaign Fund Act, the ﬁrst legislation to require public funding for presidential candidates. Divisions within the Democratic Party led to the law’s demise in 1967; however, the law’s principles would reappear in future legislation. In 1968 the Supreme Court rendered a decision in Williams v. Rhodes, 393 U.S. 23 (see document) that made it more difﬁcult for states to bar third party candidates from general election ballots. Following the decision, however, states enacted other stringent election laws that effectively stunted the growth and development of minor parties. Unfortunately for minor parties, as the Court’s composition changed following Williams, so too did its opinions on the reasonableness of state ballot access laws.

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DID YOU KNOW? Further Reading Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Patterson, James T. 1967. Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933–1939. Lexington: University of Kentucky Press. Rose, Henry. 1962. “A Critical Look at the Hatch Act.” Harvard Law Review 75, no. 3:48–64. Thompson, Joanne J. 1994. “Social Workers and Politics: Beyond the Hatch Act.” Social Work 39, no. 4:457–65. U.S. Ofﬁce of Special Counsel. 2005. “Political Activity and the Federal Employee.” 29 June. http://www.osc. gov/library.htm#ha_fed.

• Document: The 1940 Amendments to the Hatch Act of 1939 • Date: Signed into law by President Franklin D. Roosevelt on July 19, 1940 • Signiﬁcance: The amendments extended the provisions of the original 1939 act to state government employees whose salaries are, in whole or part, subsidized with federal money. It also imposed limits of $5,000 on individual contributions to federal candidates and $3 million on total contributions to and expenditures by political committees.

DOCUMENT Amendments to the Hatch Act (1940), 54 Stat. 767 AN ACT to extend to certain ofﬁcers and employees in the several States and the District of Columbia the provisions of the Act entitled “An Act to prevent pernicious political activities,” approved August 2, 1939. . . . That section 2 of the Act entitled “An Act to prevent pernicious political activities”, approved August 2, 1939, is amended to read as follows: “Sec. 2. It shall be unlawful for (1) any person employed in any administrative position by the United States, or by any department, independent agency, or other agency of the United States (including any corporation controlled by the United States or any agency thereof, and any corporation all of the capital stock of which is owned by the United States or any agency thereof), or (2) any person employed in any administrative position by any State, by any political subdivision or municipality of any State, or by any agency of any State or any of its political subdivisions or municipalities (including any corporation controlled by any State or by any such political subdivision, municipality, or agency, and any corporation all of the capital stock of which is owned by any State or by any such political 94

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subdivision, municipality, or agency), in connection with any activity which is ﬁnanced in whole or in part by loans or grants made by the United States, or by any such department, independent agency, or other agency of the United States, to use his ofﬁcial authority for the purpose of interfering with, or affecting, the election or the nomination of any candidate for the ofﬁce of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, or Delegate or Resident Commissioner from any Territory or insular possession.” . . . SEC. 4. Such Act of August 2, 1939, is further amended by adding at the end thereof the following new sections: “Sec. 12. (a) No ofﬁcer or employee of any State or local agency whose principal employment is in connection with any activity which is ﬁnanced in whole or in part by loans or grants made by the United States or by any Federal agency shall (1) use his ofﬁcial authority or inﬂuence for the purpose of interfering with an election or a nomination for ofﬁce, or affecting the result thereof, or (2) directly or indirectly coerce, attempt to coerce, command, or advise any other such ofﬁcer or employee to pay, lend, or contribute any part of his salary or compensation or anything else of value to any party, committee, organization, agency, or person for political purposes. No such ofﬁcer or employee shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. . . . “(b) If any Federal agency charged with the duty of making any loan or grant of funds of the United States for use in any activity by any ofﬁcer or employee to whom the provisions of subsection (a) are applicable has reason to believe that any such ofﬁcer or employee has violated the provisions of such subsection, it shall make a report with respect thereto to the United States Civil Service Commission (hereinafter referred to as the ‘Commission’). . . . “(d) The Commission is authorized to adopt such reasonable procedure and rules and regulations as it deems necessary to execute its functions under this section. The Civil Service Commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all documentary evidence relating to any matter pending, as a result of this Act, before the Commission. “SEC. 14. For the purposes of this Act, persons employed in the government of the District of Columbia shall be deemed to be employed in the executive branch of the Government of the United States, except that for the purposes of the second sentence of section 9 (a) the Commissioners and the Recorder of Deeds of the District of Columbia shall not be deemed to be ofﬁcers or employees. “SEC. 15. The provisions of this Act which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classiﬁed civil service of the United States by the provisions of the civil-service rules prohibiting such employees from taking any active part in political management or in political campaigns. . . . “SEC. 13. (a) It is hereby declared to be a pernicious political activity, and it shall hereafter be unlawful, for any person, directly or indirectly, to make contributions in

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an aggregate amount in excess of $5,000, during any calendar year, or in connection with any campaign for nomination or election, to or on behalf of any candidate for an elective Federal ofﬁce (including the ofﬁces of President of the United States and Presidential and Vice Presidential electors), or to or on behalf of any committee or other organization engaged in furthering, advancing or advocating the nomination or election of any candidate for any such ofﬁce or the success of any national political party. This subsection shall not apply to contributions made to or by a State or local committee or other State or local organization. “(b) For the purposes of this section— “(1) The term ‘person’ includes an individual, partnership, committee, association, corporation, and any other organization or group of persons. “(2) The term ‘contribution’ includes a gift, subscription, loan, advance, or deposit of money, or anything of value, and includes a contract, promise, or agreement, whether or not legally enforceable, to make a contribution. “(c) It is further declared to be a pernicious political activity, and it shall hereafter be unlawful for any person, individual, partnership, committee, association, corporation, and any other organization or group of persons to purchase or buy any goods, commodities, advertising, or articles of any kind or description where the proceeds of such a purchase, or any portion thereof, shall directly or indirectly inure to the beneﬁt of or for any candidate for an elective Federal ofﬁce (including the ofﬁces of President of the United States, and Presidential and Vice Presidential electors) or any political committee or other political organization engaged in furthering, advancing, or advocating the nomination or election of any candidate for any such ofﬁce or the success of any national political party: Provided, That nothing in this sentence shall be construed to interfere with the usual and known business, trade, or profession of any candidate. “(d) Any person who engages in a pernicious political activity in violation of any provision of this section, shall upon conviction thereof be ﬁned not more than $5,000 or imprisoned for not more than ﬁve years. In all cases of violations of this section by a partnership, committee, association, corporation, or other organization or group of persons, the ofﬁcers, directors, or managing heads thereof who knowingly and willfully participate in such violation, shall be subject to punishment as herein provided. “(e) Nothing in this section shall be construed to permit the making of any contribution which is prohibited by any provision of law in force on the date this section takes effect. Nothing in this Act shall be construed to alter of amend any provisions of the Federal Corrupt Practices Act of 1925, or any amendments thereto. . . . SEC. 6. Such Act of August 2, 1939, is further amended by adding at the end thereof the following new section: “SEC. 20. No political committee shall receive contributions aggregating more than $3,000,000, or make expenditures aggregating more than $3,000,000, during any calendar year. For the purposes of this section, any contributions received and any expenditures made on behalf of any political committee with the knowledge and consent of the chairman or treasurer of such committee shall be deemed to be received or made by such committee. Any violation of this section by any political committee shall be deemed also to be a violation of this section by the chairman and the treasurer of such committee and by any other person responsible for such violation. Terms used in this section shall have the meaning assigned to them in section

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302 of the Federal Corrupt Practices Act, 1925, and the penalties provided in such Act shall apply to violations of this section.”

ANALYSIS Concerns over politicization of the federal workforce emerged in the mid-1930s, and Congress responded in 1939 by passing the Hatch Act (53 Stat. 1147). The act forbade federal employees from participating in all political activities, except voting, and banned them from leadership positions in parties. But the act covered only federal bureaucrats, so in 1940 Senator Carl Hatch (D, NM) attempted to extend the legislation’s provisions to state and local government workers. His bill encountered opposition from some Democrats, however, when they discovered that the bill’s prohibition on political activity included lawmakers’ Washington ofﬁce staff. Senator Sherman Minton (D, IN) introduced an amendment to allow civil service employees to engage in political activities while protecting them from efforts to sway their votes, which would have undermined the original Hatch Act. In the subsequent debate, senators reviewed an issue covered in the House in 1939: whether forbidding government workers from participating in politics, other than voting, was a violation of their fundamental rights of speech and assembly. But another amendment offered by Senator Fred Brown (D, NH) changed the debate’s course when it banned all political activities and contributions by all corporate ofﬁcers, stockholders, and employees whose companies proﬁted from federal grants, loans, tariffs, or contracts (Hohenstein 2007, 147–49). Money’s inﬂuence on elections replaced workers’ rights, with Senator Minton claiming that money was corrupting the political system, and for examples he referenced the hundreds of thousands of dollars contributed by the Pews, Rockefellers, DuPonts, and J. P. Morgan during the 1936 elections (Hohenstein 2007, 149; Mutch 1988, 34). With the Senate locked in a ﬁlibuster, Senator John Bankhead (D, AL) presented yet another amendment that imposed a $5,000 limit on contributions by individuals or corporations for political purposes, which he anticipated would defeat the bill and break the legislative logjam in the chamber. Much to his surprise, a coalition of Democrats and Republicans accepted the amendment, and the revised bill passed the Senate, 58–28, on March 18, 1940 (Hohenstein 2007, 149). With Roosevelt’s endorsement, the bill went to the House Judiciary Committee, which proceeded to add a new provision designed to sink the bill. Introduced by Representative Francis E. Walter (D, PA), it proposed a $3 million limit on campaign expenditures by the national parties’ committees in any year (Mutch 1988, 34). This amount was signiﬁcantly less than that expended by either party in 1939. Despite the effort of William H. Summers (D, TX), the committee’s chair, to hold the bill from a ﬂoor vote, the House voted a discharge petition, which removed the bill from the committee and sent it directly to the ﬂoor. After lengthy debate, the House passed its amended bill, the Senate accepted the House version, and FDR signed it on July 19, 1940. The amendment to section 2 of the 1939 Hatch Act extended the ban on political participation to state and local government employees whose salaries were drawn in total or in part from federal funding. Given the penetration of federal dollars into state governments, many, though by no means all, state and local civil servants were

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Clifford K. Berryman’s “The Hatch Act.” (Library of Congress, Prints & Photographs Division, LC-USZ62–17291.)

affected by the law. The intention was to guarantee the political neutrality of civil servants by protecting them from party leaders who might coerce or entice them to vote or engage in campaign work. Note also that section 14 identiﬁed all federal employees working in the District of Columbia’s government as covered by the act. This was necessary as the district is neither a city nor a state (it is a constitutionally created entity that Congress oversees), requiring that it had to be expressly identiﬁed for inclusion in the statute. Section 13 imposed a yearly limit of $5,000 on contributions to any candidate for federal ofﬁce or to any party or organization promoting a federal candidate. Moreover, the $5,000 limit included the purchase of goods, “commodities, advertising, or articles of any kind or description” that beneﬁted candidates or parties or political organizations, language that was targeted at labor unions, whose contributions to candidates were as likely to be indirect support, for example, volunteers working for candidates, as direct monetary donations. Finally, the new section 20

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imposed an annual $3 million ceiling on contributions and expenditures by political parties. Ironically, an interpretation of the contribution limits was released by the Republican National Committee, which argued that the $5,000 ceiling “applied only to the congressional, senatorial, and national committees . . . and that amounts over $5,000 should be paid to state and local committees.” Moreover, the $3 million limit affected only the national parties and not independently organized “nonparty organizations” (Mutch 1988, 35). Within months, independent, nonparty committees with conservative orientation appeared and claimed they could raise and spend more than $3 million to support candidates they favored. Democrats expressed outrage over this tactic, but they quickly formed their own independent, nonparty committees during the 1940 election, and by the presidential campaign’s end, both parties’ total expenditures far exceeded $3 million (Overacker 1946, 30–36). The inability of the Hatch amendments to restrict contributions was patently obvious, but Congress did not revisit funding caps until the 1970s. For decades, the Hatch Act has been mired in controversy, with many federal employees arguing that the act limits their First Amendment speech and associational freedoms. While the Supreme Court heard their claims in United Public Workers of America v. Mitchell, 330 U.S. 75 (1947) and United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973), the Court decided that the government’s interest in the “elemental need for order” superseded the First Amendment rights of government employees. In 1993 the Hatch Act Reform Amendments were passed, which relaxed many of the original legislation’s restrictions while retaining those that prevented civil servants from engaging in political activities while in the workplace.

FURTHER READING Eccles, James R. 1981. The Hatch Act and the American Bureaucracy. New York: Vantage. Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Mutch, Robert E. 1988. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law. New York: Praeger. Overacker, Louise. 1946. Presidential Campaign Funds. Boston: Boston University Press.

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DID YOU KNOW? In the Matter of the Mayﬂower Broadcasting Corporation, Boston, Massachusetts, for Construction Permit, 8 F.C.C. 333, 1938 The Federal Communications Commission (FCC) replaced the Federal Radio Commission when Congress passed the Federal Communications Act of 1934 (see document). Congress empowered the FCC to regulate the limited radio frequencies as a public resource and to consider the public’s interest when issuing broadcast licenses. After reviewing the Mayﬂower Broadcasting Corporation’s license application, the FCC denied it for ﬁnancial reasons. But in the course of its review, it discovered that Mayﬂower’s parent company, the Yankee Network, had engaged in broadcasting editorials that favored the positions and candidates of the network’s owners. Yankee Network admitted it had indeed aired editorials on its station, WAAB, in 1937 and 1938, but it had ceased the practice thereafter. The FCC reasoned that, because radio was a limited, national resource, those entrusted with licenses must air balanced and fair treatments of public issues. In a democracy, the public should form its own opinions, and to do so, people need information. A free and open exchange of information does not occur, in the opinion of the FCC, when broadcasters advocate only their owners’ views. The Mayﬂower Doctrine, therefore, banned licensees from broadcasting editorials; however, implied in the rule was an understanding that station owners could air multiple editorials that covered the full array of perspectives on an issue. In 1949 the FCC clariﬁed its position when it issued a revised policy, the Fairness Doctrine (see document).

Further Reading Benjamin, Louise M. 1987. “Broadcast Campaign Precedents from the 1924 Presidential Election.” Journal of Broadcasting & Electronic Media (Washington, DC), Fall. Brennan, Timothy A. 1989. “The Fairness Doctrine as Public Policy.” Journal of Broadcasting & Electronic Media (Washington, DC), Fall. Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Rowan, Ford. 1984. Broadcast Fairness: Doctrine, Practice, Prospects: A Reappraisal of the Fairness Doctrine and Equal Time Rule. New York: Longmans. Simmons, Steven J. 1978. The Fairness Doctrine and the Media. Berkeley: University of California Press.

• Document: United States v. Classic, 313 U.S. 299 (1941) • Date: Decided May 26, 1941 • Signiﬁcance: In this decision, the U.S. Supreme Court overturned Newberry v. United States, 256 U.S. 232 (1921) and ruled that the Constitution granted Congress the right to regulate primary elections. The Court cited the divisions between the justices in the Newberry case as well as how important and integral primary elections are in many states.

DOCUMENT United States v. Classic, 313 U.S. 299 (1941) Mr. Justice Stone delivered the opinion of the Court Two counts of an indictment found in a federal district court charged that appellees, Commissioners of Elections, conducting a primary election under Louisiana law, to nominate a candidate of the Democratic Party for representative in Congress, willfully altered and falsely counted and certiﬁed the ballots of voters cast in the primary election. The questions for decision are whether the right of qualiﬁed voters to vote in the Louisiana primary and to have their ballots counted is a right ‘secured . . . by the Constitution’ within the meaning of 19 and 20 of the Criminal Code, and whether the acts of appellees charged in the indictment violate those sections. On September 25, 1940, appellees were indicted . . . for violations of 19 and 20 of the Criminal Code. The ﬁrst count of the indictment alleged that a primary election was held on September 10, 1940, for the purpose of nominating a candidate of the Democratic Party the ofﬁce of Representative in Congress for the Second Congressional District of Louisiana, to be chosen at an election to be held on November 10th; that in that district nomination as a candidate of the Democratic Party is 100

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and always has been equivalent to an election; that appellees were Commissioners of Election, selected in accordance with the Louisiana law to conduct the primary in the Second Precinct of the Tenth Ward of New Orleans, in which there were ﬁve hundred and thirty-seven citizens and qualiﬁed voters. The charge based on these allegations, was that the appellees conspired with each other and with others unknown, to injure and oppress citizens in the free exercise and enjoyment of rights and privileges secured to them by the Constitution and Laws of the United States, namely, (1) the right of qualiﬁed voters who cast their ballots in the primary election to have their ballots counted as cast for the candidate of their choice, and (2) the right of the candidates to run for the ofﬁce of Congressman and to have the votes in favor of their nomination counted as cast. The overt acts alleged were that the appellees altered eighty-three ballots cast for one candidate and fourteen cast for another, marking and counting them as votes for a third candidate, and that they falsely certiﬁed the number of votes cast for the respective candidates to the chairman of the Second Congressional District Committee. The second count, repeating the allegations of fact already detailed, charged that the appellees, as Commissioners of Election willfully and under color of law subjected registered voters at the primary who were inhabitants of Louisiana to the deprivation of rights, privileges and immunities secured and protected by the Constitution and Laws of the United States, namely their right to cast their votes for the candidates of their choice and to have their votes counted as cast. It further charged that this deprivation was effected by the willful failure and refusal of defendants to count the votes as cast, by their alteration of the ballots, and by their false certiﬁcation of the number of votes cast for the respective candidates in the manner already indicated. . . . Section 19 of the Criminal Code condemns as a criminal offense any conspiracy to injure a citizen in the exercise ‘of any right or privilege secured to him by the Constitution or laws of the United States’. Section 20 makes it a penal offense for anyone who, ‘acting under color of any law’ ‘willfully subjects, or causes to be subjected, any inhabitant of any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States’. The Government argues that the right of a qualiﬁed voter in a Louisiana congressional primary election to have his vote counted as cast is a right secured by Article I, 2 and 4 of the Constitution, and that a conspiracy to deprive the citizen of that right is a violation of 19, and also that the willful action of appellees as state ofﬁcials, in falsely counting the ballots at the primary election and in falsely certifying the count, deprived qualiﬁed voters of that right and of the equal protection of the laws guaranteed by the Fourteenth Amendment, all in violation of 20 of the Criminal Code. Article I, 2 of the Constitution, commands that ‘The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the qualiﬁcations requisite for Electors of the most numerous Branch of the State Legislature’. By 4 of the same article ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators’. Such right as is secured by the Constitution to qualiﬁed voters to

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choose members of the House of Representatives is thus to be exercised in conformity to the requirements of state law subject to the restrictions prescribed by 2 and to the authority conferred on Congress by 4, to regulate he times, places and manner of holding elections for representatives. We look then to the statutes of Louisiana here involved to ascertain the nature of the right which under the constitutional mandate they deﬁne and confer on the voter and the effect upon its exercise of the acts with which appellees are charged, all with the view to determining, ﬁrst, whether the right or privilege is one secured by the Constitution of the United States, second, whether the effect under the state statute of appellee’s alleged acts is such that they operate to injure or oppress citizens in the exercise of that right within the meaning of 19 and to deprive inhabitants of the state of that right within the meaning of 20. . . . Pursuant to the authority given by 2 of Article I of the Constitution, and subject to the legislative power of Congress under 4 of Article I, and other pertinent provisions of the Constitution, the states are given, and in fact exercise a wide discretion in the formulation of a system for the choice by the people of representatives in Congress. In common with many other states Louisiana has exercised that discretion by setting up machinery for the effective choice of party candidates for representative in Congress by primary elections and by its laws it eliminates or seriously restricts the candidacy at the general election of all those who are defeated at the primary. All political parties, which are deﬁned as those that have cast at least 5 per cent of the total vote at speciﬁed preceding elections, are required to nominate their candidates for representative by direct primary elections. The primary is conducted by the state at public expense. The primary, as is the general election, is subject to numerous statutory regulations as to the time, place and manner of conducting the election, including provisions to insure that the ballots cast at the primary are correctly counted, and the results of the count correctly recorded and certiﬁed to the Secretary of State, whose duty it is to place the names of the successful candidates of each party on the ofﬁcial ballot. The Secretary of State is prohibited from placing on the ofﬁcial ballot the name of any person as a candidate for any political party not nominated in accordance with the provisions of the Act. One whose name does not appear on the primary ballot, if otherwise eligible to become a candidate at the general election, may do so in either of two ways, by ﬁling nomination papers with the requisite number of signatures or by having his name ‘written in’ on the ballot on the ﬁnal election. Louisiana Act No. 224 provides ‘No one who participates in the primary election of any political party shall have the right to participate in any primary election of any other political party, with a view of nominating opposing candidates, nor shall he be permitted to sign any nomination papers for any opposing candidate or candidates; nor shall he be permitted to be himself a candidate in opposition to any one nominated at or through a primary election in which he took part’. . . . The right to vote for a representative in Congress at the general election is, as a matter of law, thus restricted to the successful party candidate at the primary, to those not candidates at the primary who ﬁle nomination papers, and those whose names may be lawfully written into the ballot by the electors. Even if . . . voters may lawfully write into their ballots, cast at the general election, the name of a candidate rejected at the primary and have their ballots counted, the practical operation of

Chapter 3 • 1940 to 1969

the primary law in otherwise excluding from the ballot on the general election the names of candidates rejected at the primary is such as to impose serious restrictions upon the choice of candidates by the voters save by voting at the primary election. In fact, as alleged in the indictment, the practical operation of the primary in Louisiana, is and has been since the primary election was established in 1900 to secure the election of the Democratic primary nominee for the Second Congressional District of Louisiana. Interference with the right to vote in the Congressional primary . . . is thus as a matter of law and in fact an interference with the effective choice of the voters at the only stage of the election procedure when their choice is of signiﬁcance, since it is at the only stage when such interference could have any practical effect on the ultimate result, the choice of the Congressman to represent the district. The primary in Louisiana is an integral part of the procedure for the popular choice of Congressman. The right of qualiﬁed voters to vote at the Congressional primary in Louisiana and to have their ballots counted is thus the right to participate in that choice. We come then to the question whether that right is one secured by the Constitution. Section 2 of Article I commands that Congressmen shall be chosen by the people of the several states by electors, the qualiﬁcations of which it prescribes. The right of the people to choose, whatever its appropriate constitutional limitations, where in other respects it is deﬁned, and the mode of its exercise is prescribed by state action in conformity to the Constitution, is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right. Ex parte Yarbrough (The Ku-Klux Cases), 110 U.S. 651; United States v. Mosley, 238 U.S. 383. . . . While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states . . . this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by 2 of Art. I, to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under 4 and its more general power under Article I, 8, clause 18 of the Constitution ‘To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers’. . . . Obviously included within the right to choose, secured by the Constitution, is the right of qualiﬁed voters within a state to cast their ballots and have them counted at Congressional elections. This Court has consistently held that this is a right secured by the Constitution. . . . And since the constitutional command is without restriction or limitation, the right unlike those guaranteed by the Fourteenth and Fifteenth Amendments, is secured against the action of individuals as well as of states. . . . But we are now concerned with the question whether the right to choose at a primary election, a candidate for election as representative, is embraced in the right to choose representatives secured by Article I, 2. We may assume that the framers of the Constitution in adopting that section, did not have speciﬁcally in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication which are concededly within it. But in determining whether a provision of the Constitution applies to a new subject matter,

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Longtime United Mine Workers of America leader John L. Lewis endorses Adlai Stevenson for president at an October 1952 UMWA convention. (AP Photo / Harvey Eugene Smith.)

it is of little signiﬁcance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indeﬁnite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. . . . REVERSED.

ANALYSIS In Newberry v. United States (1921) a sharply divided Supreme Court ruled that Congress did not possess the authority to regulate primary elections. Therefore, many observers were surprised when the Court accepted the issue again in United States v. Classic (1941). In this case, a number of Louisiana elections commissioners were

Chapter 3 • 1940 to 1969

indicted by the newly created Civil Rights Division of the U.S. Justice Department for conspiring to “injure” and “oppress” Louisiana primary voters by allegedly altering 97 ballots to make it appear that the voters had voted for a third candidate and by falsely certifying the election results. The election commissioners challenged their indictments on the grounds that the federal criminal code did not extend to voting activities in a congressional district’s primary election. In a 5–3 decision, the Court ruled that Congress had the authority to regulate party primary elections, if the primary is an “integral part” of a state’s electoral process or if the primary is the most meaningful election in the state. Writing for the majority, Justice Harlan Stone noted that in Louisiana the established political parties are required to nominate candidates in primaries, the state assumes the costs, and the elections are subjected to substantial state regulation, going so far as to forbid the secretary of state from placing a candidate from a political party on the general election ballot if he or she was not nominated in a primary. Five justices in the Newberry case concluded that article I, section 4, of the Constitution did not provide Congress the authority to regulate primary elections, but only four of those justices agreed that the 17th Amendment did not provide independent authority for party primary regulation. The remaining justices believed that article I or the 17th Amendment, or both, provided the legal basis for federal legislation governing primary elections for congressional seats. In short, the Newberry Court was deeply split on the regulation of primaries. In Classic, Justice Stone leaped on the Newberry Court’s divisions as one reason for reanalyzing the question. Second, the Court’s majority couched its analysis in the context of the right to vote, a right recognized by the Court in a number of previous cases. Justice Stone maintained that an individual’s right to vote is protected against state infringement and, in some cases, private infringements. Therefore, because citizens have the right to vote for congressional candidates in a general election, the right also extends to primary elections, or nominating conventions, when and if states make the primary an integral part of the electoral process—as was the case in Louisiana—or if the primary is the only meaningful election in the state. In states dominated by one party, as was the South in the late 19th and much of the 20th centuries, real competition occurred only in primaries, not general elections.

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DID YOU KNOW? The War Labor Disputes (Smith-Connally) Act of 1943, PL 78-89 57 Stat. 144 The United States couldn’t afford to have its industrial capacity diminished by domestic labor strife while engaged in World War II. Two United Mine Workers strikes in 1943 prompted Congress to pass the War Labor Disputes (Smith-Connally) Act, which created procedures to settle disputes between management and labor and empowered the president to use troops to operate businesses critical to the war effort closed by work stoppages. However, unions’ critics inserted a provision—section 9— into the law that weakened labor’s political strength. The Conservative Coalition—Republicans and conservative Democrats—had complained about organized labor’s support for FDR and his congressional allies in the 1936 election, and a 1937 Senate committee report conﬁrmed their suspicions. But the 1943 coal mine strikes gave the coalition its chance to act. Senator Thomas Connally (D, TX) introduced a bill designed to prevent strikes against militarily important businesses and industries, and the Senate passed it (Mutch 1988, 153; Overacker 1937, 490). In the House, Connally’s bill was amended by Representative Howard Smith (D, VA), a labor foe, to include section 9 (Mutch 1988, 154). Section 9’s proponents claimed that unions, like corporations, should be banned from contributing to federal candidates because both entities collected money from people who did not necessarily support its use for political purposes, that is, a corporation took funds from stockholders to invest in the business while a union accepted members’ dues to advance the workers’ causes. Section 9’s supporters also argued that there were no signiﬁcant differences between unions and corporations in the political realm, and since the Tillman Act (see document) had banned direct corporate donations to federal candidates in 1907, unions should be required to operate under the same rules. Despite passage by Congress, Roosevelt vetoed the bill, but it was overridden by a House vote of 244–108 and a Senate vote of 56–25 on June 25, 1943. The act deﬁnitively prohibited direct corporate and labor union contributions to all candidates for elected federal ofﬁces by amending the Federal Corrupt Practices Act of 1925 (see document). The act expired six months after World War II ended, but by then Congress had already passed the Labor Management Relations (Taft-Hartley) Act in 1947 (see document), which included a permanent ban on union contributions to federal candidates.

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United States v. Classic (1941) is a leading Supreme Court decision involving the regulation of elections. In DID YOU KNOW? one decision, the Court provided legal support for regulating federal and state party primaries. Until Classic, Further Reading political parties were viewed as private entities, entitled to nominate candidates in primaries, with no federal and Hohenstein, Kurt. 2007. Coining Corruption: The Makminimal state regulations. Using Classic’s logic, howing of the American Campaign Finance System. DeKalb: Northern Illinois University Press. ever, the Court held in Smith v. Allwright, 321 U.S. 649 LaRaja, Raymond J. 2008. Small Change: Money, Po(1944) and Terry v. Adams, 345 U.S. 461 1953) that belitical Parties, and Campaign Finance Reform. Ann cause primaries produced candidates that later appeared Arbor: University of Michigan Press Mutch, Robert E. 1988. Campaigns, Congress, and on a state’s general election ballot, states possessed the Courts: The Making of Federal Campaign Finance authority to prohibit all-white primaries. While Classic, Law. New York: Praeger. Smith, and Terry appeared to support the notion that Overacker, Louise. 1937. “Campaign Funds in the Presipolitical parties were quasi-public institutions bound by dential Election of 1936.” American Political Science Review 31:473–98. the 14th Amendment, other constitutional restrictions, and appropriate state regulations, the Supreme Court has been reticent in more recent years to uphold state laws and referenda that have altered party primary rules to produce more moderate candidates (see Democratic Party of California v. Jones, 530 U.S. 567 [2000] document).

• Document: The Labor-Management Relations (Taft-Hartley) Act of 1947 • Date: Passed by Congress over President Harry Truman’s veto on June 23, 1947 • Signiﬁcance: Taft-Hartley placed restrictions on labor union organizing and work stoppage practices and permanently banned corporations and labor unions from drawing on their treasuries to contribute directly to candidates for all federal ofﬁces. The prohibition ﬁrst appeared in the War Labor Disputes (Smith-Connally) Act in 1943.

DOCUMENT The Labor-Management Relations Act of 1947, PL 80-101 61 Stat. 136 An Act to amend the National Labor Relations Act, to provide additional facilities for the mediation of labor disputes affecting commerce, to equalize legal responsibilities of labor organizations and employers, and for other purposes. . . . (b) Industrial strife which interferes with the normal ﬂow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimized if employers, employees, and labor organizations each recognize under law one another’s legitimate rights in their relations with each other, and above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest. . . . SEC. 304. Section 313 of the Federal Corrupt Practices Act, 1925 (U.S.C., 1940 edition, title 2, sec. 251; Supp. V, title 50, App., sect. 1509), is amended to read as follows: “SEC. 313. It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection 107

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with any election to any political ofﬁce, or in connection with any primary election or political convention or caucus held to select candidates for any political ofﬁce, or for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing ofﬁces, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section. Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be ﬁned not more than $5,000; and every ofﬁcer or director of any corporation, or ofﬁcer of any labor organization, who consents to any contribution or expenditure by the corporation or labor organization, as the case may be, in violation of this section shall be ﬁned not more than $1,000 or imprisoned for not more than one year, or both. For the purposes of this section ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions or work. . . .”

ANALYSIS When Congress passed the War Labor Disputes (Smith-Connally) Act in 1943, organized labor faced a legislature hostile to its interests for the ﬁrst time in 10 years. President Franklin D. Roosevelt campaigned in 1932 on a platform that included workers’ rights, and he helped secure protections for those seeking to form collective bargaining units by pushing the National Labor Relations Act (Wagner Act) through Congress in 1935. As the ranks of unionized workers grew, so too did the unions’ political power. America’s entry into World War II dramatically expanded employment opportunities on the home front. Workers in more industries achieved collective bargaining agreements, and unionized labor sought higher wages. Strikes and other work stoppages became effective union tools to extract concessions from employers, but when strikes hit industries critical to the war effort, as in the 1943 coal miners’ strikes, the nation’s military capacity was jeopardized. Smith-Connally was Congress’s attempt to blunt union power in order to safeguard national security by making strikes against militarily sensitive industries illegal and permitting a federal takeover of businesses or industries shuttered by walkouts. Embedded within the law, however, was section 9, which prohibited corporations and labor unions from contributing money from their treasuries to candidates for all federal ofﬁces. It was added by Representative Howard Smith (D, VA), a staunch union opponent and member of the Conservative Coalition (a conservative Democrat and Republican voting bloc) even though it was unrelated to the act’s main purpose. Coalition members had grumbled since 1936 about union campaign activities in support of FDR and other liberal Democrats and wanted to end them. In the summer following Smith-Connally’s passage, the Congress of Industrial Organizations (CIO) formed the Council on Political Education (COPE), the ﬁrst

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Carl Loefﬂer (center), secretary of the Senate, certiﬁes Senate passage of the Taft-Hartley Act over Presindent Harry Truman’s veto, June 23, 1947. Loefﬂer is ﬂanked by bill sponsors Rep. Fred Hartley (R, NJ) and Sen. Robert Taft (R, OH). (AP Photo.)

political action committee (PAC), separating its political fund-raising operations from its labor organizing functions. CIO attorneys interpreted Smith-Connally as not restricting unions from spending their money independently of parties and candidates. Money was raised by union shop stewards, who approached members individually for donations to COPE, which then spent the funds on advertising, voter mobilization, and the like, without coordinating its work with candidates or parties. During the 1944 presidential campaign, COPE targeted antiunion lawmakers, among them Senator Robert A. Taft (R, OH), and mailed literature supporting Democratic candidates to their constituents. President Roosevelt was reelected and Congress returned with another Democratic majority (Mutch 1988, 154–55). The 1948 election cycle, however, resulted in a different arrangement: Democrat Harry Truman earned the presidency but Republicans gained control of Congress, presenting the GOP with an opportunity to roll back some of the protections extended to organized labor under the Wagner Act while also restraining union

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political activity, especially the ﬂow of union money into campaigns. Senator Taft and Representative DID YOU KNOW? Fred A. Hartley (R, NJ) introduced the Labor Management Relations bill into their respective chamLabor Unions, Corporations, and Campaign bers, and immediately encountered opposition from Financing in the 1940s liberal Democrats. The bill’s proponents argued that unions and corporations were comparable, and since Section 313 of the Corrupt Practices Act of 1925, as corporate contributions had been outlawed in the amended by section 304 of the Labor Management RelaTillman Act of 1907 (see document), union money tions Act of 1947 (Taft-Hartley), prohibited corporations should be banned as well. Because both were organiand labor unions from making contributions or expenditures in connection with federal elections. In United zations that accepted money from their members— States v. Congress of Industrial Organizations, 335 U.S. shareholders or workers—and used their funds in the 106 (1948) a labor union—the Congress of Industrial Orpolitical arena to move public opinion to support their ganizations (CIO)—and its president, Philip Murray, were favored candidates, rules prohibiting direct contribuindicted for violating section 313 when the union pubtions should be the same. They also used an argument lished and distributed an issue of its magazine, CIO News against unions that had been applied to corporations that explicitly urged its membership to vote for a congressional candidate in a Maryland special election. The in 1907: that money gathered by corporations for one labor union challenged the indictment, alleging that secpurpose—to increase their proﬁts—should not be used tion 313 violated First Amendment rights of speech and for political purposes without asking their stockholders. assembly, and it petitioned for redress of grievances. Unions, they contended, should be held to the same A unanimous Court concluded that Congress did standard because they were engaged in the same pracnot intend section 313 of the Corrupt Practices Act as tice when they accepted dues and then spent the money amended to apply to the union’s publication, because Congress was concerned with the “undue inﬂuence” to forward something other than workers’ beneﬁts withof corporate and labor aggregate funds on the political out asking them (Mutch 1988, 156). process, not forbidding a corporation or labor union Opponents claimed that unions were unlike corpo“from expressing views on candidates or political prorations and should be compared instead to business or posals in the regular course of its publication.” The maprofessional associations, as these were organized for a jority opinion declined to address the broader question common good. Corporations beneﬁted only their stockof whether section 313 was constitutional. While every justice agreed with the majority’s concluholders (Mutch 1988, 157). sion, four justices disagreed with the majority’s hesitation The bill cleared the House ﬁrst and then the Senate, to address the broader constitutional issue. Joined by three but when it reached Truman’s desk, he vetoed it, writother justices, Justice Rutledge ﬁled a concurring opinion ing in his veto message that it “would prohibit many that explained why section 313 should not be entitled legitimate (political) activities” of unions and corporato a presumption of constitutionality. These justices betions. Congress easily overrode the veto, and the bill lieved that the First Amendment did not allow such “basic rights” to be denied, especially in the complete absence became law on June 23, 1947. of congressional ﬁndings demonstrating how these orgaSection 313 speciﬁcally forbade national banks, cornizational funds had distorted the electoral process. porations, and labor unions from contributing to or Until January 2010 in the Supreme Court’s decision expending money from their treasuries for candidates in Citizens United v. Federal Election Commission, 130 S. seeking federal ofﬁce. The statute also covered spending Ct. 876 (see document), corporations and labor unions money on behalf of candidates, and it extended Smithwere forbidden from using general treasury money to fund “electioneering communications” within statutorily Connally to include primaries, conventions, and causpeciﬁed times before primary and general elections. cuses as well as general elections. Fines were applied Citizens United held that the First Amendment permits to corporations, union organizations, and the union orcorporations and labor unions to spend money from ganizations’ leaders found guilty of violating the law. their general treasury funds on election campaigns. An immediate consequence of Taft-Hartley’s passage was that the American Federation of Labor (AFL) formed its own PAC, Labor’s League for Political Education, because the loophole discovered by the CIO’s lawyers (discussed above) had not closed. Litigation followed thereafter, when CIO leaders ﬂagrantly violated the

Chapter 3 • 1940 to 1969

law. The case, United States v. Congress of Industrial Organizations (1948), ultimately was heard by the Supreme Court, which upheld the constitutionality of the statute (Mutch 1988, 157–58). Taft-Hartley temporarily appeared to stem the ﬂow of contributions from corporations and unions, but in reality, campaign money from these entities found its way into candidates’ campaign coffers, primarily through PACs. Indeed, though relatively few in 1950, PACs increased to a few hundred in 1970, to over 1,000 after the amendments to the Federal Election Campaign Act of 1974 (see document), and to over 4,500 by 2008. (See Chart 4.1 and Table 4.2.)

FURTHER READING Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. LaRaja, Raymond J. 2008. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press. Mutch, Robert E. 1988. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law. New York: Praeger. Overacker, Louise. 1937. “Campaign Funds in the Presidential Election of 1936.” American Political Science Review 31:473–98.

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Document: The Fairness Doctrine Date: Federal Communications Commission report of 1949 Signiﬁcance: The Fairness Doctrine evolved from the FCC’s Mayﬂower Doctrine of 1941. It softened the commission’s apparent ban on editorializing and substituted a requirement that broadcasters devote airtime in a fair and balanced manner to public issues. The doctrine remained in force until 1987.

DOCUMENT In the Matter of Editorializing by Broadcast Licensees Docket No. 8516 Report of the Federal Communications Commission 1. This report is issued by the Commission in connection with its hearings on the above entitled matter held at Washington, D.C., on March 1, 2, 3, 4, and 5, and April 19, 20, and 21, 1948. The hearing had been ordered on the Commission’s own motion on September 5, 1947, because of our belief that further clariﬁcation of the Commissioner’s position with respect to the obligations of broadcast licensees in the ﬁeld of broadcasts of news, commentary and opinion was advisable. It was believed that in view of the apparent confusion concerning certain of the Commission’s previous statements on these vital matters by broadcast licensees and members of the general public, as well as the professed disagreement on the part of some of these persons with earlier Commission pronouncements, a reexamination and restatement of its views by the Commission would be desirable. . . . 3. In approaching the issues upon which this proceeding has been held, we believe that the paramount and controlling consideration is the relationship between the American system of broadcasting carried on through a 112

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large number of private licensees upon whom devolves the responsibility for the selection and presentation of program material, and the congressional mandate that this licensee responsibility is to be exercised in the interests of, and as a trustee for the public at large which retains ultimate control over the channels of radio and television communications. . . . 4. It is apparent that our system of broadcasting, under which private persons and organizations are licensed to provide broadcasting service to the various communities and regions, imposes responsibility in the selection and presentation of radio program material upon such licensees. Congress has recognized that the requests for radio time may far exceed the amount of time reasonably available for distribution by broadcasters. It provided, therefore, in Section 3 (h) of the Communications Act that a person engaged in radio broadcasting shall not be deemed a common carrier. It is the licensee, therefore, who must determine what percentage of the limited broadcast day should appropriately be devoted to news and discussion or consideration of public issues, rather than to the other legitimate services of radio broadcasting, and who must select or be responsible for the selection of the particular news items to be reported. . . . And both the Commission and the courts have stressed that this responsibility devolves upon the individual licensees, and can neither be delegated by the licensee to any network or other person or group, or be unduly fettered by contractual arrangements restricting the licensee in his free exercise of his independent judgments. . . . 5. But the inevitability that there must be some choosing between various claimants for access to a licensee’s microphone, does not mean that the licensee is free to utilize his facilities as he sees ﬁt or in his own particular interests as contrasted with the interests of the general public. The Communications Act of 1934, as amended, makes clear that licenses are to be issued only where the public interest, convenience or necessity would be served thereby. And we think it is equally clear that one of the basic elements of any such operation is the maintenance of radio and television as a medium of freedom of speech and freedom of expression for the people of the Nation as a whole. . . . The legislative history of the Communications Act and its predecessor, the Radio Act of 1927 shows, on the contrary, that Congress intended that radio stations should not be used for the private interest, whims, or caprices of the particular persons who have been granted licenses, but in manner which will serve the community generally and the various groups which make up the community. And the courts have consistently upheld Commission action giving recognition to and fulﬁlling that intent of Congress. . . . 6. It is axiomatic that one of the most vital questions of mass communication in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital public issues of the day. . . . It is this right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter, which is the foundation stone of the American system of broadcasting. . . .

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8. It has been suggested in the course of the hearings that licensees have an afﬁrmative obligation to insure fair presentation of all sides of any controversial issue before any time may be allocated to the discussion or consideration of the matter. On the other hand, arguments have been advanced in support of the proposition that the licensee’s sole obligation to the public is to refrain from suppressing or excluding any responsible point of view from access to the radio. We are of the opinion, however, that any rigid requirement that licensees adhere to either of these extreme prescriptions for proper station programming techniques would seriously limit the ability of licensees to serve the public interest. Forums and roundtable discussions, while often excellent techniques of presenting a fair cross section of differing viewpoints on a given issue, are not the only appropriate devices for radio discussion, and in some circumstances may not be particularly appropriate or advantageous. . . . 9. We do not believe, however, that the licensee’s obligations to serve the public interest can be met merely through the adoption of a general policy of not refusing to broadcast opposing views where a demand is made of the station for broadcast time. If, as we believe to be the case, the public interest is best served in a democracy through the ability of the people to hear expositions of the various positions taken by responsible groups and individuals on particular topics and to choose between them, it is evident that broadcast licensees have an afﬁrmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to make available on demand opportunities for the expression of opposing views. It is clear that any approximation of fairness in the presentation of any controversy will be difﬁculty [sic] if not impossible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints. . . . 10. . . . The licensee will in each instance be called upon to exercise his best judgment and good sense in determining what subjects should be considered, the particular format of the programs to be devoted to each subject, the different shades of opinion to be presented, and the spokesmen for each point of view. . . . 11. It is against this background that we must approach the question of “editorialization”—the use of radio facilities by the licensees thereof for the expression of the opinions and ideas of the licensee on the various controversial and signiﬁcant issues of interest to the members of the general public afforded radio (or television) service by the particular station. . . . It should also be clearly indicated that the question of the relationship of broadcast editorialization, as deﬁned above, to operation in the public interest, is not identical with the broader problem of assuring “fairness” in the presentation of news, comment or opinion, but is rather one speciﬁc facet of this larger problem. . . . 13. The narrower question of whether any overt editorialization or advocacy by broadcast licensees, identiﬁed as such is consonant with the operation of their stations in the public interest, resolves itself, primarily into the issue of whether such identiﬁcation of comment or opinion broadcast

Chapter 3 • 1940 to 1969

over a radio or television station with the licensee, as such, would inevitably or even probably result in such overemphasis on the side of any particular controversy which the licensee chooses to espouse as to make impossible any reasonably balanced presentation of all sides of such issues or to render ineffective the available safeguards of that overall fairness which is the essential element of operation in the public interest. We do not believe that any such consequence is either inevitable or probable, and we have therefore come to the conclusion that overt licensee editorialization, within reasonable limits and subject to the general requirements of fairness detailed above, is not contrary to the public interest. 14. The Commission has given careful consideration to contentions of those witnesses at the hearing who stated their belief that any overt editorialization or advocacy by broadcast licensee is per se contrary to the public interest. . . . We believe, however, that these fears are largely misdirected, and that they stem from a confusion of the question of overt advocacy in the name of the licensee, with the broader issue of insuring that the station’s broadcasts devoted to the consideration of public issues will provide the listening public with a fair and balanced presentation of differing viewpoints on such issues, without regard to the particular views which may be held or expressed by the licensee. . . . We do not believe that programs in which the licensee’s personal opinions are expressed are intrinsically more or less subject to abuse than any other program devoted to public issues. . . . In any competition for public acceptance of ideas, the skills and resources of the proponents, and opponents will always have some measure of effect in producing the results sought. But it would not be suggested that they should be denied expression of their opinions over the air by reason of their particular assets. What is against the public interest is for the licensee “to stack the cards” by a deliberate selection of spokesmen for opposing points of view to favor one viewpoint at the expense of the other, whether or not the views of those spokesmen are identiﬁed as the views of the licensee or of others. Assurance of fairness must in the ﬁnal analysis be achieved, not by the exclusion of particular views because of the source of the views, or the forcefulness with which the view is expressed, but by making the microphone available, for the presentation of contrary views without deliberate restrictions designed to impede equally forceful presentation. . . . 16. . . . In the absence of a duty to present all sides of controversial issues, overt editorialization by station licensees could conceivably result in serious abuse. But where, as we believe to be the case under the Communications Act, such a responsibility for a fair and balanced presentation of controversial public issues exists, we cannot see how the open espousal of one point of view by the licensee should necessarily prevent him from affording a fair opportunity for the presentation of contrary positions or make more difﬁcult the enforcement of the statutory standard of fairness upon any licensee. . . . 18. . . . A licensee may not utilize the portion of its broadcast service which conforms to the statutory requirements as a cover or shield for other programming which fails to meet the minimum standards of operation in the

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public interest. But it is clear that the standard of public interest is not so rigid that an honest mistake or error in judgment on the part of a licensee will be or should be condemned where his overall record demonstrates a reasonable effort to provide a balanced presentation of comment and opinion on such issues. . . . 19. There remains for consideration the allegation made by a few of the witnesses in the hearing that any action by the Commission in this ﬁeld enforcing a basic standard of fairness upon broadcast licensees necessarily constitutes an “abridgement of the right of free speech” in violation of the ﬁrst amendment of the United States Constitution. We can see no sound basis for any such conclusion. The freedom of speech protected against governmental abridgement by the ﬁrst amendment does not extend any privilege to government licensees of means of public communications to exclude the expression of opinions and ideas with which they are in disagreement. We believe, on the contrary, that a requirement that broadcast licensees utilize their franchises in a manner in which the listening public may be assured of hearing varying opinions on the paramount issues facing the American people is within both the spirit and letter of the ﬁrst amendment. . . . 21. To recapitulate, the Commission believes that under the American system of broadcasting the individual licensees of radio stations have the responsibility for determining the speciﬁc program material to be broadcast over their stations. This choice, however, must be exercised in a manner consistent with the basic policy of the Congress that radio be maintained as a medium of free speech for the general public as a whole rather than as an outlet for the purely personal or private interests of the licensee. This requires that licensees devote a reasonable percentage of their broadcasting time to the discussion of public issues of interest in the community served by their stations and that such programs be designed so that the public has a reasonable opportunity to hear different opposing positions on the public issues of interest and importance in the community. The particular format best suited for the presentation of such programs in a manner consistent with the public interest must be determined by the licensee in the light of the facts of each individual situation. Such presentation may include the identiﬁed expression of the licensee’s personal viewpoint as part of the more general presentation of views or comments on the various issues, but the opportunity of licensees to present such views as they may have on matters of controversy may not be utilized to achieve a partisan or one-sided presentation of issues. Licensee editorialization is but one aspect of freedom of expression by means of radio. Only insofar as it is exercised in conformity with the paramount right of the public to hear a reasonably balanced presentation of all responsible viewpoints on particular issues can such editorialization be considered to be consistent with the licensee’s duty to operate in the public interest. For the licensee is a trustee impressed with the duty of preserving for the public generally radio as a medium of free expression and fair presentation.

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ANALYSIS In 1941 the FCC decided against granting a license to the Mayﬂower Broadcasting Corporation. Contained within its ruling was a policy that became the Mayﬂower Doctrine, prohibiting stations from airing editorials reﬂecting their owners’ personal opinions. Because of the doctrine’s ambiguous language, broadcasters were uncertain whether all editorializing was banned or whether they could air editorials as long as they treated the full range of positions on an issue. Pressure mounted on the FCC to clarify its editorial broadcast policy, and it held hearings in 1948 that resulted in the FCC report of 1949. The FCC considered the authority granted it by Congress as a sacred trust to manage a limited, national resource for the public good. Because the FCC controlled the scarce frequencies, those permitted to operate radio and television stations could not do so in complete freedom. In particular, the licensee’s free speech right was constrained so that the public’s right to a fair and open exchange of ideas was preserved. With the Fairness Doctrine, the FCC attempted to strike a balance between owners’ and public’s rights. Rather than impose strict standards on what issues a station could comment on, the manner or format of the commentary, and how much time the station should devote to news and commentary, the FCC gave broadcasters discretionary authority in these matters, asking only that owners “devote a reasonable percentage of . . . time to the discussion of public issues of interest in the community served by their stations.” The FCC was not concerned whether a station air an editorial that reﬂected the position of the licensee, because the FCC believed that station owners should be free to express their opinions. The FCC, however, was concerned that the licensee also air editorials that presented alternative views. The FCC believed that the public’s interest was best served when an issue was debated fully and fairly and the public heard “a reasonably balanced presentation of all responsible viewpoints.” The Fairness Doctrine required that licensees select controversial public issues to air and treat them in a fair and balanced manner. Essentially, an editorial aired on a public question had to be followed by editorials from people or organizations with differing perspectives. The station was expected to exercise good judgment in determining which alternative views were presented and who delivered the editorials. Listeners disagreeing with the licensee’s decisions could bring their complaints to the FCC, which then investigated. The FCC revisited the Fairness Doctrine over the years and issued rules dealing speciﬁcally with candidate endorsement editorials and personal attacks. In the former, if the licensee aired an editorial endorsing a candidate, it was required to provide opportunities for all other qualiﬁed candidates for the same ofﬁce to respond on air. In the latter, the FCC mandated that if an editorial criticized someone personally, the station had to notify the person within one week, provide a copy of the editorial, and offer the person the opportunity to respond on air at the station’s expense. Candidates and parties were well aware of the importance of the Fairness Doctrine for campaigns, with most Democrats supporting it and most Republicans opposed. Democrats worried that station owners were more likely to use their resources to sway public opinion toward Republican candidates, who were more likely to

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favor the broadcasters’ interests as well as the interests of businesses that purchased advertising time. The Fairness Doctrine was upheld by the Supreme Court in Red Lion Broadcasting v. Federal Communicational Commission (1969) (see document). By 1980 as AM and FM radio stations proliferated and television stations became available on VHF, UHF, and cable, President Ronald Reagan appointed Mark Fowler, a known critic of the doctrine, as FCC chairman. In 1985 the FCC reconsidered the policy but did not abandon it. Two years later, Congress passed a bill making the doctrine law, but President Reagan vetoed it. Congress failed to override the veto, and the FCC ceased enforcing the doctrine in 1987.

FURTHER READING Benjamin, Louise M. 1987. “Broadcast Campaign Precedents from the 1924 Presidential Election.” Journal of Broadcasting & Electronic Media (Washington, DC), Fall. Brennan, Timothy A. 1989. “The Fairness Doctrine as Public Policy.” Journal of Broadcasting & Electronic Media (Washington, DC), Fall. Committee on Interstate and Foreign Commerce, House of Representatives. 1968 “Legislative History of the Fairness Doctrine.” 90th Congress, 2nd Session. Washington, DC: U.S. Government Printing Ofﬁce. Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Paglin, Max D., ed. 1999. The Communications Act: A Legislative History of the Major Amendments, 1934–1996. Silver Spring, MD: Pike & Fischer. Rowan, Ford. 1984. Broadcast Fairness: Doctrine, Practice, Prospects: A Reappraisal of the Fairness Doctrine and Equal Time Rule. New York: Longmans. Simmons, Steven J. 1978. The Fairness Doctrine and the Media. Berkeley, Berkeley: University of California Press.

• • •

Document: United States v. United Auto Workers, 352 U.S. 567 (1957) Date: Decided March 11, 1957 Signiﬁcance: In United States v. United Auto Workers (1957), the U.S. Supreme Court upheld a law that prohibited labor unions from contributing money from their general treasuries to federal campaigns. Congress had prohibited corporations from making such contributions since the 1907 Tillman Act. Though the Court ruled in Citizens United v. Federal Election Commission (2010) that both corporations and labor unions could spend general treasury funds on campaign activities independently of candidates, current law still prohibits both entities from contributing money directly from their general funds to federal candidates.

DOCUMENT United States v. United Auto Workers, 352 U.S. 567 (1957) Justice Frankfurter delivered the opinion of the Court The issues tendered in this case are the construction and, ultimately, the constitutionality of 18 U.S.C. 610, an Act of Congress that prohibits corporations and labor organizations from making “a contribution or expenditure in connection with” any election for federal ofﬁce. This is a direct appeal by the Government from a judgment of the District Court for the Eastern District of Michigan dismissing a fourcount indictment that charged appellee, a labor organization, with having made expenditures in violation of that law. Appellee had moved to dismiss the indictment on the grounds (1) that it failed to state an offense under the statute and (2) that the provisions of the statute “on their face and as construed and applied” are 119

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unconstitutional. The district judge held that the indictment did not allege a statutory offense and that he was therefore not required to rule upon the constitutional questions presented. 138 F. Supp. 53. The case came here, under the Criminal Appeals Act of 1907. It is desirable at the outset to quote the statute in its entirety: “It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political ofﬁce, or in connection with any primary election or political convention or caucus held to select candidates for any political ofﬁce, or for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing ofﬁces, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section. “Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be ﬁned not more than $5,000; and every ofﬁcer or director of any corporation, or ofﬁcer of any labor organization, who consents to any contribution or expenditure by the corporation or labor organization, as the case may be, and any person who accepts or receives any contribution, in violation of this section, shall be ﬁned not more than $1,000 or imprisoned not more than one year, or both; and if the violation was willful, shall be ﬁned not more than $10,000 or imprisoned not more than two years, or both. “For the purposes of this section ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exist for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” 18 U.S.C. 610, taken from the Act of June 23, 1947, 61 Stat. 136, 159. Appreciation of the circumstances that begot this statute is necessary for its understanding, and understanding of it is necessary for adjudication of the legal problems before us. Speaking broadly, what is involved here is the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process. This case thus raises issues not less than basic to a democratic society. The concentration of wealth consequent upon the industrial expansion in the post-Civil War era had profound implications for American life. The impact of the abuses resulting from this concentration gradually made itself felt by a rising tide of reform protest in the last decade of the nineteenth century. The Sherman Law was a response to the felt threat to economic freedom created by enormous industrial combines. The income tax law of 1894 reﬂected congressional concern over the growing disparity of income between the many and the few.

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No less lively, although slower to evoke federal action, was popular feeling that aggregated capital unduly inﬂuenced politics, an inﬂuence not stopping short of corruption. The matter is not exaggerated by two leading historians: “The nation was fabulously rich but its wealth was gravitating rapidly into the hands of a small portion of the population, and the power of wealth threatened to undermine the political integrity of the Republic.” 2 Morison and Commager, The Growth of the American Republic (4th ed. 1950), 355. . . . The need for unprecedented economic mobilization propelled by World War II enormously stimulated the power of organized labor and soon aroused consciousness of its power outside its ranks. Wartime strikes gave rise to fears of the new concentration of power represented by the gains of trade unionism. And so the belief grew that, just as the great corporations had made huge political contributions to inﬂuence governmental action or inaction, whether consciously or unconsciously, the powerful unions were pursuing a similar course, and with the same untoward consequences for the democratic process. Thus, in 1943, when Congress passed the Smith-Connally Act to secure defense production against work stoppages, contained therein was a provision extending to labor organizations, for the duration of the war, 313 of the Corrupt Practices Act. 57 Stat. 163, 167. . . . Despite 313’s wartime application to labor organizations Congress was advised of enormous ﬁnancial outlays said to have been made by some unions in connection with the national elections of 1944. The Senate’s Special Committee on Campaign Expenditures investigated the role of the Political Action Committee of the Congress of Industrial Organizations. The Committee found “no clear-cut violation of the Corrupt Practices Act on the part of the Political Action Committee” on the ground that it had made direct contributions only to candidates and political committees involved in state and local elections and federal primaries, to which the Act did not apply, and had limited its participation in federal elections to political “expenditures,” as distinguished from “contributions” to candidates or committees. . . . The 1945 Report of the House Special Committee to Investigate Campaign Expenditures expressed concern over the vast amounts that some labor organizations were devoting to politics. . . . Like the Senate Committee, it advocated extension of 313 to primaries and nominating conventions and noted the existence of a controversy over the scope of “contribution.” . . . . . . Congress again acted to protect the political process from what it deemed to be the corroding effect of money employed in elections by aggregated power. Section 304 of the labor bill introduced into the House by Representative Hartley in 1947 . . . embodied the changes recommended in the reports of the Senate and House Committees on Campaign Expenditures. It sought to amend 313 of the Corrupt Practices Act to proscribe any “expenditure” as well as “any contribution,” to make permanent 313’s application to labor organizations and to extend its coverage to federal primaries and nominating conventions. . . . After considerable debate, the conference version was approved by the Senate, and the bill subsequently became law despite the President’s veto. It is this section

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of the statute that the District Court held did not reach the activities alleged in the indictment. . . . DID YOU KNOW? Thus, for our purposes, the indictment charged appellee with having used union dues to sponsor commercial Amendments of 1959 to the Federal television broadcasts designed to inﬂuence the electorCommunications Act of 1934, 47 U.S.C. ate to select certain candidates for Congress in connecSection 315 tion with the 1954 elections. To deny that such activity, either on the part of a corBy the late 1950s, television was fast overtaking radio’s poration or a labor organization, constituted an “expenonce dominant position as the medium of choice for diture in connection with any [federal] election” is to candidates and government ofﬁcials to communicate deny the long series of congressional efforts calculated with the public, and the FCC struggled to maintain a level playing ﬁeld during elections by rendering decito avoid the deleterious inﬂuences on federal elections sions on challenges by minor candidates. During the resulting from the use of money by those who exercise 1959 Chicago mayoralty race, Lar Daly, an independent control over large aggregations of capital. More parcandidate, demanded equal air time on TV to present ticularly, this Court would have to ignore the history his views because Mayor Richard J. Daley was regularly of he statute from the time it was ﬁrst made applicable in the news as mayor. Citing its equal time rule, the FCC to labor organizations. As indicated by the reports of decided that Lar Daly be given air time equal to that of Mayor Daley, creating an untenable situation for broadthe Congressional Committees that investigated camcasters (Klieman n.d., 1). If every station gave every canpaign expenditures, it was to embrace precisely the didate airtime after every incumbent appeared or was kind of indirect contribution alleged in the indictment heard on air as part of regular news coverage, broadthat Congress amended 313 to proscribe “expenditures.” casters would have been overwhelmed, causing them to It is open to the Government to prove under this indictseverely reduce news coverage. Congress addressed the ment activity by appellee that, except for an irrelevant problem created by the FCC’s interpretation of section 315’s equal opportunity, or time, provision in 1959 by difference in the medium of communication employed, passing amendments to the 1934 Federal Communicais virtually indistinguishable from the Brotherhood of tions Act. It identiﬁed four exceptions to the equal time Railway Trainmen’s purchase of radio time to sponsor rule. If a legitimate candidate appeared on (1) a news procandidates or the Ohio C. I. O.’s general distribution of gram, (2) in a news interview, (3) in a news documentary pamphlets to oppose Senator Taft. Because such conduct in which the candidate was not the main subject, or (4) in was claimed to be merely “an expenditure [by the union] a live news event, then a broadcaster was not obligated of its own funds to state its position to the world,” the Senate and House Committees recommended and Congress enacted, as we have seen, the prohibition of “expenditures” as well as “contributions” to “plug the existing loophole.” . . . Appellee urges that if, as we hold, 18 U.S.C. 610 embraces the activity alleged in the indictment, it offends several rights guaranteed by the Constitution. The Government replies that the actual restraint upon union political activity imposed by the statute is so narrowly limited that Congress did not exceed its powers to protect the political process from undue inﬂuence of large aggregations of capital and to promote individual responsibility for democratic government. Once more we are confronted with the duty of being mindful of the conditions under which we may enter upon the delicate process of constitutional adjudication. . . . Reversed and remanded.

Justice Douglas, with whom Chief Justice Warren and Justice Black joined, dissenting We deal here with a problem that is fundamental to the electoral process and to the operation of our democratic society. It is whether a union can express its views on

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the issues of an election and on the merits of the candidates, unrestrained and unfettered by the Congress. DID YOU KNOW? The principle at stake is not peculiar to unions. It is applicable as well to associations of manufacturers, retail to offer equal opportunities to other candidates. These and wholesale trade groups, consumers’ leagues, farmexceptions provided clariﬁcation for broadcasters but ers’ unions, religious groups and every other association did little to really level the electoral playing ﬁeld. Inrepresenting a segment of American life and taking an cumbent candidates by virtue of their ofﬁce are generactive part in our political campaigns and discussions. It ally far more newsworthy than challengers. As a result, is as important an issue as has come before the Court, for incumbents receive more “free media” than challengit reaches the very vitals of our system of government. ers, and challengers cannot invoke the equal time rule. Section 315(b) established criteria for advertising rates Under our Constitution it is We The People who are for candidates based on comparable use, that is, the cost sovereign. The people have the ﬁnal say. The legislators of ads sold to candidates had to be based on the lowest are their spokesmen. The people determine through their rate the station assessed for the same class of ad, for the votes the destiny of the nation. It is therefore important— same length of time, and at the same time of day. The vitally important—that all channels of communication rule applied to ads sold within 45 days of a primary elecbe open to them during every election, that no point of tion and 60 days of a general election. Congress sought to prevent owners from the price gouging of candidates view be restrained or barred, and that the people have acduring campaigns or from discriminating in the sale of cess to the views of every group in the community. ads by offering lower rates to favored candidates. ConIn United States v. C. I. O. (1948), Mr. Justice Rutgress updated the comparable use rule in 1971, when ledge spoke of the importance of the First Amendit required that broadcasters give candidates the same ment rights—freedom of expression and freedom of rates offered to their preferred clients. assembly—to the integrity of our elections. “The most Further Reading complete exercise of those rights,” he said, “is essenHohenstein, Kurt. 2007. Coining Corruption: The Maktial to the full, fair and untrammeled operation of the ing of the American Campaign Finance System. electoral process. To the extent they are curtailed the DeKalb: Northern Illinois University Press. electorate is deprived of information, knowledge and Klieman, Howard. n.d. “Equal Time Rule: U.S. Broadcasting Regulatory Rule.” http://www.museum.tv/ opinion vital to its function.” eotvsection.php?entrycode=equaltimeru. What the Court does today greatly impairs those Paglin, Max D., ed. 1999. The Communications Act: A rights. It sustains an indictment charging no more than Legislative History of the Major Amendments, 1934– the use of union funds for broadcasting television pro1996. Silver Spring, MD: Pike & Fischer. grams that urge and endorse the selection of certain candidates for the Congress of the United States. The opinion of the Court places that advocacy in the setting of corrupt practices. The opinion generates an environment of evil-doing and points to the oppressions and misdeeds that have haunted elections in this country. Making a speech endorsing a candidate for ofﬁce does not, however, deserve to be identiﬁed with antisocial conduct. Until today political speech has never been considered a crime. The making of a political speech up to now has always been one of the preferred rights protected by the First Amendment. It usually costs money to communicate an idea to a large audience. But no one would seriously contend that the expenditure of money to print a newspaper deprives the publisher of freedom of the press. Nor can the fact that it costs money to make a speech—whether it be hiring a hall or purchasing time on the air—make the speech any the less an exercise of First Amendment rights. Yet this statute, as construed and applied in this indictment, makes criminal any “expenditure” by a union for the purpose of expressing its views on the issues of an election and the candidates. It would make no difference under this construction of the Act whether the union spokesman made his address from the platform of a hall, used a sound truck in the streets, or bought time on radio

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DID YOU KNOW? The Presidential Election Campaign Fund Act of 1966 This short-lived act, signed by President Lyndon Johnson on November 13, 1966, created the ﬁrst public funding system for presidential candidates. The same arguments that had been employed by both sides as it was debated in Congress were heard later, and elements of the law found their way into the 1971 Revenue Act and the 1971 Federal Election Campaign Act. Calls for publicly ﬁnancing federal elections had been heard since President Theodore Roosevelt’s message to Congress in 1907 (see Tillman Act document). Those who thought that money was the root cause of all government corruption believed that by replacing private contributions to candidates with public money, elected ofﬁcials would be less likely to favor private interests over those of the public. President John F. Kennedy appointed a bipartisan Commission on Campaign Costs in 1961 to investigate reducing expenses and making campaign fund-raising more transparent. The Commission issued its report on May 29, 1962, and its recommendations included offering tax incentives to individuals contributing to political organizations, matching public dollars with those raised privately by candidates, creating a single committee by each party to accept contributions from all sources, offering of free air time by broadcasters to candidates in return for the FCC’s suspension of the equal time rule, creating a federal election commission to monitor fundraising, and allowing free use of the U.S. Postal Service to register voters. (See Alexander 1976, 134–36; Hohenstein 2007, 195; LaRaja 2008, 67–68; and Mutch 1988, 30–31). An amendment to the Foreign Investors Tax Act offered by Senator Russell Long (D, LA), with LBJ’s support, became the Presidential Election Campaign Fund Act, which was the ﬁrst law to establish a public fund to ﬁnance presidential elections. Taxpayers could designate one dollar from their taxes and direct it to the fund in the Treasury, which distributed the money to presidential candidates of qualifying parties. Under the formula, a party had to receive at least 15 million

or television. In each case the mere “expenditure” of money to make the speech is an indictable offense. The principle applied today would make equally criminal the use by a union of its funds to print pamphlets for general distribution or to distribute political literature at large. . . . The Act, as construed and applied, is a broadside assault on the freedom of political expression guaranteed by the First Amendment. It cannot possibly be saved by any of the facts conjured up by the Court. The answers to the questions reserved are quite irrelevant to the constitutional questions tendered under the First Amendment. I would afﬁrm the judgment dismissing the indictment.

ANALYSIS

In United States v. United Auto Workers (1957) a divided Supreme Court upheld provisions of the 1947 Taft-Hartley Act (see document) that prohibited labor unions from expending or contributing funds during federal primary and general elections or nominating conventions. Long concerned with the deleterious effects of aggregated wealth in federal campaigns, Congress sought to apply the 1907 Tillman Act’s ban on corporate contributions to labor unions. At the turn of the 20th century, Congress proscribed corporations from making contributions to federal campaigns with the Tillman Act (see document) in response to calls from Progressives, who expressed grave misgivings that corporations were unduly inﬂuencing the political process. It was not until 1935, with the passage of the National Labor Relations Act, that labor unions were legally recognized and, therefore, capable of using their wealth to inﬂuence election outcomes. Union membership and inﬂuence increased in the 1940s with the “unprecedented economic mobilization propelled by World War II” (J. Frankfurter, majority opinion), leaving Congress to rectify the statutory inconsistency that forbade only corporations from making campaign contributions but not unions. In 1943 Congress passed the Smith-Connally Act, which allowed the federal government to seize defense industries threatened by labor strikes during World War II. The act also prohibited labor unions from contributing money in federal elections

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for the duration of the war. When the war ended, Congress passed a comprehensive labor bill, known as TaftDID YOU KNOW? Hartley (see document), that placed a permanent ban on labor unions’ expenditures and contributions in fedvotes in the preceding presidential election to qualify eral campaigns. The act became law despite President for any funds, and the exact amount to be given to the Roosevelt’s veto. candidate was calculated by multiplying one dollar by In United States v. United Auto Workers, leaders of the total votes cast for the party in the last presidential the United Auto Workers (UAW) were indicted for election divided by the number of qualifying parties runusing money from its general treasury to pay for televining presidential candidates. The law also established sion broadcasts that endorsed candidates for the U.S. the Presidential Election Campaign Fund Advisory Board, which was authorized to advise the comptrolHouse and Senate during the 1954 primary and general ler general in implementing the law. Before the law elections. The federal court for the Eastern District of could be executed, however, Senators Edward Kennedy Michigan dismissed the indictment, and the U.S. gov(D, MA), Albert Gore Sr. (D, TN), and John Williams ernment appealed directly to the Supreme Court. (R, DE) added an amendment to an investment tax credit Writing for the six-member majority, Justice Felix bill that made the act inoperative until Congress provided Frankfurter dismissed the union’s claim that the act was written guidelines to the Treasury on how the funds were to be distributed, which essentially repealed the law. unconstitutional, citing Congress’s practice since 1907 to rid federal campaigns of large contributions and exFurther Reading penditures made by large organizations. Congress beAlexander, Herbert A. 1976. Financing Politics: Money, lieved that allowing corporations and unions to make Elections and Political Reform. Washington, DC: contributions and expenditures in federal campaigns Congressional Quarterly Press. Byrd, Robert. http://www.senate.gov/legislative/com distorted the electoral and policy processes, encouraged mon/brieﬁng/Byrd_History_Lobbying.htm. corruption, and diminished the people’s inﬂuence. The Cantor, Joseph E. 2005. “The Presidential Election CamCourt ruled that in Congress’s attempt to rid the campaign Fund and Tax Checkoff: Background and paign ﬁnance world of corruption, Congress should be Current Issues.” Washington, DC: Congressional Research Service Report for Congress. December 12. afforded great deference. Garrett, R. Sam. 2007. “Public Financing of CongressioSpeaking for himself, Chief Justice Warren, and Jusnal Elections: Background and Analysis.” Washingtice Black in dissent, Justice Douglas passionately argued ton, DC: Congressional Research Service Report for Congress. July 2. that the First Amendment does not allow Congress to Herbers, John. 1966. “Democrats Plan Gift of $600,000” criminalize the expenditure of funds used for the disNew York Times, March 6, p. 48. semination of information that voters will use to decide Hohenstein, Kurt. 2007. Coining Corruption: The Makcome Election Day. Justice Douglas maintained that the ing of the American Campaign Finance System. DeKalb: Northern Illinois University Press. First Amendment’s goal was to provide for a free marketLaRaja, Raymond J. 2008. Small Change: Money, Poplace of ideas and that, by upholding the Taft-Hartley litical Parties, and Campaign Finance Reform. Ann provisions, the Supreme Court had agreed that some Arbor: University of Michigan Press forms of political speech can be deemed criminal. Mutch, Robert E. 1988. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance The ban on direct corporate and union contributions Law. New York: Praeger. to federal campaigns remains in place today. However, campaign ﬁnance law now allows corporations and unions to establish PACs that can donate up to $5,000 per year to a candidate’s campaign. Under current law, labor union members and their families are permitted to donate money to union PACs, which in turn may donate money to candidates. As a result of Buckley v. Valeo, 424 U.S. 1 (1976) (see document), unions and corporations may use general treasury funds to fund issue ads, or advertisements that do not expressly advocate the election or defeat of any candidate. When unions and corporations aired issue ads during elections that indirectly encouraged voters to support or oppose particular candidates, Congress responded with the Bipartisan Campaign Reform Act (BCRA) (see document),

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Sen. Charles Percy talks with Lar Daly as Daly pickets a National Association of Broadcasters convention in April 1968. (AP Photo/ Paul Cannon.)

that prohibited corporations and unions from using money from their general treasuries to pay for electioneering communication, deﬁned as broadcast, satellite, or cable communication that aired 30 days before a primary election and 60 days before a general election. Labor unions and corporations may still use PAC money for such advertisements. Starting in 2007, in Federal Election Commission v. Wisconsin Right to Life, 127 S. Ct. 2652, the Roberts Court eroded the electioneering communication provision of the BCRA, ruling that the provision applied only to those ads that clearly urged the election or defeat of an identiﬁable candidate. Finally, in Citizens United v. Federal Election Commission (2010), the Court declared the provision unconstitutional. In sum, current federal law prohibits national banks, corporations, and labor unions from spending general treasury funds on political contributions. Unions and their corporate and ﬁnancial counterparts may, however, establish PACs that can contribute statutorily limited amounts of money to candidates and political parties. Furthermore, unless otherwise banned by state law, unions are permitted to use member dues for political purposes.

• Document: Williams v. Rhodes, 393 U.S. 23 (1968) • Date: Decided October 15, 1968 • Signiﬁcance: In this case, the Supreme Court overturned an Ohio election law that required minor parties to obtain petition signatures equal to 15 percent of the total vote cast in the last gubernatorial election. This provision made it virtually impossible for minor parties to appear on the state’s ballot. The Court ruled that the state law violated the Equal Protection Clause of the 14th Amendment, which encouraged establishment of minor parties.

DOCUMENT Williams v. Rhodes, 393 U.S. 23 (1968) Justice Black delivered the opinion of the Court The State of Ohio in a series of election laws has made it virtually impossible for a new political party, even though it has hundreds of thousands of members, or an old party, which has a very small number of members, to be placed on the state ballot to choose electors pledged to particular candidates for the Presidency and Vice Presidency of the United States. Ohio Revised Code, 3517.01, requires a new party to obtain petitions signed by qualiﬁed electors totaling 15% of the number of ballots cast in the last preceding gubernatorial election. The detailed provisions of other Ohio election laws result in the imposition of substantial additional burdens, which were accurately summarized in Judge Kinneary’s dissenting opinion in the court below and were substantially agreed on by the other members of that court. Together these various restrictive provisions make it virtually impossible for any party to qualify on the ballot except the Republican and Democratic Parties. These two Parties face substantially smaller burdens 127

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because they are allowed to retain their positions on the ballot simply by obtaining 10% of the votes in the last gubernatorial election and need not obtain any signature petitions. Moreover, Ohio laws make no provision for ballot position for independent candidates as distinguished from political parties. The State of Ohio claims the power to keep minority parties and independent candidates off the ballot under Art. II, 1, of the Constitution, which provides that: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. . . .” The Ohio American Independent Party, an appellant in No. 543, and the Socialist Labor Party, an appellant in No. 544, both brought suit to challenge the validity of these Ohio laws as applied to them, on the ground that they deny these Parties and the voters who might wish to vote for them the equal protection of the laws, guaranteed against state abridgment by the Equal Protection Clause of the Fourteenth Amendment. . . . The Ohio American Independent Party was formed in January 1968 by Ohio partisans of former Governor George C. Wallace of Alabama. During the following six months a campaign was conducted for obtaining signatures on petitions to give the Party a place on the ballot and over 450,000 signatures were eventually obtained, more than the 433,100 required. The State contends and the Independent Party agrees that due to the interaction of several provisions of the Ohio laws, such petitions were required to be ﬁled by February 7, 1968, and so the Secretary of the State of Ohio informed the Party that it would not be given a place on the ballot. Neither in the pleadings, the afﬁdavits before the District Court, the arguments there, nor in our Court has the State denied that the petitions were signed by enough qualiﬁed electors of Ohio to meet the 15% requirement under Ohio law. Having demonstrated its numerical strength, the Independent Party argued that this and the other burdens, including the early deadline for ﬁling petitions and the requirement of a primary election conforming to detailed and rigorous standards, denied the Party and certain Ohio voters equal protection of the laws. . . .

III. We turn then to the question whether the court below properly held that the Ohio laws before us result in a denial of equal protection of the laws. It is true that this Court has ﬁrmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that “invidious” distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classiﬁcation. In the present situation the state laws place burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualiﬁed voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our

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most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Similarly we have said with reference to the right to vote: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” No extended discussion is required to establish that the Ohio laws before us give the two old, established parties a decided advantage over any new parties struggling for existence and thus place substantially unequal burdens on both the right to vote and the right to associate. The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that “only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.” NAACP v. Button (1963). The State has here failed to show any “compelling interest” which justiﬁes imposing such heavy burdens on the right to vote and to associate. The State asserts that the following interests are served by the restrictions it imposes. It claims that the State may validly promote a two-party system in order to encourage compromise and political stability. The fact is, however, that the Ohio system does not merely favor a “two-party system”; it favors two particular parties— the Republicans and the Democrats—and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past. Ohio makes a variety of other arguments to support its very restrictive election laws. It points out, for example, that if three or more parties are on the ballot, it is possible that no one party would obtain 50% of the vote, and the runner-up might have been preferred to the plurality winner by a majority of the voters. Concededly, the State does have an interest in attempting to see that the election winner be the choice of a majority of its voters. But to grant the State power to keep all political parties off the ballot until they have enough members to win would stiﬂe the growth of all new parties working to increase their strength from year to year. Considering these Ohio laws in their totality, this interest cannot justify the very severe restrictions on voting and associational rights which Ohio has imposed. The State also argues that its requirement of a party structure and an organized primary insures that those who disagree with the major parties and their policies “will be given a choice of leadership as well as issues” since any leader who attempts to capitalize on the disaffection of such a group is forced to submit to a primary in which other, possibly more attractive, leaders can raise the same issues and compete for the

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allegiance of the disaffected group. But while this goal may be desirable, Ohio’s system cannot achieve it. Since the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected “group” will rarely if ever be a cohesive or identiﬁable group until a few months before the election. Thus, Ohio’s burdensome procedures, requiring extensive organization and other election activities by a very early date, operate to prevent such a group from ever getting on the ballot and the Ohio system thus denies the “disaffected” not only a choice of leadership but a choice on the issues as well. Finally Ohio claims that its highly restrictive provisions are justiﬁed because without them a large number of parties might qualify for the ballot, and the voters would then be confronted with a choice so confusing that the popular will could be frustrated. But the experience of many States, including that of Ohio prior to 1948, demonstrates that no more than a handful of parties attempts to qualify for ballot positions even when a very low number of signatures, such as 1% of the electorate, is required. It is true that the existence of multitudinous fragmentary groups might justify some regulatory control but in Ohio at the present time this danger seems to us no more than “theoretically imaginable.” No such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case. Of course, the number of voters in favor of a party, along with other circumstances, is relevant in considering whether state laws violate the Equal Protection Clause. And, as we have said, the State is left with broad powers to regulate voting, which may include laws relating to the qualiﬁcation and functions of electors. But here the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.

ANALYSIS At issue in Williams v. Rhodes (1968) was whether difﬁculties faced by minor parties getting on the Ohio general election ballot rose to the level of an equal protection violation. Under the Ohio elections code, a new political party was required to collect petition signatures equaling 15 percent of all ballots cast in the preceding gubernatorial election. Though the general election was, of course, in November, the law required the new political parties to submit their nominating petitions by February 6, 1968, a full nine months before the general election. The Ohio American Independent Party, along with the Socialist Labor Party, ﬁled suit alleging that this provision of the elections code unconstitutionally discriminated against minor parties. In January 1968, Ohio supporters of former Alabama governor George C. Wallace formed the Ohio American Independent Party. These supporters worked tirelessly for six months to obtain 450,000 signatures, 19,000 more than needed, to gain access to the state’s general election ballot. However, the secretary of state of Ohio informed the supporters that the party would not be placed on the ballot since the signatures were required to be submitted in February of that year. The party alleged a 14th Amendment equal protection clause violation since the state placed such

Chapter 3 • 1940 to 1969

stringent signature requirements only on new parties, not the Republican and Democratic parties. Writing for a six-member majority, Justice Hugo Black outlined the conditions under which the Court would assess whether the Equal Protection Clause was violated. First, the Court would evaluate the “conditions and circumstances behind the law,” then determine the interests forwarded by both sides to the dispute, the state and the minor parties. Under the Court’s analysis, Ohio’s stringent ballot access laws impaired the associational freedoms of minor parties and their supporters, as well as the fundamental right to vote. Justice Black wrote that “the right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes.” In other words, the right to vote is violated when states enact signiﬁcant barriers to minor parties’ access to the ballot. Because the Ohio ballot laws infringed a fundamental right, e.g., the right to vote, the Courts’ doctrine required the state to possess a “compelling interest” for the law to pass constitutional muster. Ohio forwarded three primary interests; ﬁrst, it maintained that it wanted to avoid the possibility of a plurality winner, in which case a majority of voters might prefer the runner-up. Second, the state argued that it “may validly promote a two-party system in order to encourage compromise and political stability.” Finally, Ohio argued that its restrictive election laws prevented voter confusion since less restrictive laws might produce a cacophony of candidates and parties on the ballot, thereby rendering the electorate hopelessly confused. The Court’s majority rejected each claim. While a state does have an interest in ensuring that the election winner be supported by a majority of the voters, Justice Black argued that Ohio’s ballot access laws were too restrictive because they eliminated virtually any chance for minor parties to gain ballot access. As for the state’s claim that it was preserving the two-party system, Justice Black noted that Ohio’s laws were not supporting the two-party system but a particular two-party system, one occupied by the Republican and Democratic parties. Using law to preserve two particular political parties is impermissible. Finally, the Court rejected Ohio’s voter confusion argument, citing the fact that states with less restrictive ballot access laws had not experienced a deluge of minor parties seeking ballot positions. In short, the Court ruled that Ohio did not possess any compelling reason for its restrictive election laws. Williams v. Rhodes (1968) was a clear legal victory for minor parties. For over a century, the Republican and Democratic parties had dominated federal and state elections, with minor parties playing a very minimal role. Structural conditions such as the Electoral College and single-member congressional districts have always impeded the formation and growth of minor parties, and starting in the 20th century, many state legislatures—dominated by Republicans and Democrats—began to implement additional legal barriers to minor-party success through restrictive ballot access laws. However, the Supreme Court’s support for minor parties was short lived, because future courts began to lend support and credibility to state claims that two parties produced political stability and reduced voter confusion.

FURTHER READING “Minority Party Access to the Ballot.” 1971. Duke Law Journal 2 (June 1971): 451–65.

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• Document: Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969) • Date: Decided June 9, 1969 • Signiﬁcance: In Red Lion Broadcasting, Co. v. Federal Communications Commission (1969), the Supreme Court upheld the Fairness Doctrine, a controversial Federal Communications Commission rule that required broadcast licensees to provide contrasting opinions when they covered controversial public interest topics. The Court rejected Red Lion Broadcasting’s First Amendment argument, noting that the scarcity of radio airwaves served as a sufﬁciently important justiﬁcation for the FCC to impose this speech requirement on private broadcasters.

DOCUMENT Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969) Justice White delivered the opinion of the Court The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been deﬁned in a long series of FCC rulings in particular cases, and which is distinct from the statutory requirement of 315 of the Communications Act that equal time be allotted all qualiﬁed candidates for public ofﬁce. Two aspects of the fairness doctrine, relating to personal attacks in the context of controversial 132

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public issues and to political editorializing, were codiﬁed more precisely in the form of FCC regulations in 1967. The two cases before us now, which were decided separately below, challenge the constitutional and statutory bases of the doctrine and component rules. Red Lion involves the application of the fairness doctrine to a particular broadcast, and RTNDA arises as an action to review the FCC’s 1967 promulgation of the personal attack and political editorializing regulations, which were laid down after the Red Lion litigation had begun.

I. A. The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a “Christian Crusade” series. A book by Fred J. Cook entitled “Goldwater—Extremist on the Right” was discussed by Hargis, who said that Cook had been ﬁred by a newspaper for making false charges against city ofﬁcials; that Cook had then worked for a Communist-afﬁliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a “book to smear and destroy Barry Goldwater.” When Cook heard of the broadcast he concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine. . . . On review in the Court of Appeals for the District of Columbia Circuit, the FCC’s position was upheld as constitutional and otherwise proper. . . . The broadcasters challenge the fairness doctrine and its speciﬁc manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters. Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards applied to them. . . . Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others. . . . When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish

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and the other half read. But the reach of radio signals is incomparably greater than the range of the human voice and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology. It was this fact, and the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934, as the Court has noted at length before. It was this reality which at the very least necessitated ﬁrst the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense, and navigation; and then the subdivision of each portion, and assignment of speciﬁc frequencies to individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few. Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same “right” to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum. . . . . . . There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or ﬁduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves. This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized in 326, which forbids FCC interference with “the right of free speech by means of radio communication.” Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC. . . . In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and political editorial rules are indistinguishable from the equaltime provision of 315, a speciﬁc enactment of Congress requiring stations to set aside reply time under speciﬁed circumstances and to which the fairness doctrine and

Chapter 3 • 1940 to 1969

these constituent regulations are important complements. That provision, which has been part of the law since 1927 [the Radio Act], has been held valid by this Court as an obligation of the licensee relieving him of any power in any way to prevent or censor the broadcast, and thus insulating him from liability for defamation. The constitutionality of the statute under the First Amendment was unquestioned. Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. . . . It is strenuously argued, however, that if political editorials or personal attacks will trigger an obligation in broadcasters to afford the opportunity for expression to speakers who need not pay for time and whose views are unpalatable to the licensees, then broadcasters will be irresistibly forced to self-censorship and their coverage of controversial public issues will be eliminated or at least rendered wholly ineffective. Such a result would indeed be a serious matter, for should licensees actually eliminate their coverage of controversial issues, the purposes of the doctrine would be stiﬂed. At this point, however, as the Federal Communications Commission has indicated, that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard. It would be better if the FCC’s encouragement were never necessary to induce the broadcasters to meet their responsibility. And if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect. That this will occur now seems unlikely, however, since if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues. It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect. . . . It is argued that even if at one time the lack of available frequencies for all who wished to use them justiﬁed the Government’s choice of those who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, this condition no longer prevails so that continuing control is not justiﬁed. To this there are several answers.

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Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission, have led to more efﬁcient utilization of the frequency spectrum, but uses for that spectrum have also grown apace. Portions of the spectrum must be reserved for vital uses unconnected with human communication, such as radio-navigational aids used by aircraft and vessels. Conﬂicts have even emerged between such vital functions as defense preparedness and experimentation in methods of averting midair collisions through radio warning devices. “Land mobile services” such as police, ambulance, ﬁre department, public utility, and other communications systems have been occupying an increasingly crowded portion of the frequency spectrum and there are, apart from licensed amateur radio operators’ equipment, 5,000,000 transmitters operated on the “citizens’ band” which is also increasingly congested. Among the various uses for radio frequency space, including marine, aviation, amateur, military, and common carrier users, there are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists. . . . Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, conﬁrmed habits of listeners and viewers, network afﬁliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government’s effort to assure that a broadcaster’s programming ranges widely enough to serve the public interest. In view of the scarcity of broadcast frequencies, the Government’s role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional. The judgment of the Court of Appeals in Red Lion is afﬁrmed and that in RTNDA reversed and the causes remanded for proceedings consistent with this opinion. It is so ordered.

ANALYSIS With the passage of the Radio Communications Act of 1934 (see document), Congress created the FCC to, among other things, regulate radio and television broadcasting. The FCC replaced the Federal Radio Commission, which was created by the Radio Act of 1927 (see document). Under its statutory guidelines, the FCC was authorized to regulate radio and television “as the public convenience, interest, or necessity requires.” The parameters of this nebulous standard were questioned in NBC, Inc. v. United States (1943), when NBC argued that it did not allow the FCC to regulate “chain broadcasting” agreements that the networks made with their afﬁliates. The Supreme Court rejected NBC’s argument, instead opting for a broad interpretation of the “public interest” standard, one that allowed the FCC to regulate aspects of radio not explicitly given to the agency in the legislation.

Chapter 3 • 1940 to 1969

Using its broad regulatory powers, the FCC implemented the Fairness Doctrine in 1949. The Fairness Doctrine required broadcast licensees to cover controversial public interest topics and to provide contrasting opinions on the issues. This doctrine was challenged in Red Lion Broadcasting Co. v. Federal Communications Commission (1969), after the Red Lion Broadcasting Company, whose radio station WGCB in Pennsylvania broadcast a preacher vehemently criticizing an anti–Barry Goldwater book written by Fred J. Cook. Learning of the verbal attack, Cook demanded free time from the station to reply, which was refused. After the FCC ruled that the Fairness Doctrine required Red Lion to provide Cook free rebuttal time, Red Lion took the dispute to federal court, challenging the Fairness Doctrine’s constitutionality. A unanimous Supreme Court (8–0, with Justice Douglas not participating) upheld the FCC’s right to promulgate and enforce the Fairness Doctrine. Writing for the majority, Justice White explained why traditional First Amendment prohibitions that apply to newspapers did not apply to broadcasters. The Court made this distinction because Red Lion maintained that just as the government cannot force a newspaper to include a particular viewpoint when it publishes a story, it should not be allowed to require a radio broadcaster to provide free air time for opinions that are not its own. In defense of the Fairness Doctrine, the Court adopted the “scarcity rationale,” noting that “where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.” The small number of available frequencies burdened Congress and the FCC with the requirement that, to the fullest extent possible, all opinions on controversial subjects and public persons were made available to the listening public. In other words, those trusted with broadcast licenses must serve the public interest by supplying a fair and balanced approach to issues and politicians. The Court was careful not to declare that the Constitution required the Fairness Doctrine; rather, it decided that the Constitution permitted the FCC to issue and enforce the rule. The Fairness Doctrine has been an extremely controversial regulation for two reasons. First, the rule continued to be criticized on First Amendment grounds. For many, the idea that a federal agency could force a private broadcaster to include coverage of an opinion was anathema to free speech rights. Second, the doctrine was challenged along ideological lines as well. As conservatives came to dominate the genre of talk radio, they and their listeners believed the Fairness Doctrine constrained their free speech rights and bombarded the FCC with calls for repeal. In 1987 the FCC ﬁnally repealed the Fairness Doctrine, and this decision was upheld by the U.S. Court of Appeals for the District of Columbia in 1989.1 When the FCC repealed the Fairness Doctrine, Democrats in Congress sought to overturn the FCC’s decision by codifying the rule out of concern for fairness. To that end, Congress passed a measure in 1987 to require the Fairness Doctrine, but it was vetoed by President Reagan. President George H. W. Bush was able to squash revived legislative efforts to return the Fairness Doctrine in 1991 by threatening a veto. More recent attempts by Congress to resurrect the Fairness Doctrine have also been unsuccessful. Since its repeal in 1987, the Fairness Doctrine has become a central issue in perennial discussions regarding media coverage of public issues and candidates. For many, the conservative and libertarian dominance of talk show radio, unfettered from any fairness rule, has allowed millions of listeners to shield themselves from information

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they do not want to hear. Likewise, conservatives have been migrating to radio out of concern that major television networks (e.g., ABC, NBC, and CBS) have been blatantly unfair in their political coverage. The result has been group polarization, whereby each ideological group is able to acquire the news and information it desires while insulating itself from contradictory-ideology or unwanted news. Nevertheless, with the Internet, expanding technology, and an abundance of unregulated news sources, it is highly unlikely that a reinstatement of the Fairness Doctrine would produce noticeable differences in the public’s reaction to controversial public issues and political campaigns.

Note 1. Syracuse Peace Council v. Federal Communications Commission, 867 F.2d 654.

4 1970 TO 1999 The last three decades of the 20th century witnessed some of its most signiﬁcant developments in campaign regulations emanating from federal legislation and Supreme Court decisions, though the 1970s opened inauspiciously with the defeat of the Political Broadcast Act of 1970. Congressional reformers sought to place caps on campaign spending for radio and television ads throughout the 1960s, but failed to garner sufﬁcient votes to pass anything until the Political Broadcast bill. The bill limited all federal candidates’ spending on radio and television advertisements and also suspended the equal time requirement for presidential elections. Despite President Nixon’s veto on October 12, 1970, many of the bill’s provisions later appeared in the Federal Election Campaign Act and its amendments. Reformers enjoyed the ﬁrst of many successes with the passage of the Revenue Act of 1971, which was a major step toward public funding of presidential elections, a development that had been close to the hearts of many who sought to remove big money’s inﬂuence from presidential elections. It established the familiar one-dollar (two-dollar for joint returns) checkoff boxes on federal tax forms, and allowed taxpayers to receive either a tax deduction or a tax credit for contributions to candidates, parties, and political organizations. A series of Supreme Court decisions dealing with minor party candidates’ ballot access began with Jenness v. Fortson, 403 U.S. 431 (1971) (see document) and continued through 1992 with Norman v. Reed. Despite announcing in Williams v. Rhodes, 393 U.S. 23 (1968) that the Court intended to subject laws that discriminated against minor parties to the strict scrutiny test, the Court had instead proceeded to uphold state laws in Storer v. Brown, 415 U.S. 724 (1974) and Munro v. Socialist Workers Party, 479 U.S. 189 (1986) (see document) that had a discriminatory effect on minor parties, arguing the laws advanced legitimate state interests, such as encouraging political stability, avoiding voter confusion, and preventing ballot overcrowding. Anderson v. Celebrezze, 460 U.S. 780 (1983) (see document) was a major case in this area, as the Court announced a more relaxed standard for determining the constitutionality of ballot access laws. The new test balanced the “character and magnitude” of the perceived injury or burden on minor parties against the speech and associational rights of minor parties. This relaxed standard resulted in the Court upholding most ballot access laws, notwithstanding the discrimination experienced by minor parties, for example, Norman v. Reed, 502 U.S. 279 (1992). In Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), minor parties were

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again rebuffed when the Court ruled that the First Amendment right to free speech did not require that public broadcasters include every minor party in televised debates, permitting them instead to use their editorial judgment to exclude nonserious candidates. The 1971 Federal Election Campaign Act was the decade’s major law, and it laid the foundation for amendments passed in 1974, 1976, and 1979 (see document) that strengthened, clariﬁed, expanded in part, and contracted in part the original legislation. The 1971 FECA revised disclosure rules, limited contributions and expenditures, provided for public funds in presidential elections, and reﬁned campaign broadcast regulations. Weaknesses in the act became apparent in the wake of the Watergate scandal, and Congress amended it in 1974, only to have it challenged in the Supreme Court, whose decision in Buckley v. Valeo, 424 U.S. 1 (1976) (see document) forced Congress to modify its provisions to accommodate the Court’s ruling. Democrats revisited the act in 1976 and 1979, attempting to slow rapidly increasing campaign costs and responding to the GOP’s successful fund-raising efforts. In Buckley, the Court provided the framework for future campaign ﬁnance laws. The Court upheld the FECA’s contribution limits, public ﬁnancing, disclosure, and reporting requirements. However, because the majority believed that money was speech in the context of political discourse, the Court declared that restrictions on campaign expenditures violated the First Amendment’s free speech guarantee. Given the fundamental importance of free speech to democratic elections, the Court concluded that the only government interest in restricting money in campaigns, as in restricting contributions, was to reduce actual or apparent corruption. A few questions, however, were left unanswered in Buckley, notably whether the long-standing ban on federal corporate campaign contributions was constitutional (the Court ruled afﬁrmatively in Federal Election Commission v. National Right to Work Committee, 459 U.S. 197 [1982]; see document) and whether the Buckley rules applied to state ballot initiatives. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (see document), a divided Court ruled that, because the corruption rationale did not apply, corporations were free to spend money to inﬂuence public opinion in state ballot initiative campaigns. In Austin v. Michigan State Chamber of Congress, 494 U.S. 652 (1990) (see document), the Court, for the ﬁrst time, broadened the deﬁnition of corruption, upholding a state law that banned corporations from spending general treasury funds in elections, reasoning that there was potentially a “corrosive and distorting effect” from great corporate wealth. Finally, the Court clariﬁed the FECA’s Party Expenditure Provision in Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996), ruling that the provision did not apply to independent party expenditures. The decision resulted in unlimited independent party campaign expenditures; however, this decision intersected with the explosion in soft money donations during the 1996 election cycle, which brought reforms in the next century. In mid-decade, the Court began to recognize political parties’ associational rights with its decision in Cousins v. Wigoda, 419 U.S. 477 (1975) (see document). Prior to Cousins, the Court had declared that, because parties’ nominees appeared on state primary ballots and primary elections were an “integral part” of election machinery, states could regulate, to some degree, party primary rules. However, in Democratic

Chapter 4 • 1970 to 1999

Party of the United States v. Wisconsin, 450 U.S. 107 (1981), Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1987), and Eu v. San Francisco County Democratic Party, 489 U.S. 214 (1989), the Court ruled that the parties’ associational rights outweighed the states’ regulations. The only decision supporting state regulatory interests was Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (see document), in which the Court upheld a state ban on fusion candidacies. A fusion candidacy occurs when one party nominates a person who is also the candidate of another party. Interestingly, while the other decisions involved major parties’ associational rights, Timmons involved the rights of a minor party, making the decision consistent with other ballot access decisions in this chapter. In 1993 Congress moved to amend the 1939 Hatch Act, which imposed restrictions on federal employees’ ability to participate in political campaigns. The 1993 revisions eased many of the original legislation’s regulations, but maintained those that prevented civil servants from engaging in political work while on the job. Redistricting and gerrymandering drew the Court’s attention during this period, as it attempted to clarify its interpretation of the 1965 Voting Rights Act as amended. After the Court’s pronouncement of the “one person, one vote” standard in Baker v. Carr, 369 U.S. 186 (1962), and its decision in Wesberry v. Sanders, 376 U.S. 1 (1964) that congressional districts must be of roughly equal populations, federal courts wrestled with reapportionment and redistricting issues. In two cases, White v. Regester, 412 U.S. 755 (see document) and Gaffney v. Cummings, 412 U.S. 735, the Court tried to resolve how much population disparity was allowed across districts under the law. In both cases, the Court held that population disparities under 10 percent were not necessarily unconstitutional. In Davis v. Bandemer, 478 U.S. 109 (1986) (see document), the Court ruled that courts could hear legal claims that state legislatures engaged in political discrimination when redrawing congressional district boundaries. The Court was unable, however, to decide on a standard for future courts to determine whether state legislatures had unfairly discriminated against a political party. In Shaw v. Reno, 509 U.S. 630 (1993) (see document), the Court declared that the 14th Amendment’s Equal Protection Clause prohibited states from intentionally creating

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DID YOU KNOW? The Political Broadcast Act of 1970, S. 3637 Television came to dominate American culture in the 1960s and, in the process, changed the content and method of advertising everything, including politics. As a visual medium, TV transfers information differently from print and radio, placing greater emphasis on how things and people look rather than qualities such as performance and integrity. Campaign consultants responded by packaging their candidates as they would commercial products, selling their “merchandise” in 30second ads containing evocative images (see McGinniss 1969). Critics bemoaned the increasing superﬁciality of candidates’ TV spots and worried that voters were not being given sufﬁcient information to cast intelligent votes. In addition, as television’s audience swelled, broadcasters raised their advertising rates accordingly, thereby increasing campaign costs. By 1969 campaign reform advocates were growing frustrated as they witnessed the escalating costs of Senate, House, and presidential races and campaign advertising’s transition from substance to image (see Peabody et al. 1972), but they were unable to pass legislation. Into the debate stepped the National Committee for an Effective Congress (NCEC), which drafted a bill, the Political Broadcast Act, and lobbied sympathetic congressmen to sponsor it. As originally drafted by NCEC, the bill ensured that all qualiﬁed congressional candidates could purchase a deﬁned amount of TV time in their districts or states and required that station owners offer congressional candidates discounts on campaign ads (Peabody et al. 1972, 36–47). The House passed the Senate’s version, S. 3637, on September 16, 1970, and on September 23, the Senate voted 60–19, but President Nixon vetoed it on October 12. An override failed when the Senate voted 58–34 on November 23. The act would have eliminated the FCC’s equal time rule—section 315—for presidential elections only. It also required that broadcasters sell advertising to federal candidates at the lowest rate offered to any other customer at the same time slot. Finally, it imposed spending limits on TV advertising for all federal candidates and state governor and lieutenant governor candidates, in general elections, calculated from the total number of votes cast in prior elections multiplied by seven cents, to a maximum of $20,000. Despite this setback, reformers ﬁnally succeeded with the FECA in 1971.

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DID YOU KNOW? Further Reading Garcia, Kari. 2008. “Broadcasting Democracy: Why America’s Political Candidates Need Free Airtime.” CommLaw Conspectus 17:267–28). McGinniss, Joe. 1969. The Selling of the President 1968. New York: Trident. Peabody, Robert L., Jeffrey M. Berry, William G. Frasure, and Jerry Goldman. 1972. To Enact a Law: Congress and Campaign Financing. New York: Praeger. Taylor, Paul, and Norman Ornstein. 2002. “The Case for Free Air Time: A Broadcast Spectrum Fee for Campaign Finance Reform.” Working Paper. New America Foundation, Public Assets Program. June.

majority-minority districts. The Shaw litigation, originating from North Carolina, lasted for almost a decade as the state attempted to redraw its districts in light of the Court’s rulings. The century ended with yet another campaign scandal, though smaller in magnitude than Watergate. President Clinton and the Democratic National Committee engaged in questionable and, in a few instances, illegal practices to raise money during the 1996 election. Both chambers of the Republican-controlled Congress conducted investigations into the matter, with the Senate issuing a majority report that detailed the most egregious activities. Recommendations contained in the reports eventually found their way into campaign reforms in the next century.

• Document: Jenness v. Fortson, 403 U.S. 431 (1971) • Date: Decided June 21, 1971 • Signiﬁcance: In this decision, the U.S. Supreme Court upheld a Georgia ballot access law that required minor party candidates to gather petition signatures equal to 5 percent of registered votes cast in the previous general election for the same ofﬁce. The Court distinguished Georgia’s law from the burdensome law declared unconstitutional in Williams v. Rhodes (1968). The long-term impact of Jenness did not help minor parties, because the justices signaled a shift in how courts should assess the constitutionality of election laws. Rather than requiring states to justify their laws with a “compelling reason,” Jenness appeared to endorse the idea of allowing states to demonstrate only “important interests.”

DOCUMENT Jenness v. Fortson, 403 U.S. 431 (1971) Justice Stewart delivered the opinion of the Court Under Georgia law a candidate for elective public ofﬁce who does not enter and win a political party’s primary election can have his name printed on the ballot at the general election only if he has ﬁled a nominating petition signed by at least 5% of the number of registered voters at the last general election for the ofﬁce in question. Georgia law also provides that a candidate for elective public ofﬁce must pay a ﬁling fee equal to 5% of the annual salary of the ofﬁce he is seeking. This litigation arose when the appellants, who were prospective candidates and registered voters, ﬁled a class action . . . attacking the constitutionality of these provisions of the Georgia Election Code, and seeking declaratory and injunctive relief. 143

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A three-judge court was convened . . . The District Court granted the motion and entered an injunction with respect to the ﬁling-fee requirement, holding that this requirement operates to deny equal protection of the laws as applied to those prospective candidates who cannot afford to pay the fees. . . . With respect to the nominating-petition requirement, the District Court denied the motion and refused to enter an injunction, holding that this statutory provision is constitutionally valid. From that refusal a direct appeal was brought here . . . and we noted probable jurisdiction. The basic structure of the pertinent provisions of the Georgia Election Code is relatively uncomplicated. Any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a “political party.” Any other political organization is a “political body.” “Political parties” conduct primary elections, regulated in detail by state law, and only the name of the candidate for each ofﬁce who wins this primary election is printed on the ballot at the subsequent general election, as his party’s nominee for the ofﬁce in question. A nominee of a “political body” or an independent candidate, on the other hand, may have his name printed on the ballot at the general election by ﬁling a nominating petition. This petition must be signed by “a number of electors of not less than ﬁve per cent. of the total number of electors eligible to vote in the last election for the ﬁlling of the ofﬁce the candidate is seeking. . . . ” The total time allowed for circulating a nominating petition is 180 days, and it must be ﬁled on the second Wednesday in June, the same deadline that a candidate ﬁling in a party primary must meet. . . . There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of his choice and to have that write-in vote counted. In this litigation the appellants have mounted their attack upon Georgia’s nominating-petition requirement on two different but related constitutional fronts. First, they say that to require a nonparty candidate to secure the signatures of a certain number of voters before his name may be printed on the ballot is to abridge the freedoms of speech and association guaranteed to that candidate and his supporters by the First and Fourteenth Amendments. Secondly, they say that when Georgia requires a nonparty candidate to secure the signatures of 5% of the voters before printing his name on the ballot, yet prints the names of those candidates who have won nomination in party primaries, it violates the Fourteenth Amendment by denying the nonparty candidate the equal protection of the laws. Since both arguments are primarily based upon this Court’s decision in Williams v. Rhodes (1968), it becomes necessary to examine that case in some detail. In the Williams case the Court was confronted with a state electoral structure that favored “two particular parties—the Republicans and the Democrats—and in effect tend[ed] to give them a complete monopoly.” Id., at 32. The Court held unconstitutional the election laws of Ohio insofar as in combination they made it “virtually impossible for a new political party, even though it ha[d] hundreds of thousands of members, or an old party, which ha[d] a very small number of members, to be placed on the state ballot” in the 1968 presidential election. Id., at 24. . . . The Court’s decision . . . was unambiguous and positive. It held that “the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.” Id., at 34.

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But the Williams case, it is clear, presented a statutory scheme vastly different from the one before us here. Unlike Ohio, Georgia freely provides for write-in votes. Unlike Ohio, Georgia does not require every candidate to be the nominee of a political party, but fully recognizes independent candidacies. Unlike Ohio, Georgia does not ﬁx an unreasonably early ﬁling deadline for candidates not endorsed by established parties. Unlike Ohio, Georgia does not impose upon a small party or a new party the Procrustean requirement of establishing elaborate primary election machinery. Finally, and in sum, Georgia’s election laws, unlike Ohio’s, do not operate to freeze the political status quo. In this setting we cannot say that Georgia’s 5% petition requirement violates the Constitution. Anyone who wishes, and who is otherwise eligible, may be an independent candidate for any ofﬁce in Georgia. Any political organization, however new or however small, is free to endorse any otherwise eligible person as its candidate for whatever elective public ofﬁce it chooses. So far as the Georgia election laws are concerned, independent candidates and members of small or newly formed political organizations are wholly free to associate, to proselytize, to speak, to write, and to organize campaigns for any school of thought they wish. They may conﬁne themselves to an appeal for write-in votes. Or they may seek, over a six months’ period, the signatures of 5% of the eligible electorate for the ofﬁce in question. If they choose the latter course, the way is open. For Georgia imposes no suffocating restrictions whatever upon the free circulation of nominating petitions. A voter may sign a petition even though he has signed others, and a voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary. . . . The open quality of the Georgia system is far from merely theoretical. For the stipulation of facts in this record informs us that a candidate for Governor in 1966 and a candidate for President in 1968, gained ballot designation by nominating petitions, and each went on to win a plurality of the votes cast at the general election. In a word, Georgia in no way freezes the status quo, but implicitly recognizes the potential ﬂuidity of American political life. . . . We can ﬁnd in this system nothing that abridges the rights of free speech and association secured by the First and Fourteenth Amendments. The appellants’ claim under the Equal Protection Clause of the Fourteenth Amendment fares no better. This claim is necessarily bottomed upon the premise that it is inherently more burdensome for a candidate to gather the signatures of 5% of the total eligible electorate than it is to win the votes of a majority in a party primary. That is a premise that cannot be uncritically accepted. Although the number of candidates in a party primary election for any particular ofﬁce will, of course, vary from election to election, the appellee’s brief advises us that in the most recent election year there were 12 candidates for the nomination for the ofﬁce of Governor in the two party primaries. Only two of these 12, of course, won their party primaries and had their names printed on the ballot at the general election. Surely an argument could as well be made on behalf of the 10 who lost, that it is they who were denied equal protection vis-a-vis a candidate who could have had his name printed on the ballot simply by ﬁling a nominating petition signed by 5% of the total electorate. The fact is, of course, that from the point of view of one who aspires to elective public ofﬁce in Georgia, alternative routes are available to getting his name printed on the ballot. He may enter the primary of a political party, or he may circulate

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DID YOU KNOW? The Revenue Act of 1971, Titles VII and VIII, PL 92-178 Using a tax bill favored by President Nixon, advocates of publicly ﬁnancing presidential elections added provisions to the bill, and despite veto threats, it was signed by the president on December 10, 1971. Under Title VII, individuals could take tax credits to a yearly maximum of $12.50 (or $25.00 for a couple ﬁling jointly) for contributions made to federal, state, or local candidates in primary, general, or special elections and to political committees, parties, or organizations whose sole purpose was to elect one or more candidates. Or individuals could take tax deductions of up to $25.00, or a couple, $50.00 for the same contributions. Title VIII contained the presidential public ﬁnancing system. Taxpayers could check a box on their income tax form to have one dollar (or two dollars for couples ﬁling jointly) sent to the Presidential Election Campaign Fund. Taxpayers could also indicate whether they wanted their donations to apply to a particular party’s candidate or the general fund. Eligibility criteria for major and minor party presidential candidates to receive matching public funds for their campaigns were established. The criteria were based on the percentage of the vote that the candidate’s party received in the previous presidential election. Candidates could receive the public funds only if they agreed to limit their total campaign spending to an amount equal to 15¢ multiplied by the number of voting age citizens. The campaign fund was monitored by the comptroller general. Candidates applied to this ofﬁce for eligibility and submitted required reports detailing their total contributions and expenditures. The comptroller general issued regular reports to Congress on the fund’s operation. Penalties for violating the terms of the statute were included, with substantial ﬁnes and imprisonment imposed on those found guilty of violations.

nominating petitions either as an independent candidate or under the sponsorship of a political organization. We cannot see how Georgia has violated the Equal Protection Clause of the Fourteenth Amendment by making available these two alternative paths, neither of which can be assumed to be inherently more burdensome than the other. . . . There is surely an important state interest in requiring some preliminary showing of a signiﬁcant modicum of support before printing the name of a political organization’s candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election. The 5% ﬁgure is, to be sure, apparently somewhat higher than the percentage of support required to be shown in many States as a condition for ballot position, but this is balanced by the fact that Georgia has imposed no arbitrary restrictions whatever upon the eligibility of any registered voter to sign as many nominating petitions as he wishes. Georgia in this case has insulated not a single potential voter from the appeal of new political voices within its borders. The judgment is afﬁrmed.

ANALYSIS

On the heels of the Court’s signiﬁcant ballot-access decision in Williams v. Rhodes (1968) (see document) in which the Court struck down an Ohio law that made it signiﬁcantly more difﬁcult for minor parties to gain access to general election ballots, the Supreme Court evaluated the constitutionality of a Georgia election law that kept Socialist Workers Party candidate Linda Jenness off the ballot. Georgia’s law required minor party candidates to ﬁle a nominating petition with the signatures of at least 5 percent of the number of registered voters at the last general election for the ofﬁce sought. The law also required the candidate to pay a ﬁling fee equal to 5 percent of the annual salary for the elected ofﬁce in question. Jenness et al. challenged the law’s constitutionality on two grounds, citing Williams v. Rhodes (1968) for support. First, they argued that the speech and associational freedoms of minor candidates and their supporters were violated by requiring that they gather signatures as a prerequisite for ballot access. Second, the plaintiffs alleged that the law amounted to a 14th Amendment Equal Protection Clause violation, because while major party nominees were given automatic ballot access, minor party candidates had to secure signatures in signiﬁcant numbers.

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A unanimous Supreme Court upheld the law. Justice Potter Stewart’s opinion explained that Georgia’s DID YOU KNOW? electoral scheme was “vastly different” from the one at issue in Williams v. Rhodes (1968). Ohio required every nominee to be a political party member, proSeveral of the act’s provisions were revised over the years, such as in 1973 when taxpayers lost the opporhibited write-in votes, and imposed an early ﬁling tunity to designate their one dollar (or two dollars for a deadline for minor party candidates, whereas Georcouple) to a particular party’s candidate, but the tax degia recognized independent candidacies, permitted duction and tax credits for political contributions were write-in votes, and did not impose an unfair, early ultimately repealed by the Revenue Act of 1978 and the ﬁling deadline. Furthermore, Justice Stewart mainTax Reform Act of 1986, respectively. The tax checktained that the fairness of Georgia’s election scheme off boxes remained on tax forms and the matchinggrant public ﬁnance system continued through the 2008 was empirically evident, and not “merely theoretipresidential election. But the latter election profoundly cal,” because in previous years, nonmajor party canchanged how presidential candidates, parties, and didates for governor and president in 1966 and 1968, scholars view the public funding system. Public fundrespectively, received a plurality of the votes cast in ing’s future remains clouded. the election. Therefore, the speech and associational Further Reading rights of minor parties were not violated by Georgia’s election laws. Corrado, Anthony, Thomas E. Mann, Daniel R. Ortiz, Trevor Potter, and Frank J. Sorauf, eds. 1997. CamLikewise, Justice Stewart dismissed the petitionpaign Finance Reform: A Sourcebook. Washington, ers’ Equal Protection Clause complaint, citing GeorDC: Brookings Institution Press. gia’s liberal policy of providing “alternative routes” to LaRaja, Raymond J. 2008. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann the general election ballot. Potential candidates could Arbor: University of Michigan Press. run in a major party primary or could circulate nomiMutch, Robert E. 1988. Campaigns, Congress, and nating petitions either as an independent or “under the Courts: The Making of Federal Campaign Finance sponsorship of a political organization.” For the justices, Law. New York: Praeger. Georgia’s ballot access laws were far more open and forgiving than the Ohio law the Court had rejected in Williams v. Rhodes (1968). Though not yet fully apparent, Jenness v. Fortson signaled a shift in the Supreme Court’s reasoning on ballot access laws. While the majority in Williams v. Rhodes (1968) applied strict scrutiny to Ohio’s early ﬁling deadline, requiring the state to present a compelling interest for regulation, the Jenness court avoided such language, thereby muddying the jurisprudential waters. Without explicit acknowledgment, the Court at least appeared to shift the level of analysis, noting that Georgia possessed an “important interest,” rather than a compelling interest, in requiring minor party candidates to obtain so many signatures. Jenness v. Fortson has also been subject to scholarly criticism, most notably from law professor Jamin Raskin. Raskin has criticized the Court for sanitizing the law and ignoring the political realities, namely, that while the law required Jenness to collect 88,175 signatures, the reality was that minor party candidates had to collect over 100,000 signatures because many signers were disqualiﬁed for incorrect information such as their political district. Furthermore, Raskin argued, it was disingenuous for the Court to minimize the difﬁculty in collecting 88,000-plus signatures by equating it to winning a party’s primary. It is exceedingly more difﬁcult to collect nearly 90,000 legitimate signatures. According to Raskin, the result has been “an outrageous double standard that has since afﬂicted third parties, who are essentially forced to leap tall buildings just to put their candidates’ names on the ballot” (Raskin 2003, 102).

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Raskin (2003) argued that Jenness “continues to haunt the jurisprudence of ballot access law” (102), because in future decisions the Court followed the principle of Jenness rather than Williams. Most notably, the Supreme Court abandoned the strict scrutiny of ballot access laws, ﬁrst outlined in Williams, in favor of an approach more amenable to the states’ concerns about the potential disrupting inﬂuence of minor parties. Starting with Jenness, Supreme Court justices appeared implicitly skeptical (sometimes explicitly) about the role that minor parties played in the democratic process, most often agreeing that states can impose barriers to minor party success in the interest of reducing voter confusion, ballot overcrowding, and party splintering.

FURTHER READING Raskin, Jamin. 2003. “America’s Signature Exclusion: How Democracy Is Made Safe for the Two-Party System.” In Overruling Democracy: The Supreme Court vs. the American People. New York. Routledge.

• Document: Federal Election Campaign Act (FECA) of 1971, as amended in 1974, 1976, and 1979 • Dates: FECA of 1971 signed by President Nixon on February 7, 1972 FECA Amendments of 1974 signed by President Ford on October 15, 1974 FECA Amendments of 1976 signed by President Ford on May 11, 1976 FECA Amendments of 1979 signed by President Carter on January 8, 1980 • Signiﬁcance: The 1971 FECA and its subsequent amendments were major achievements for campaign reform advocates. Though Buckley v. Valeo (1976) (see document) declared parts of the 1974 amendments unconstitutional and necessitated revisions, the act remains a milestone in American history.

DOCUMENT Federal Election Campaign Act of 1971 as amended in 1979, PL 92-225 86 Stat. 3 AN ACT. To amend the Federal Election Campaign Act of 1971 to make certain changes in the reporting and disclosure requirements of such Act, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Federal Election Campaign Act Amendments of 1979”. TITLE I—AMENDMENTS TO FEDERAL ELECTION CAMPAIGN ACT OF 1971 149

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SEC. 101. Section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431), hereinafter in this Act referred to as the “Act”, is amended to read as follows: “SEC. 301 When used in this Act: . . . “(2) The term ‘candidate’ means an individual who seeks nomination for election, or election, to Federal ofﬁce, and for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election— “(A) if such individual has received contributions aggregating in excess of $5,000; or “(B) if such individual has given his or her consent to another person to receive contributions or make expenditures on behalf of such individual and if such person has received such contributions aggregating in excess of $5,000 or has made such expenditures aggregating in excess of $5,000. “(3) The term ‘Federal ofﬁce’ means the ofﬁce of President or Vice President, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress. “(4) The term ‘political committee’ means— “(A) any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year: or “(B) any separate segregated fund established under the provisions of section 316(b); or “(C) any local committee of a political party which receives contributions aggregating in excess of $5,000 during a calendar year, or makes payments exempted from the deﬁnition of contributions or expenditure as deﬁned in section 301 (8) and (9) aggregating in excess of $5,000 during a calendar year, or makes contributions aggregating in excess of $1,000 during a calendar year or makes expenditures aggregating in excess of $1,000 during a calendar year. “(5) The term ‘principal campaign committee’ means a political committee designated and authorized by a candidate under section 302(e)(1). . . . “8)(A) The term ‘contribution’ includes— “(i) any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of inﬂuencing any election for Federal ofﬁce; or “(ii) the payment by any person of compensation for the personal services of another person which are rendered to a political committee without charge for any purpose. . . . “(9)(A) The term ‘expenditure’ includes— “(i) any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of inﬂuencing any election for Federal ofﬁce; and “(ii) a written contract, promise, or agreement to make an expenditure. . . . “(14) The term ‘national committee’ means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Commission. . . . “(16) The term ‘political party’ means an association, committee, or organization which nominates a candidate for election to any Federal ofﬁce whose name appears on the election ballot as the candidate of such association, committee, or organization. “(17) The term ‘independent expenditure’ means an expenditure by a person expressly advocating the election or defeat of a clearly identiﬁed candidate which is made without cooperation or consultation with any candidate, or any authorized

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committee or agent of such candidate, and which is not made in concert with, or at the request or suggestion of, any candidate, or any authorized committee or agent of such candidate. . . . SEC. 102. Section 302 of the Act (2 U.S.C. 432) is amended to read as follows: “SEC. 302. (a) Every political committee shall have a treasurer. No contribution or expenditure shall be accepted or made by or on behalf of a political committee during any period in which the ofﬁce of treasurer is vacant. No expenditure shall be made for or on behalf of a political committee without the authorization of the treasurer or his or her designated agent. “(b)(1) Every person who receives a contribution for an authorized political committee shall, no later than 10 days after receiving such contribution, forward to the treasurer such contribution, and if the amount of the contribution is in excess of $50 the name and address of the person making the contribution and the date of receipt. “(2) Every person who receives a contribution for a political committee which is not an authorized committee shall— “(A) if the amount of the contribution is $50 or less, forward to the treasurer such contribution no later than 30 days after receiving the contribution; and “(B) if the amount of the contribution is in excess of $50, forward to the treasurer such contribution, the name and address of the person making the contribution, and the date of receipt of the contribution, no later than 10 days after receiving the contribution. “(3) All funds of a political committee shall be segregated from, and may not be commingled with, the personal funds of any individual. . . . SEC. 104. Section 304 of the Act (2 U.S.C 434) is amended to read as follows: “Reports “SEC. 304. (a)(1) Each treasurer of a political committee shall ﬁle reports of receipts and disbursements in accordance with the provisions of this subsection. The treasurer shall sign each such report. “(2) If the political committee is the principle campaign committee of a candidate for the House of Representatives or for the Senate— “(A) in any calendar year during which there is regularly scheduled election for which such candidate is seeking election, or nomination for election, the treasurer shall ﬁle the following reports: “(i) a pre-election report, which shall be ﬁled no later than the 12th day before (or posted by registered or certiﬁed mail no later than the 15th day before) any election in which such candidate is seeking election, or nomination for election, and which shall be complete as of the 20th day before such election; “(ii) a post-general election report, which shall be ﬁled no later than the 30th day after any general election in which such candidate has sought election, and which shall be complete as of the 20th day after such general election; and “(iii) additional quarterly reports, which shall be ﬁled no later than the 15th day after the last day of each calendar quarter. . . . “(3) If the committee is the principle campaign committee of a candidate for the ofﬁce for President— “(A) in any calendar year during which a general election is held to ﬁll such ofﬁce— “(i) the treasurer shall ﬁle monthly reports if such committee has on January 1 of such year, received contributions aggregating $100,000 or made expenditures

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aggregating $100,000 or anticipates receiving contributions aggregating $100,000 or more or making expenditures aggregating $100,000 or more during such year: such monthly reports shall be ﬁled no later than the 20th day after the last day of each month and shall be complete as of the last day of the month. . . . “(4) All political committees other than authorized committees of a candidate shall ﬁle either— “(A)(i) quarterly reports, in a calendar year in which a regularly scheduled general election is held, which shall be ﬁled no later than the 15th day after the last day of each calendar quarter: except that the report for the quarter ending on December 31 of each calendar year shall be ﬁled no later than January 31 of the following calendar year; “(ii) a pre-election report, which shall be ﬁled no later than the 12th day before (or posted by registered or certiﬁed mail no later than the 15th day before) any election in which the committee makes a contribution to or expenditure on behalf of a candidate in such election, and which shall be complete as of the 20th day before the election; “(iii) a post-general election report, which shall be ﬁled no later than the 30th day after the general election and which shall be complete as of the 20th day after such general election. . . . “(6)(A) The principle campaign committee of a candidate shall notify the Clerk, the Secretary, or the Commission, and the Secretary of State, as appropriate, in writing, of any contribution of $1,000 or more received by any authorized committee of such candidate after the 20th day, but more than 48 hours before, any election. . . . “(c)(1) Every person (other than a political committee) who makes independent expenditures in an aggregate amount or value in excess of $250 during a calendar year shall ﬁle a statement containing the information required under subsection (b)(3)(A) for all contributions received by such person. “(2) Statements required to be ﬁled by this subsection shall be ﬁled in accordance with subsection (a)(2), and shall include— “(A) the information required by subsection (b)(6)(B)(iii), indicating whether the independent expenditure is in support of, or in opposition to, the candidate involved; “(B) under penalty of perjury, a certiﬁcation whether or not such independent expenditure is made in cooperation, consultation, or concert, with, or t the request or suggestion of, any candidate or any authorized committee or agent of such candidate; and “(C) the identiﬁcation of each person who made a contribution in excess of $200 to the person ﬁling such statement which was made for the purpose of furthering an independent expenditure. Any independent expenditure (including those described in subsection (b)(6)(B)(iii)) aggregating $1,000 or more made after the 20th day, but more than 24 hours, before any election shall be reported within 24 hours after such independent expenditure is made. Such statement shall be ﬁled with the Clerk, the Secretary, or the Commission and the Secretary of State and shall contain the information required by subsection (b)(6)(iii) indicating whether the independent expenditure is in support of, or in opposition to, the candidate involved. “SEC. 306. (a)(1) There is established a commission to be known as the Federal Election Commission. The Commission is composed if the Secretary of the Senate and the Clerk of the House of Representatives of their designees, ex ofﬁcio and without the right to vote, and 6 members appointed by the President by and with the advice and members appointed by the President, by and with the advice and consent of the Senate. No more than 3 members of the Commission appointed under this paragraph may be afﬁliated with the same political party.

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“(2)(A) Members of the Commission shall serve for terms of 6 years, except that of the members ﬁrst appointed— . . . SEC. 106. Section 307, as so redesignated in section 105(a)(3), is amended to read as follows: “POWERS OF THE COMMISSION “SEC. 307. (a) The Commission has the power— . . . “(7) to render advisory opinions under section 308 of this Act . . . “(9) to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities. . . . ADVISORY OPINIONS SEC. 101. (a) Section 308 of this Act, as so redesignated in section 105 (a)(4), is amended to read as follows: “SEC. 308 . . . “(b) Any rule of law which is not stated in this Act or in chapter 95 or chapter 96 of the Internal Revenue Code of 1954 may be initially proposed by the Commission only as a rule or regulation pursuant to procedures established in section 311(d). No opinion of an advisory nature may be issued by the Commission or any of its employees except in accordance with the provisions of this section. “(c)(1) Any advisory opinion rendered by the Commission under subsection (a) may be relied upon by— “(A) any person involved in the speciﬁc transaction or activity with respect to which such advisory opinion is rendered; and “(B) any person involved in any speciﬁc transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion is rendered. . . . “(d) The Commission shall make public any request made under subsection (a) for an advisory opinion. Before rendering an advisory opinion, the Commission shall accept written comments submitted by any interested party within the 10-day period following the date the request is made public.” SEC. 108. Section 309 of the Act, as so redesignated in section 105(a)(4), is amended to read as follows: “ENFORCEMENT “SEC. 309. . . . “(4)(A)(i) Except as provided in clause (ii), if the Commission determines, by an afﬁrmative vote of 4 of its members, that there is probable cause to believe that any person has committed, or is about to commit, a violation of this Act or of chapter 95 or chapter 96 of the Internal Revenue Code of 1954, the Commission shall attempt, for a period of at least 30 days, to correct or prevent such violation by informal methods of conference, conciliation, and persuasion, and to enter either into a conciliation agreement with any person involved. Such attempt by the Commission to correct or prevent such violation may continue more for a period of not more than 90 days. The Commission may not enter into a conciliation agreement under this clause except pursuant to an afﬁrmative vote of 4 of its members. A conciliation agreement, unless violated, is a complete bar to any further action by the Commission, including the bringing of a civil proceeding under paragraph(6)(A). . . . “ADMINISTRATIVE PROVISIONS “SEC. 311. (a) The Commission shall— . . .

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“(d)(1) Before prescribing any rule, regulation, or form under this section or any other provision of this Act, the Commission shall transmit a statement with respect to such rule, regulation, or form to the Senate and the House of Representatives, in accordance with this subsection. Such statement shall set forth the proposed rule, regulation, or form, and shall contain a detailed explanation and justiﬁcation of it. “(2) If either House of the Congress does not disapprove by resolution any proposed rule or regulation submitted by the Commission under this subsection within 30 legislative days after the date of the receipt of such proposed rule or regulation within 10 legislative days after the date of receipt of such proposed form, the Commission may prescribe such rule, regulation, or form . . . “(4) For purposes of this subsection, the terms ‘rule’ and ‘regulation’ mean a provision or series of interrelated provisions stating a single, separable rule of law. . . . SEC. 113. Section 313 of the Act (as redesigated by section 105(4)) is amended to read as follows: “USE OF CONTRIBUTED AMOUNTS FOR CERTAIN PURPOSES “SEC. 313. Amounts received by a candidate as contributions that are in excess of any amount necessary to defray his expenditures, and any other amounts contributed to an individual for the purpose of supporting his or her activities as a holder of Federal ofﬁce, may be used by such candidate or individual, as the case may be, to defray any ordinary expenses incurred in connection with his or her duties as a holder of Federal ofﬁce, may be contributed to any organization described in section 170(c) of the Internal Revenue Code of 1954, or may be used for any other lawful purpose, including transfers without limitation to any national, State, or local committee of any political party; except that, with respect to any individual who is not a Senator or Representative in, or Delegate or Resident Commissioner to, the Congress on the date of the enactment of the Federal Election Campaign Act Amendments of 1979, no such amounts may be converted by any person to any personal use, other than to defray any ordinary and necessary expenses incurred in connection with his or her duties as a holder of Federal ofﬁce.” TITLE II—AMENDMENTS TO OTHER LAWS “SEC. 602. It shall be unlawful for— “(1) a candidate for the Congress; “(2) an individual elected to or serving in the ofﬁce of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress; “(3) an ofﬁcer or employee of the United States or any department or agency thereof; or “(4) a person receiving any salary or compensation for services from money derived from the Treasury of the United States to knowingly solicit, any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 from any other such ofﬁcer, employee, or person. Any person who violates this section shall be ﬁned not more than $5,000 or imprisoned not more than three years, or both.” (4) Section 603 of such title is amended to read as follows: “MAKING POLITICAL CONTRIBUTIONS “SEC. 603. (a) It shall be unlawful for an ofﬁcer or employee of the United States or any department or agency thereof, or a person receiving any salary or compensation for services from money derived from the Treasury of the United States, to make any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 to any other such ofﬁcer, employee or person or to any Senator

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or Representative in, or Delegate or Resident Commissioner to, the Congress, if the person receiving such contributions is the employer or employing authority of the person making the contribution. Any person who violates this section shall be ﬁned not more than $5,000 or imprisoned not more than three years, or both. “(b) For purposes of this section, a contribution to an authorized committee as deﬁned in section 302(e)(1) of the Federal Election Campaign Act of 1971 shall be considered a contribution to the individual who has authorized such committee.” . . . MISCELLANEOUS AMENDMENT TO THE INTERNAL REVENUE CODE OF 1954 SEC. 202. Section 9008(b) of the Internal Revenue Code of 1954 is amended by striking at the end thereof the ﬁgure “$2,000,000” and inserting in lieu thereof “3,000,000”.

ANALYSIS Introduction The 1971 FECA was a milestone in federal campaign regulations. It revised disclosure rules, limited contributions and expenditures, provided for public funds in presidential elections, and reﬁned campaign broadcast regulations. But the Watergate scandal revealed the act’s ﬂaws, and Congress amended it in 1974. The amendments were immediately challenged, forcing Congress to revise it in 1976 to accommodate the Supreme Court’s Buckley v. Valeo ruling that year. Democrats revisited the act in 1979, when they realized that the earlier amendments had not slowed escalating campaign costs and that Republicans appeared capable of overtaking them in fund-raising. Rather than present the full text of the 1971 FECA and each of its amendments, the document above is the 1971 act as amended in 1979. The legislative histories and summaries of the act and its amendments appear below so readers may better understand the legislation’s development.

Federal Election Campaign Act of 1971 (PL 92-225) Democrats had experienced mixed legislative success in reforming campaign rules, witnessing the Political Broadcast Act’s veto by President Nixon and the passage of the 1971 Revenue Act. They remained at a signiﬁcant disadvantage in their ability to raise money, however, compared to Republicans. President Nixon was a prodigious fund-raiser, who borrowed from Mark Hanna’s playbook and set benchmarks for contributions he expected to receive from businesses (Alexander 1992, 18). Undaunted, Democrats continued with their legislative strategy conceived in the summer of 1970. Democrats had beneﬁted from the work of the National Committee for an Effective Congress on the vetoed 1970 Political Broadcasting Act, but a new public interest group, Common Cause, provided unexpected assistance in moving the FECA through Congress. Founded by John Gardner in 1970, Common Cause was a public advocacy group employing new tactics. Rather than limiting itself to lobbying Congress, it ﬁled a class action suit in January 1971 against New York’s major parties for dodging the 1925 Federal Corrupt Practices Act’s limits on contributions and expenditures by forming many political committees, each raising and spending funds on behalf of their candidates. The litigation brought public attention to the FCPA’s

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deﬁciencies and gave Democrats needed evidence to support their contention that the campaign ﬁnancing system was broken (see McFarland 1984). Elements of the failed Political Broadcasting Act were repackaged and introduced as the FECA during the summer of 1971 in both houses. Nixon again threatened a veto, but there appeared to be bipartisan support for reform. In the Senate, Republicans Hugh Scott (PA), Winston Prouty (VT), Charles McC. Mathias (MD), and John Cooper (KY) agreed that the FCPA gave an illusion of regulation but that its many loopholes made it ineffective. They argued for more disclosure but opposed spending limits as a First Amendment, free speech violation. They also believed that imposing spending caps generally harmed challengers more than incumbents (Hohenstein 2007, 210). Most Republicans appeared willing to accept public ﬁnancing of presidential campaigns if it was not also extended to congressional elections. The three major television networks’ heads contested the bill’s requirement that broadcasters sell ads to candidates at their lowest rates but favored the elimination of the FCC’s equal time rule, which mandated that a station give air time to all candidates in a race if one candidate appeared on that station. The bill linked the repeal of the equal time rule with the adoption of limits on candidates’ TV ad expenditures. Much of the Democrats’ original bill survived despite concessions the Republicans extracted, among them repealing all prior contribution and spending limits, adding limits on candidates and their immediate families’ personal contributions to their campaigns, and creating independent agencies unconnected to Congress or the executive branch to monitor the campaign rules. Since Democrats had become more dependent on recruiting wealthy candidates capable of self-ﬁnancing their campaigns, restricting a candidate’s ability to self-ﬁnance a campaign harmed Democrats more than Republicans. Republicans partially succeeded on the last point, as the law did not include an independent ofﬁce; instead, congressional candidates submitted reports to the clerks of their respective chambers, but presidential candidates were required to send their reports to the General Accounting Ofﬁce (now called the Government Accountability Ofﬁce) (Mutch 1988, 45). On balance, the 1971 FECA was partisan, and generally favored the Democratic Party’s needs. In its ﬁnal form, Title I, the Campaign Communications Reform Act, amended section 315(b) of the 1934 Federal Communications Act, which required that broadcasters charge qualiﬁed federal candidates their lowest advertising rates for 45 days and 60 days before the primary and general election dates, respectively. Newspaper and magazine publishers were also mandated to offer their lowest ad rates to qualiﬁed candidates. It imposed limits on all federal candidates’ expenditures on media advertising, including broadcast TV, cable TV, radio, newspapers, magazines, and automated telephone calls for primary and general elections. Federal candidates could spend no more than 60 percent of their media buys on TV and radio ads, with primary and general election campaigns counted separately. The amount candidates could spend on all advertising was equal to the total voting age population of the district, state, or country multiplied by 10¢, or $50,000, whichever number was greater. The act amended the FCC’s equal time rule, as applied to presidential and vice presidential candidates, releasing broadcasters from the requirement to ensure that all candidates receive the same amount of coverage, which meant that broadcasters could devote more coverage to the major parties’ candidates without having to accede to minor party candidates’ demands for equal air time. This was particularly important for broadcasting presidential debates, as the major parties preferred that

Chapter 4 • 1970 to 1999

the 60 or 90 minutes of air time be divided between their two candidates rather than among three or more candidates. Limitations were placed on the total amount individual federal candidates and their immediate families could contribute to their own campaigns, which were intended to level the campaign playing ﬁeld when wealthy individuals ran for ofﬁce. The maximum amounts were $50,000 for presidential and vice presidential candidates, $35,000 for senatorial candidates, and $25,000 for House candidates. Public disclosure regulations were tightened and clariﬁed. All candidates were required to submit quarterly reports during the year detailing the campaign receipts and expenditures and ﬁle reports 15 and 5 days before primary, general, and special election days. Detailed identifying information on all contributors giving more than $100 was required. Contributions in excess of $5,000 had to be reported within 48 hours. House candidates sent their reports to the Clerk of the House while Senate candidates submitted their reports to the Secretary of the Senate. Presidential candidate reports were ﬁled with the comptroller general at the GAO. President Nixon signed the act on February 7, 1972, in time for the 1972 election cycle; however, the act’s existence didn’t appear to inﬂuence the Nixon campaign’s behavior, as the country learned when the Watergate break-in and subsequent news reports of campaign irregularities were revealed.

FECA—1974 Amendments (PL 93-443) The 1972 federal elections conducted under FECA’s rules did little to slow spiraling campaign costs, especially for the broadcast media. Journalists questioned the sources and amounts of money raised by both parties, but answers weren’t immediately forthcoming. On June 17, 1972, however, a failed burglary of the Democratic Party’s ofﬁces in the Watergate building triggered a series of events—congressional hearings, special prosecutors’ investigations, and court battles—that ultimately forced President Richard M. Nixon to resign his ofﬁce on August 8, 1974. Several congressional investigations of Watergate and one by an independent prosecutor revealed unorthodox fund-raising methods employed by the Committee for the Reelection of the President (CREEP) and the millions accumulated by CREEP from just a few wealthy individuals, clearly in violation of the 1971 FECA. Widespread public anger fueled a bipartisan congressional effort to toughen FECA, and Common Cause continued its public education work, lobbying, and lawsuits against violators of existing laws to further pressure Congress. Movement to revise FECA actually began in the Senate, where liberal Democrats such as Edward “Ted” Kennedy (D, MA) argued for publicly funded federal elections and an independent body to receive, audit, and publicize candidate ﬁnancial reports and to enforce the law. The idea had been proposed in 1966 as part of the Ashmore-Goodell bill, named for Representatives Robert T. Ashmore (D, SC) and Charles Goodell (R, NY), but the bill failed to pass. Liberals had the support of organized labor. which lobbied for campaign spending limits and rules allowing more money to ﬂow through political action committees (PACs). Senator Claiborne Pell (D, RI) held hearings in the spring of 1973 on S. 3044, which contained spending and contribution limits, a federal elections commission, and provisions for limited public ﬁnancing of presidential elections. Rather than S. 3044, an alternative bill, S. 372, passed the chamber 82–8 on July 30, which

157

158

U.S. Election Campaigns

Newsmen wait in line outside the White House Press Ofﬁce, April 30, 1974, for their copies of the transcript of the White House tapes. (AP Photo/John Duricka.)

included provisions for public ﬁnancing and the elections commission but not contribution limits. Advancing S. 372 in the House was more difﬁcult, however, because opponents held critical committee chairmanships, namely, Wayne L. Hays (D, OH), House Administration Committee, and John Dent (D, PA), chair of its Elections subcommittee. Hays, in particular, was a long-standing public ﬁnancing critic, and he held the bill hostage through 1973 (Alexander 1976, 140; LaRaja 2008, 75). With several Watergate-related investigations under way, President Nixon announced in his January 30, 1974, State of the Union address that he too was submitting a reform bill, but it was received with little fanfare, as congressmen saw it as beneﬁting only the president. Pressure mounted on Hays to hold hearings on the Senate bill, which ﬁnally occurred on March 26. Meanwhile, the Senate passed, 53–32, an amended version of S. 3044 on April 11 after repeated ﬁlibusters by the Conservative Coalition. The more aggressive measure, with few weakening amendments, included public funding for all federal primary and general elections, a Federal Election Commission, and parts of S. 372. By June the Senate committee investigating Watergate had released its report, which contained many recommendations for campaign ﬁnance reform, rekindled public fury over corruption, and placed further pressure on the House to act. Representatives voted 355–48 on August 8 in favor of a less comprehensive measure, but this version did include public ﬁnancing for all federal

Chapter 4 • 1970 to 1999

primary and general elections and for presidential nomination conventions, an item that Democrats had long sought (Alexander 1976, 141; LaRaja 2008, 75–76). Differences in the House and Senate bills necessitated the formation of a conference committee in September, but disagreements over publicly ﬁnancing congressional elections slowed deliberations. To resolve the impasse, Senate conferees eliminated publicly funded congressional elections, and in return, House conferees accepted higher spending limits for congressional campaigns and the establishment of an independent agency empowered to administer and enforce the FECA’s rules. The ﬁnal version easily passed Congress on October 10 and was signed by President Ford on October 15 (LaRaja 2008, 76; Hohenstein 2007, 231–32). The 1974 FECA amendments were enacted because they generally favored Democratic interests rather than Republican, but the amendments were clearly more ambitious in scope. For example, the Federal Election Commission was established to oversee and enforce the law’s rules, including the reception and publication of candidates’ contribution and expenditure reports and public ﬁnancing of presidential elections. Of the commission’s six voting members, two were appointed by the president pro tempore of the Senate, two by the Speaker of the House, and two by the president, but all were to be conﬁrmed by a majority vote of both houses. Two ex ofﬁcio members also sat on the commission: the clerk of the House and the secretary of the Senate. Equal numbers of Democrats and Republicans were required to serve six-year terms, The Revenue Act of 1971 had already created the mechanism to collect money to supply presidential candidates; the 1974 amendments established the rules by which candidates from major and minor parties could access the Presidential Election Campaign Fund located in the Treasury Department. As deﬁned by the act a major party is one that received 25 percent or more of the popular vote in the last presidential election, while a minor party received between 5 percent and 25 percent. Participation in the fund was voluntary. Major party candidates who accepted public funds received the maximum permitted, $20 million, but only if they agreed to reject all contributions from private sources. The same rules applied to minor party candidates, except that they received an amount equal to a fraction of the total vote their party received in the previous presidential election. For a new party’s candidate, eligibility was possible if the candidate received at least 5 percent of the total national vote cast, and if the threshold was achieved, the candidate was reimbursed after the election equal to the proportion of the vote received. The law also created a system of publicly supporting presidential primary elections and party conventions. Participating candidates were required to raise at least $5,000 in contributions of $250 or less in 20 or more states. Public dollars were then matched one for one for each donation up to $250 to a maximum of $5 million. A maximum of $2 million of public money was made available to cover the major parties’ convention expenses, while minor parties could receive funds in proportion to their total votes gained in the last presidential election. The 1974 act repealed spending limits on media advertising, and in their place imposed limits on all campaign expenditures. Presidential candidates could spend no more than $10 million to secure their parties’ nomination and no more than $20 million during the general election campaign. In addition, since presidential primary elections were not used in all states, the law allowed candidates in states with primaries to spend an amount equal to twice that permitted a state’s senatorial candidates.

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All House candidates could spend up to $70,000 in primary and general elections, except those candidates from states with one representative, where the spending limit matched that of the state’s Senate candidates. Senate candidate spending limits were determined by separate formulas for primary and general elections: 80¢ multiplied by the voting age population in the last primary election or $100,000, whichever was larger; 12¢ multiplied by the voting age population in the last general election or $150,000, whichever was larger. The spending limits were tied to the Consumer Price Index, and candidates could spend an additional 20 percent beyond their ceilings on fund-raising. Individuals and organizations spending money independently of a candidate’s campaign, that is, unknown by and uncoordinated with the candidate, were limited to $1,000 per year. National party committee spending to support their candidates was limited, with ceilings of approximately $3 million for presidential candidates, $10,000 for House candidates, and $20,000, or 2¢ multiplied by a state’s voting age population in the last election, whichever was greater, for Senate candidates. Spending limits were lower for minor party candidates. The amendment’s contribution limits (see Table 5.1) were more detailed and extensive than the original FECA, reﬂecting lawmakers’ and the public’s concerns since Watergate. Reducing the inﬂuence of the wealthiest was paramount for Democrats, but they were forced to maintain the 1971 FECA limits on candidates’ personal campaign donations at Republican insistence. All cash donations over $100 were made illegal, and donations over $1,000 had to be reported within 48 hours. Oversight was assigned to the FEC. To ease its work and reduce complexity, all candidates were required to establish one campaign committee to accept contributions, spend money, and ﬁle quarterly reports with the FEC as well as reports 10 days before and 30 days after every election, plus year-end reports in nonelection years. Contributions from political committees and PACs were also capped. A small amendment offered by Senator James Buckley (R, NY) required an expedited judicial review should the act’s constitutionality be challenged, allowing Buckley and others to bring suit in federal court. The case quickly made its way before the Supreme Court, which ruled in Buckley v. Valeo (1976) (see document) that parts of the 1974 amendments were unconstitutional, and forced Congress to revisit the FECA that same year.

FECA—1976 Amendments (PL 94-283) Buckley, retired Senator Eugene McCarthy (D, MN), and the New York Civil Liberties Union initiated a civil action challenging the constitutionality of the 1974 amendments, ﬁling their suit on January 2, 1975, one day after the act became effective. Following a per curium opinion issued by the District of Columbia Circuit Court of Appeals upholding most of the act’s provisions, the Supreme Court struck down all spending limits for House and Senate candidates, limits on contributions by candidates to their own campaigns, limits on campaign expenditures made by individuals or groups acting independently of the candidates, and the method of selecting the federal election commissioners. See the Buckley v. Valeo (1976) document for a full explanation of the case. Congress initially reacted to the Court’s ruling in Buckley by trying to ﬁx the FEC’s appointment process so that the commission could function during the 1976

Table 4.1 Contribution Limits on State Party Committees State

Individuals

PAC

Corporation

Union

National Party Committee

Alabama

Unlimited

Unlimited

$500 per election to any party

Unlimited

Unlimited

Alaska

$5,000 aggregate per year to party

$1,000 aggregate per year to party

Prohibited

Prohibited

Must be state group

Arizona

Unlimited

Unlimited

Prohibited

Prohibited

Unlimited

Arkansas

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

California

$25,000 per year for purpose of making contributions for the support or defeat of candidates for elective ofﬁce; unlimited for contributions to political parties for purposes other than making contributions to state candidates

$25,000 per year for purpose of making contributions for the support or defeat of candidates for elective ofﬁce; unlimited for contributions to political parties for purposes other than making contributions to state candidates

$25,000 per year for purpose of making contributions for the support or defeat of candidates for elective ofﬁce; unlimited for contributions to political parties for purposes other than making contributions to state candidates

$25,000 per year for purpose of making contributions for the support or defeat of candidates for elective ofﬁce; unlimited for contributions to political parties for purposes other than making contributions to state candidates

$25,000 per year for purpose of making contributions for the support or defeat of candidates for elective ofﬁce; unlimited for contributions to political parties for purposes other than making contributions to state candidates

Colorado

$25,000 aggregate per year to party

$25,000 aggregate per year to party

$25,000 aggregate per year to party

$25,000 aggregate per year to party

$25,000 aggregate per year to party

Connecticut

$5,000 aggregate per year to party state central committee

Unlimited for business PAC and PAC formed by 2 or more individuals; $5,000 per year to state central committee for PAC formed by organization

Prohibited

Prohibited

Unlimited

Delaware

$20,000 per 2-year election cycle to party

$20,000 per 2-year election cycle to party

$20,000 per 2-year election cycle to party

$20,000 per 2-year election cycle to party

Unlimited

Florida

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Georgia

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Hawaii

$50,000 in any election year

$50,000 in any election year

$50,000 in any election year

$50,000 in any election year

$50,000 in any election year

Idaho

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Illinois

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Indiana

Unlimited

Unlimited

$5,000 aggregate per year to all state party committees

$5,000 aggregate per year to all state party committees

Unlimited

Iowa

Unlimited

Unlimited

Prohibited

Unlimited

Unlimited

Kansas

$15,000 per year to a state party committee

$5,000 per year to any party committee

$15,000 per year to a state party committee

$15,000 per year to a state party committee

$25,000 per year to a state party committee (Continued)

Table 4.1 Contribution Limits on State Party Committees (Continued) National Party Committee

State

Individuals

PAC

Corporation

Union

Kentucky

$2,500 per year to a state party committee and its subdivisions/afﬁliates

$2,500 per year to a state party committee and its subdivisions/afﬁliates

Prohibited

$2,500 per year to a state party committee and its subdivisions/afﬁliates

Unlimited, but transfers must be bereft of corporate funds

Louisiana

$100,000 aggregate per four years to a party committee or its subsidiaries

$100,000 aggregate per four years to a party committee or its subsidiaries

$100,000 aggregate per four years to a party committee or its subsidiaries

$100,000 aggregate per four years to a party committee or its subsidiaries

Unlimited

Maine

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Maryland

$4,000 per four years (but unlimited if directed to segregated fund to be used only for nonelectoral purposes)

$6,000 per four years (but unlimited if directed to segregated fund to be used only for nonelectoral purposes)

$4,000 per four years (but unlimited if directed to segregated fund to be used only for nonelectoral purposes)

$4,000 per four years (but unlimited if directed to segregated fund to be used only for nonelectoral purposes)

$6,000 per four years (but unlimited if directed to segregated fund to be used only for nonelectoral purposes)

Massachusetts

$5,000 per year to all committees of a party

$5,000 per year to all committees of a party

Prohibited

$15,000 aggregate or 10% of gross revenues, whichever is less, per year to all committees of a party

Unlimited for overhead and party building

Michigan

Unlimited

Unlimited

Prohibited in certain instances

Prohibited in certain instances

Unlimited

Minnesota

Unlimited

Unlimited

Prohibited

Prohibited, unless from a separate political fund

Unlimited

Mississippi

Unlimited

Unlimited

$1,000 per calendar year to a party committee

Unlimited

Unlimited

Missouri

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Montana

Unlimited

Unlimited

Prohibited

Unlimited

Unlimited

Nebraska

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Nevada

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

New Hampshire

$5,000 per election to a party committee

Unlimited

Prohibited

Prohibited

Unlimited

New Jersey

$25,000 per year to state, county, or legislative leadership committee

$25,000 per year to state, county, or legislative leadership committee

$25,000 per year to state, county, or legislative leadership committee

$25,000 per year to state, county, or legislative leadership committee

$72,000 per year to state party committee

New Mexico

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

New York

$76,500 per year to state party committee for election purposes; unlimited as to party housekeeping expenses

$76,500 per year to state party committee for election purposes; unlimited as to party housekeeping expenses

$5,000 per year to state party committee for election purposes; unlimited as to party housekeeping expenses

$76,500 per year to state party committee for election purposes; unlimited as to party housekeeping expenses

Unlimited

162

National Party Committee

State

Individuals

PAC

Corporation

Union

North Carolina

Unlimited

Unlimited

Prohibited, except independent, nonproﬁt corporation that promotes social, educational or political ideas

Prohibited

Unlimited, but must be bereft of corporate or union funds

North Dakota

Unlimited

Unlimited

Prohibited

Prohibited

Unlimited

Ohio

$16,000 to state political party for party’s state candidate fund in calendar year

$16,000 to state political party for party’s state candidate fund in calendar year

Prohibited

Prohibited

Unlimited

Oklahoma

$5,000 aggregate per year from individual or family to all afﬁliated party committees

$5,000 aggregate per year to all afﬁliated party committees

Prohibited

$5,000 aggregate per year to all afﬁliated party committees

Unlimited, but funds must comply with state limits

Oregon

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Pennsylvania

Unlimited

Unlimited

Prohibited

Prohibited

Unlimited

Rhode Island

$1,000 per year to a party committee; $10,000 aggregate per year to all party committees for organizational or party-building activities

$1,000 per year to a party committee; $10,000 aggregate per year to all party committees for organizational or party-building activities

Prohibited

Prohibited

Unlimited, but may not be spent on behalf of state candidates

South Carolina

$3,500 per year to a party committee; unlimited to a party operating account

$3,500 per year to a party committee; unlimited to a party operating account

$3,500 per year to a party committee; unlimited to a party operating account

$3,500 per year to a party committee; unlimited to a party operating account

$3,500 per year to a party committee; unlimited to a party operating account

South Dakota

$3,000 per year to any political party

Unlimited

Prohibited

Prohibited

Unlimited

Tennessee

Unlimited

Unlimited

Prohibited

Unlimited

Unlimted, but must be bereft of corporate funds

Texas

Unlimited

Unlimited

Prohibited for election purposes; unlimited for administrative purposes

Prohibited for election purposes; unlimited for administrative purposes

Unlimited

Utah

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited

Vermont

$2,000 in 2-year general cycle from one source to political party

$2,000 in 2-year general cycle from one source to political party

$2,000 in 2-year general cycle from one source to political party

$2,000 in 2-year general cycle from one source to political party

$2,000 in 2-year general cycle from one source to political party

Virginia

Unlimited

Unlimited

Unlimited

Unlimited

Unlimited (Continued)

163

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U.S. Election Campaigns

Table 4.1 Contribution Limits on State Party Committees (Continued) State

Individuals

PAC

Corporation

Union

National Party Committee

Washington

Unlimited

$3,200 per year to a party committee for election purposes; unlimited if used for administrative expenses and certain noncandidate-related purposes

$3,200 per year to a party committee for election purposes; unlimited if used for administrative expenses and certain noncandidate-related purposes

$3,200 per year to a party committee for election purposes; unlimited if used for administrative expenses and certain noncandidate-related purposes

$3,200 per year to a party committee for election purposes; unlimited if used for administrative expenses and certain noncandidate-related purposes

West Virginia

$1,000 per year to a state party or legislative caucus committee

$1,000 per year to a state party or legislative caucus committee

Prohibited

$1,000 per year to a state party or legislative caucus committee

$50,000 per year to a state party executive committee or state party legislative caucus political committee

Wisconsin

$10,000 aggregate per year to all political committiees

$6,000 per year to a political party

Prohibited

Prohibited

Unlimited

Wyoming

$25,000 aggregate in 2-year period of general election year and the preceding year

Unlimited

Prohibited

Prohibited

Unlimited

© 2008, The Center for Public Integrity. Source: Campaign Finance Law 2002, Federal Election Commission.

presidential election. The Court had given Congress 30 days to act, but partisan differences stalled the bill. Congress requested and received a 20-day extension, but still could not resolve its internal differences, and on March 22, 1976, the FEC ceased to function as an enforcement agency. President Ford demanded that Congress move quickly to pass a law addressing the speciﬁc provisions that the Court had determined to be unconstitutional. Congressional Democrats, however, might have impeded the bill’s movement to improve their candidates’ odds for winning that year’s elections. Congress eventually considered a bill that repaired the provisions declared unconstitutional by the Court, while also strengthening and clarifying remaining sections to salvage what remained of the FECA. One example of the latter was an amendment to correct an FEC advisory opinion, AO 197523, in the matter of SunPAC. The Sun Oil Company had formed a political action committee called SunPAC. A PAC is created for the sole purpose of raising and spending money to elect or defeat candidates favored or opposed by the entity that created the PAC. Sun Oil asked the FEC whether it was permissible for SunPAC to solicit contributions from its hourly workers as well as its salaried employees and stockholders. In November 1975 by a 4–2 vote, with one Democrat, Neil O. Staebler (MI), joining all three Republicans, the FEC held that the PAC could solicit its hourly employees. Congressional Democrats were furious with the FEC’s advisory opinion, because it gave corporate PACs

Chapter 4 • 1970 to 1999

165

Former special prosecutor Archibald Cox, Mrs. Cox, Sen. Hugh Scott (R, PA), and Sen. Edward Kennedy (D, MA) enter the Supreme Court in Washington on November 10, 1975, to hear arguments on the Federal Election Campaign Act of 1974. (AP Photo.)

access to more money from workers who could conceivably be coerced by their employers into donating. Democrats sought to include language in the 1976 amendments to undo the FEC opinion (Mutch 1988, 166–70). Under the 1976 amendments, the president was assigned the sole power to appoint federal election commissioners, subject to Senate conﬁrmation. Congress also gave the FEC additional authority to prosecute criminal as well as civil infractions of FECA. But the FEC’s ability to issue advisory opinions was trimmed, a consequence of its SunPAC ruling. The amendments required that four FEC members vote to issue advisory opinions and to initiate civil litigation. Moreover, an advisory opinion was applicable only to the facts of a speciﬁc case, and Congress gave itself power to reject new FEC rules before they could be enforced. Congress reinforced FECA’s disclosure requirements for independent expenditures, because the Supreme Court declared limits on independent spending unconstitutional. The 1976 amendments required that all individuals and political committees advocating the election or defeat of a candidate and spending more than $100 independently of the candidate, that is, not coordinating campaign activities with a candidate, ﬁle a report with the FEC. An independent expenditure of more than $1,000 that occurred within 15 days of an election was to be reported to the FEC within 24 hours. All reports were to be accompanied by a declaration by the individual or political committee that the spending had indeed occurred without the candidate’s

166

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complicity. Corporations, labor unions, and other membership organizations were required to submit reports to their membership or stockholders if they spent more than $2,000 in an election supporting or opposing a candidate. This provision was intended to allow stockholders and members to police their own organizations’ political activities by providing them with information. The Buckley decision eliminated caps on candidates’ and their immediate families’ donations to their own campaigns, except for presidential candidates who participated in the public funding system. The 1976 amendments included a $50,000 limit on all personal donations made by presidential and vice presidential candidates who agreed to accept public money. Contribution limits were adjusted for individuals and PACs (see Table 5.1), and the rules under which PAC contributions were counted were changed to correct for a disturbing trend. Businesses and unions formed multiple PACs, which under the 1974 law allowed each PAC to contribute $5,000. If a business created four PACs, the business could contribute $20,000. Under the 1976 amendments, all PACs formed by a corporation or a union were to have their contributions aggregated and the total contribution was used to determine whether the contribution ceiling was exceeded. Finally, new limits were established for the Democratic and Republican senatorial campaign committees of $17,500 per federal candidate per year. The rules for receiving support from the Presidential Election Campaign Fund were revised to force losing candidates out of a presidential race by requiring presidential candidates to gain at least 10 percent of the vote in two consecutive primary elections in which they ran. If a candidate failed to attain the minimum vote, that candidate was denied matching funds; however, if the candidate gained at least 20 percent of the vote in a subsequent primary, matching funds were restored. Finally, all presidential candidates withdrawing from the primaries entirely were required to return any unexpended public campaign funds to the U.S. Treasury.

FECA—1979 Amendments (PL 96-187) Implementing the 1976 amendments resulted in calls by both parties for further revisions to the FECA. In the 1976 elections, Democrats successfully elected Jimmy Carter to the White House and maintained control of Congress, yet they were intent on crafting campaign rules that would preserve their advantage over a Republican Party still suffering from Watergate’s stain. But the GOP selected William E. Brock III as its national party chairman in 1977, and he acted quickly to refurbish the party’s identity and its ability to raise funds. He computerized the party’s membership list, merging the GOP membership list with those of other organizations holding compatible values, and conducted direct mail solicitations for contributions. His methods brought the party back to respectability and ﬁnancial solvency in two years and left the Democrats struggling to update their own fund-raising tools. With the support of the new president and many new liberal Democrats in Congress, Senator Dick Clark (D, IA) introduced a bill to establish a public funding system for Senate general elections comparable to the presidential system. S. 926 found support among Democrats, but liberal Republicans such as Lowell Weicker (R, CT) and Mark Hatﬁeld (R, OR) spoke against the measure. The only Republican to endorse the bill was Senator

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Table 4.2 Growth in the Number and Type of PACs Year

Corporate

Labor

Trade/Health

1972 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

89 139 433 550 785 950 1,206 1,329 1,469 1,538 1,682 1,710 1,744 1,775 1,816 1,796 1,795 1,738 1,735 1,789 1,660 1,674 1,642 1,597 1,567 1,540 1,523 1,525 1,514 1,534 1,555 1,646 1,621 1,586 1,551 1,598

201 226 224 234 217 240 297 318 380 378 394 388 384 364 354 349 346 338 347 337 333 334 332 332 321 318 316 314 313 320 303 302 283 273 264 272

318 357 489 438 453 514 576 614 649 643 698 695 745 865 786 777 774 742 770 761 792 815 838 825 821 826 812 872 882 902 877 936 935 926 962 995

Nonconnected 0 0 0 110 162 247 374 531 723 793 1,053 1,003 1,077 957 1,115 1,060 1,062 1,083 1,145 1,121 980 1,020 1,103 931 935 941 902 1,007 1,006 1,040 1,174 1,267 1,233 1,247 1,328 1,594

Cooperative 0 0 0 8 12 17 42 42 47 51 52 54 56 59 59 59 59 57 56 56 53 44 41 42 39 38 39 41 40 39 34 37 40 37 49 49

Corps. w/out stocks 0 0 0 20 24 32 56 68 103 122 130 142 151 145 138 137 136 136 142 146 136 129 123 117 115 115 114 118 110 110 97 103 105 99 97 103

Source: Brandenberger, Mary (2009, March 9). Number of Federal PACs Increases. Federal Election Commission, http://www.fec.gov/press/ press2009/20090309PACcount.shtml.

Charles McC. Mathias (R, MD). Senator Robert Packwood (R, OR) proposed an amendment increasing tax credits for political contributions rather than adopting public ﬁnancing. Republicans and southern Democrats joined forces to ﬁlibuster S. 926, killing the bill (Mutch 1988, 131–32; see also Kolodny 1998). In the spring of 1978, House Democrats brought a bill to reduce spending and contribution ceilings for political parties and PACs, which Republicans immediately identiﬁed as an anti-Republican measure. Democrats indicated that they were willing to negotiate changes to the bill in return for public ﬁnancing, but the offer was rejected by Republican leaders. The bill died without coming to a ﬂoor vote when southern Democrats joined Republicans in opposing the public ﬁnancing provisions. Democrats tried again to pass a public ﬁnance bill when H.R. 1 was introduced on January 15, 1979, but the bill never made it out of the Administration Committee (Mutch 1988, 132–33).

Total 113 608 722 1,146 1,360 1,653 2,000 2,551 2,901 3,371 3,525 4,009 3,992 4,157 4,165 4,268 4,178 4,172 4,094 4,195 4,210 3,954 4,016 4,079 3,844 3,798 3,778 3,706 3,877 3,865 3,945 4,040 4,291 4,217 4,168 4,251 4,611

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Other complaints about the 1976 FECA amendments came from state and local parties, which found DID YOU KNOW? that the new rules severely handicapped their ability to raise and spend money, especially during presidential elections. They were concerned about their continued Watergate’s Impact on Campaign Finance relevance and vitality in the new environment, and Reform several state party committees requested advisory opinThe Watergate scandal had a profound impact on Amerions from the FEC on the legality of using money raised ica’s political system, leading to a constitutional crisis at the state level for party building and grassroots poand presidential impeachment, and on its psyche, adding litical activities for state elections that took place conWatergate to our dictionaries to describe political corcurrently with federal elections. Party building refers to ruption and presidential abuse of power. The revelations projects like voter registration and get-out-the-vote of political dirty tricks, large cash campaign donations, drives, while grassroots activities include distributing and a cover-up of criminal behavior by the president and his advisors galvanized the public’s attention, as they candidate’s lawn signs, buttons, and handouts at voting watched the three branches of government struggle to precincts. maintain proper balance of power among themselves as A bill ﬁnally cleared Congress on December 20, the Constitution’s Framers had intended. Though our gov1979, with bipartisan cosponsors—Representatives ernmental system successfully weathered the crisis, it left Frank Thompson Jr. (D, NJ) and Bill Frenzel (R, MI) public conﬁdence in government shaken. On June 17, and Senators Claiborne Pell (D, RI) and Mark O. Hat1972, the Democratic National Committee ofﬁce in the Watergate complex was burglarized. Subsequently, reﬁeld (R, OR)—that addressed many of the less contenporters uncovered the links between the burglars, the tious issues of the amended FECA, including federal Committee for the Reelection of the President (CREEP), candidates’ complaints about the complexity and freand the White House, but the full story was not revealed quency of the FEC reports they were required to ﬁle. before Nixon’s reelection in November. The Senate Despite some misgivings about the law, namely, its secvoted to establish the Select Committee on Presidential tion banning federal employees from contributing to Campaign Activities, also known as the Ervin committee for its chair, Sam Ervin (D, NC). Its hearings over the campaigns of their elected supervisors, President 16 months took testimony from White House and CREEP Carter signed it on January 8, 1980. staff. The committee’s report, released on June 27, 1974, The act revised the FEC’s processes for issuing adincluded recommendations covering many subjects, but visory opinions and simpliﬁed the commission’s regmost dealing with campaign ﬁnance found their way ulatory and enforcement mechanisms. It simpliﬁed into the 1974 FECA amendments. The report’s recomreporting requirements by reducing the total number of mendations on preventing the presidency from engaging in illegal political activities to raise campaign funds, reports in a two-year period for presidential and House creating a Federal Election Commission, and banning candidates from 24 to 9 and for Senate candidates from contributions from corporations having ﬁnancial deal28 to 17 over a six-year period; dropping the reporting ings with the federal government were included. The requirement entirely for federal candidates raising and report also had recommendations for forbidding cash spending less than $5,000 and for local party commitcontributions, requiring presidential and vice presidentees raising less than $5,000 per year or spending less tial candidates to have only one campaign committee to handle contributions and expenditures, restricting total than $1,000 per year on federal elections or spending campaign expenditures in presidential campaigns, less than $5,000 per year on party building and grassroots activities; and raising the minimum contribution and expenditure requirement for ﬁling a report with the FEC from $100 to $200 for a federal candidate and from $100 to $500 for individuals and organizations spending independently of candidates. To satisfy the pleas from state and local parties, the law removed all spending limits on them for grassroots activities, if the funds raised for such activities were not given to aid speciﬁc candidates. Moreover, unlimited spending for party-building work was permitted but only to support their parties’ presidential nominees. This new unlimited spending was not counted against the national parties’ contributions

Chapter 4 • 1970 to 1999

to individual candidates. The intent was to strengthen state and local parties and give them greater relevance DID YOU KNOW? during federal elections. The act increased from $2 million to $3 million the amount available to the national parties to support limiting individual campaign donations, banning contheir nominating conventions. tributions from foreign nationals, and creating stringent limitations on organizations’ donations to presidential Sections 602 and 603, which President Carter criticampaigns. The committee explicitly recommended cized, made it illegal for elected federal ofﬁcials to soagainst publicly funding federal elections, which Conlicit contributions from their employees or any other gress ignored. Watergate’s legacy for campaign tactics federal employee (the latter was already covered under and ﬁnance is clear, but its impact on the next generation the Tillman Act) and for federal employees to make any of America’s political leaders was less obvious. Most feddonation to their elected employers even in the absence eral and state candidates sought to conduct scrupulously clean fund-raising operations under the new laws passed of solicitation. in the scandal’s wake. But loopholes were discovered, One of the act’s provisions that provoked bitter dewhich some candidates exploited, including President bate in conference committee dealt with the use of unBill Clinton during his 1996 reelection campaign. expended congressional campaign funds. House rules Further Reading had allowed its incumbent members to spend surplus campaign funds on personal matters but forbade retired Bernstein, Carl, and Bob Woodward. 1974. All the President’s Men. New York: Simon & Schuster. members from doing so, while Senate rules banned both Ben-Veniste, Richard, and George Frampton Jr. 1977. incumbents and retired members from spending excess Stonewall. New York: Simon & Schuster. campaign funds on personal matters. The act struck a Ervin, Sam J., Jr. 1980. The Whole Truth. New York: compromise: all federal candidates or ofﬁceholders were Random House. Kurland, Philip B. 1978. Watergate and the Constitution. forbidden to spend surplus campaign funds for personal Chicago: University of Chicago Press. use, except for incumbents serving in Congress at the Kutler, Stanley I. 1990. The Wars of Watergate. New time of the act’s passage. In 1995 the FEC issued an York: Norton. opinion eliminating the exemption. Kutler, Stanley I. 1997. Abuse of Power. New York: Simon & Schuster. Congress passed minor amendments to the FECA many LaRue, L. H. 1988. Political Discourse: A Case Study times until 2002, when the Bipartisan Campaign Reform of the Watergate Affair. Atlanta: University of Act (BCRA) was passed (see document) to deal with FEGeorgia Press. Saffell, David C., ed. 1974. Watergate: Its Effects on CA’s many unintended consequences, among them the the American Political System. Cambridge, MA: proliferation of PACs as a way to avoid contribution and Winthrop. spending limits; PAC contributors’ anonymity, which cirSenate Select Committee on Presidential Campaign Accumvented disclosure rules; the meteoric increase in intivities. 1974. The Senate Watergate Report. New York: Dell. dependent expenditures for advocacy advertising; and Wicker, Tom. 1991. One of Us. New York: Random the use of soft money. Contributions made and spent by House. state and local parties for party-building and grassroots activities came to be called soft money, as opposed to hard money, which referred to contributions and expenditures regulated by the FECA. The FEC also issued advisory opinions allowing national party committee to raise and spend without limits for party building so long as the activities were independent of their federal candidates’ campaigns, but these opinions opened the soft money loophole even wider. By 2002 the public and many congressmembers were ready to tackle campaign ﬁnance reform in a comprehensive fashion.

FURTHER READING Alexander, Herbert. 1992. Financing Politics: Money, Elections and Political Reform, 4th ed. Washington, DC: Congressional Quarterly Press.

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“I’ve decided not to tell you about the alleged shipwreck,” Paul Szep, Boston Globe, July 11, 1973. (Caroline & Erwin Swann Collection of Caricature and Cartoons, Library of Congress, Prints and Photographs Division, LC-USZ62–84957.)

Hohenstein, Kurt. 2007. Coining Corruption: The Making of the American Campaign Finance System. DeKalb: Northern Illinois University Press. Kolodny, Robin. 1998. Pursuing Majorities: Congressional Campaign Committees in American Politics. Norman: University of Oklahoma Press. LaRaja, Raymond J. 2008. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press. McFarland, Andrew S. 1984. Common Cause: Lobbying in the Public Interest. Chatham, NJ: Chatham House. Mutch, Robert E. 1988. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law. New York: Praeger.

• Document: White v. Regester, 412 U.S. 755 (1973) • Date: Decided June 18, 1973 • Signiﬁcance: In White v. Regester, a Texas case, the U.S. Supreme Court addressed the legal parameters of population deviations in state legislative districts. It was decided concurrently with Gaffney v. Cummings from Connecticut. In Reynolds v. Sims (1964), the Court ruled that population must be the “controlling criterion” in determining the constitutionality of state legislative districts, but in both Gaffney and White, the justices ruled that population deviations under 10 percent do not provide a prima facie case of intentional discrimination and, therefore, did not result in an Equal Protection Clause violation.

DOCUMENT White v. Regester, 412 U.S. 755 (1973) Justice White delivered the opinion of the Court in Parts I, III, and IV, of which all Members joined, and in Part II, of which Chief Justice Burger and Justices Stewart, Blackmun, Powell, and Rehnquist joined This case raises two questions concerning the validity of the reapportionment plan for the Texas House of Representatives adopted in 1970 by the State Legislative Redistricting Board: First, whether there were unconstitutionally large variations in population among the districts deﬁned by the plan; second, whether the multimember districts provided for Bexar and Dallas Counties were properly found to have been invidiously discriminatory against cognizable racial or ethnic groups in those counties. The Texas Constitution requires the state legislature to reapportion the House and Senate at its ﬁrst regular session following the decennial census. In 1970, the 171

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legislature proceeded to reapportion the House of Representatives but failed to agree on a redistricting plan for the Senate. Litigation was immediately commenced in state court challenging the constitutionality of the House reapportionment. The Texas Supreme Court held that the legislature’s plan for the House violated the Texas Constitution. . . . Meanwhile, pursuant to the requirements of the Texas Constitution, a Legislative Redistricting Board had been formed to begin the task of redistricting the Texas Senate. Although the Board initially conﬁned its work to the reapportionment of the Senate, it was eventually ordered, in light of the judicial invalidation of the House plan, to also reapportion the House. . . . . . . Four lawsuits, eventually consolidated, were ﬁled challenging the Board’s Senate and House plans and asserting with respect to the House plan that it contained impermissible deviations from population equality and that its multimember districts for Bexar County and Dallas County operated to dilute the voting strength of racial and ethnic minorities. . . .

II The reapportionment plan for the Texas House of Representatives provides for 150 representatives to be selected from 79 single-member and 11 multimember districts. The ideal district is 74,645 persons. The districts range from 71,597 to 78,943 in population per representative, or from 5.8% overrepresentation to 4.1% underrepresentation. The total variation between the largest and smallest district is thus 9.9%. . . . The District Court’s ultimate conclusion was that “the apportionment plan for the State of Texas is unconstitutional as unjustiﬁably remote from the ideal of ‘one man, one vote,’ and that the multi-member districting schemes for the House of Representatives as they relate speciﬁcally to Dallas and to Bexar Counties are unconstitutional in that they dilute the votes of racial minorities.” Id., at 735. Insofar as the District Court’s judgment rested on the conclusion that the population differential of 9.9% from the ideal district between District 3 and District 85 made out a prima facie equal protection violation under the Fourteenth Amendment, absent special justiﬁcation, the court was in error. It is plain from Mahan v. Howell, 410 U.S. 315 (1973), and Gaffney v. Cummings, that state reapportionment statutes are not subject to the same strict standards applicable to reapportionment of congressional seats. . . . For the reasons set out in Gaffney v. Cummings, we do not consider relatively minor population deviations among state legislative districts to substantially dilute the weight of individual votes in the larger districts so as to deprive individuals in these districts of fair and effective representation. Those reasons are as applicable to Texas as they are to Connecticut; and we cannot glean an equal protection violation from the single fact that two legislative districts in Texas differ from one another by as much as 9.9%, when compared to the ideal district. Very likely, larger differences between districts would not be tolerable without justiﬁcation “based on legitimate considerations incident to the effectuation of a rational state policy,” Reynolds v. Sims, 377 U.S., at 579, . . . but here we are conﬁdent that appellees failed to carry their burden of proof insofar as they sought to establish a violation of the Equal Protection Clause from population variations alone. The total variation between two districts was 9.9%, but the average deviation of all House districts from the ideal was 1.82%. Only 23 districts, all single-member, were overrepresented or underrepresented by more than 3%, and only three of those districts by more than

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5%. We are unable to conclude from these deviations alone that appellees satisﬁed the threshold requirement of proving a prima facie case of invidious discrimination under the Equal Protection Clause. Because the District Court had a contrary view, its judgment must be reversed in this respect.

III We afﬁrm the District Court’s judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. . . . But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups (emphasis added). . . . To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support ﬁndings that the political processes leading to nomination and election were not equally open to participation by the group in question— that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. . . .

IV The same is true of the order requiring disestablishment of the multimember district in Bexar County. Consistently with Hernandez v. Texas, 347 U.S. 475 (1954), the District Court considered the Mexican-Americans in Bexar County to be an identiﬁable class for Fourteenth Amendment purposes and proceeded to inquire whether the impact of the multimember district on this group constituted invidious discrimination. Surveying the historic and present condition of the Bexar County MexicanAmerican community, which is concentrated for the most part on the west side of the city of San Antonio, the court observed, based upon prior cases and the record before it, that the Bexar community, along with other Mexican-Americans in Texas, had long “suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the ﬁelds of education, employment, economics, health, politics and others.” 343 F. Supp., at 728. . . . On the record before us, we are not inclined to overturn these ﬁndings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise. Afﬁrmed in part, reversed in part, and remanded.

ANALYSIS In Reynolds v. Sims (1964), the Supreme Court revolutionized electoral rules by declaring that states violated the 14th Amendment’s Equal Protection Clause when their legislative districts were grossly disproportionate in population. Writing for the Court, Chief Justice Warren famously declared that “legislators represent people,

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not trees or acres,” which led the justices to conclude that “the weight of a citizen’s vote cannot be made to depend on where he lives.” However, rather than provide a mathematical formula for states to follow in reapportioning their legislative districts, Chief Justice Warren wrote that population needed to be the “controlling criterion” in determining whether states’ legislative apportionment schemes were discriminatory. Left unclear was how much population variation among legislative districts the Court would permit. In White v. Regester (1973), and the concurrently decided Gaffney v. Cummings (1973), the issue was whether the population variation among state legislative districts (as opposed to congressional districts) in Texas and Connecticut, respectively, was permissible. In Connecticut (Gaffney), the total maximum deviation (calculated by adding the values of the largest positive deviation and the largest negative deviation) in the proposed senatorial districts was 1.81 percent, but the total maximum deviation in the proposed House single-member districts was 7.83 percent. In Texas (White), the total maximum deviation in its House of Representatives districts was 9.9 percent. A six-member majority of the Court ruled in both cases that the states’ legislative district population deviations did not amount to invidious discrimination prohibited by the Equal Protection Clause. While the Court could have ruled, as it did in Mahan v. Howell (1973), that the population differences were justiﬁed given the states’ other competing and compelling interests (for example, keeping towns and other political subdivisions intact), the majority simply ruled that the deviations alone did not present a prima facie case of Equal Protection Clause violation. Joined by Justices Douglas and Marshall, Justice Brennan dissented and vehemently protested the Court’s conclusion that some state legislative district population deviations are simply too small to invoke constitutional problems. Gaffney and White seem to indicate that the magic threshold beyond which a deviation is unequal is 10 percent. The second issue in White v. Regester involved the state Redistricting Board’s plan to create 11 multimember districts in Dallas and Bexar counties, in addition to the 79 single-member districts. Racial and ethnic minorities in the two counties sued, alleging that the multimember districts made it virtually impossible for the minority groups to elect one of their own to ofﬁce. The district court agreed with their claims, and a unanimous Supreme Court voted to uphold the lower court’s ﬁndings. However, what was most notable was that the Supreme Court introduced a standard for determining the legality of multimember districts, namely a totality of the circumstances approach, in order to determine whether “multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups” (emphasis added). Until 1980, when the Court in City of Mobile v. Bolden, 446 U.S. 55, decided that challenges to representational systems must demonstrate that the systems were “intentionally discriminatory,” the White v. Regester standard resulted in many local electoral systems being declared unconstitutional. In the White case, the Court concluded that, because of Texas’s past handling of black and Mexican American franchise issues, multimember districts for the state house of representatives only “enhanced the opportunity for racial discrimination,” because minority votes and voices were diluted under such a system. The Court’s reapportionment cases have had a profound impact on elections, because reapportionment determines who votes in each state or federal legislative district. In Baker v. Carr (1962), the Court decided that legal challenges to how states

Chapter 4 • 1970 to 1999

apportion their legislative seats were justiciable, meaning that courts could try to resolve the disputes. To provide further clariﬁcation for the states and courts, the Supreme Court concluded in Reynolds v. Sims (1964) and Wesberry v. Sanders (1964) that state legislative districts and congressional districts each needed to be “roughly equal” in population. Since Reynolds and Wesberry, the lower courts were struggling with how to deﬁne “roughly equal.” In Kirkpatrick v. Preisler, 394 U.S. 526 (1969) and White v. Rockefeller, 376 U.S. 52 (1969), the Court concluded that article I, section 2, of the U.S. Constitution permits only “limited population variances” for congressional districts. In those two cases, the Court did not permit total maximum deviations of 5.97 percent and 13.1 percent, respectively. However, in White and Gaffney the Court ruled that the U.S. Constitution did not provide a similar standard for state legislative districts and that total maximum population variances of slightly less than 10 percent were permissible.

175

• Document: Cousins v. Wigoda, 419 U.S. 477 (1975) • Date: Decided January 15, 1975 • Signiﬁcance: In 1972 a dispute between the National Democratic Party and the Illinois Democratic Party erupted when two possible slates of delegates came forward to represent Chicago at the national party convention. The U.S. Supreme Court ruled that the National Democratic Party’s slate of delegates deserved to be seated.

DOCUMENT Cousins v. Wigoda, 419 U.S. 477 (1975) Justice Brennan delivered the opinion of the Court At the March 1972 Illinois primary election, Chicago’s Democratic voters elected the 59 respondents (Wigoda delegates) as delegates to the 1972 Democratic National Convention to be held in July 1972 in Miami. Fla. Some of the 59 petitioners (Cousins delegates) challenged the seating of the Wigoda delegates before the Credentials Committee of the National Democratic Party on the ground, among others, that the slate-making procedures under which the Wigoda delegates were selected violated Party guidelines incorporated in the Call of the Convention. On June 30, 1972, the Credentials Committee sustained the Findings and Report of a Hearing Ofﬁcer that the Wigoda delegates had been chosen in violation of the guidelines, and also adopted the Hearing Ofﬁcer’s recommendation that the Wigoda delegates be unseated and the Cousins delegates (who had been chosen in June at private caucuses in Chicago) be seated in their stead. On July 8, 1972, two days before the Convention opened, the Wigoda delegates obtained from the Circuit Court of Cook County, Ill., an injunction that enjoined each of the 59 petitioners “from acting or purporting to act as a delegate to the Democratic National Convention . . . [and] from performing the functions of delegates . . . [and] 176

Chapter 4 • 1970 to 1999

from receiving or accepting any credentials, badges or other indicia of delegate status. . . . ” Nevertheless when the Convention on July 10 adopted the Credentials Committee’s recommendation and seated the Cousins delegates, they took their seats and participated fully as delegates throughout the Convention. . . . The Illinois Appellate Court afﬁrmed the injunction . . . and the Supreme Court of Illinois . . . denied leave to appeal. . . . We reverse. . . .

II The National Democratic Party and its adherents enjoy a constitutionally protected right of political association. “There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments. . . . The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.” Kusper v. Pontikes (1973). “And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.” Williams v. Rhodes (1968). Moreover, “[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” Sweezy v. New Hampshire (1957). Petitioners rely upon these principles and contend that, since the July 8 Circuit Court injunction was fashioned to effectuate state law by barring them from serving as delegates at their Party’s National Convention, the injunction constituted an unconstitutional “signiﬁcant interference” with protected rights of political association. Bates v. Little Rock (1960). The Illinois Appellate Court conceded that petitioners and the Party enjoyed “fundamental constitutional rights of free political association.” The Appellate Court justiﬁed the injunction, however, on the ground that the “interest of the state in protecting the effective right to participate in primaries is superior to whatever other interests the party itself might wish to protect.” In other words, the Appellate Court identiﬁed as the State’s legitimate interest the protection of votes cast at the primary from the impairment that would result from stripping the respondents of their elected-delegate status. We observe at the outset that petitioners’ compliance with the injunction would not have assured effectuation of the state objective to seat respondents at the Convention. The Convention was under no obligation to seat the respondents but was free, as respondents concede, to leave the Chicago seats vacant and thus defeat the objective. We proceed, however, to considering whether the asserted state interest justiﬁes the injunction. Even though legitimate, the “ ‘subordinating interest of the State must be compelling’ . . . ” to justify the injunction’s abridgment of the exercise by petitioners and the National Democratic Party of their constitutionally protected rights of association. NAACP v. Alabama (1958). Respondents argue that Illinois had a compelling interest in protecting the integrity of its electoral processes and the right of its citizens under the State and Federal Constitutions to effective suffrage. They rely on the numerous statements of this Court that the right to vote is a “fundamental political right, because preservative of all rights.” Yick Wo v. Hopkins (1886). . . . But respondents overlook the signiﬁcant fact that the suffrage was exercised at the primary election to elect

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delegates to a National Party Convention. Consideration of the special function of delegates to such a Convention militates persuasively against the conclusion that the asserted interest constitutes a compelling state interest. Delegates perform a task of supreme importance to every citizen of the Nation regardless of their State of residence. The vital business of the Convention is the nomination of the Party’s candidates for the ofﬁces of President and Vice President of the United States. To that end, the state political parties are “afﬁliated with a national party through acceptance of the national call to send state delegates to the national convention.” Ray v. Blair (1952). The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. If the qualiﬁcations and eligibility of delegates to National Political Party Conventions were left to state law “each of the ﬁfty states could establish the qualiﬁcations of its delegates to the various party conventions without regard to party policy, an obviously intolerable result.” Wigoda v. Cousins, 342 F. Supp. 82, 86 (ND Ill. 1972). Such a regime could seriously undercut or indeed destroy the effectiveness of the National Party Convention as a concerted enterprise engaged in the vital process of choosing Presidential and Vice-Presidential candidates—a process which usually involves coalitions cutting across state lines. The Convention serves the pervasive national interest in the selection of candidates for national ofﬁce, and this national interest is greater than any interest of an individual State. . . . Thus, Illinois’ interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention. Whatever the case of actions presenting claims that the Party’s delegate selection procedures are not exercised within the conﬁnes of the Constitution— and no such claims are made here—this is a case where “the convention itself [was] the proper forum for determining intra-party disputes as to which delegates [should] be seated.” O’Brien v. Brown (1972). Reversed.

ANALYSIS Cousins v. Wigoda (1975) concerned a major disagreement between the Illinois Democratic Party and the National Democratic Committee over the seating of delegates to the 1972 convention in Miami and required the U.S. Supreme Court to declare which party organization’s interests were controlling. This case is perhaps best known for the Court’s ﬁnding that political parties are private organizations that enjoy protection under the First Amendment’s freedom of association. This dispute originated in March 1972, when Illinois held its primary election and the Wigoda slate of delegates was elected to represent Chicago’s districts at the 1972 Democratic National Convention. However, another slate of delegates—the Cousins delegates—challenged the seating of the Wigoda delegation with the National Democratic Party’s Credentials Committee on the grounds that the procedures under which the Wigoda delegates were selected violated party guidelines. The Credentials Committee agreed with the Cousins delegates and recommended that the Wigoda delegates be stripped of their convention seats. The Wigoda delegates obtained an injunction two days before the convention to keep each slate of delegates from being seated. Nevertheless, the Cousins delegation

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was seated and performed its duties. The Illinois Appellate Court and the supreme court of Illinois, however, agreed with the Wigoda delegates on the basis of the Illinois Elections Code rather than the party’s rules to determine which delegation should represent Illinois at the convention. The Cousins delegation appealed, and the Supreme Court, by an 8–1 vote, sided with Cousins and the national party over Wigoda and Illinois. Writing for the majority, Justice Brennan started with the broad pronouncement that “the National Democratic Party and its adherents enjoy a constitutionally protected right of political association.” Applying this principle to the situation at hand, Justice Brennan declared that the party’s freedom to associate with delegates of its own choosing superseded Illinois’s stated interest in “protecting the integrity of its electoral process and the right of the citizens . . . to effective suffrage.” The Court found the state’s interest lacking since states participate in primaries not because of a constitutional mandate but only because the parties invited them to do so. The parties’ interest in securing a nomination at a convention (or primary) chosen by delegates or voters that the party desired to associate with overrode state efforts to expand the electorate or, in this case, to seat a slate of delegates not endorsed by the national party. Cousins v. Wigoda (1975) is an important decision, because the Court began to adjust the legal rights that parties hold against states in deciding how their nominees are chosen, whether by conventions or primaries. The Court used the First Amendment’s freedom of association to protect the national party from state election laws that the party deemed to contravene its wishes and identity. The Court could have extended the logic of the so-called White Primary cases, Smith v. Allwright (1944) and Terry v. Adams (1953), and ruled that, because the parties’ nominees will appear on the state-generated ballot in the general election, the parties must abide by all reasonable election laws. However, the Court did not base its decision on the reasonableness of the state election law but rather on the broad freedom of association principle, introducing the novel idea that parties have rights against states for violating their associational freedoms.

FURTHER READING Rotunda, Ronald D. 1975. “Constitutional and Statutory Restrictions on Political Parties in the Wake of Cousins v. Wigoda.” Texas Law Review 53: 935.

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Source: Brandenberger, Mary. 2009, March 9. Number of Federal PACs Increases. Federal Election Commission Home Page. http://www.fec.gov/press/press2009/20090309PACcount.shtml

• Document: Buckley v. Valeo, 424 U.S. 1 (1976) • Date: Decided January 30, 1976 • Signiﬁcance: In this leading campaign ﬁnance decision, the Supreme Court upheld most of the provisions of the 1974 FECA amendments (see document). Speciﬁcally, the Court upheld the act’s campaign contribution limits, various disclosure and reporting requirements, and the public ﬁnancing of presidential elections. The Court struck down the act’s campaign expenditure limits as well as the method of ﬁlling positions on the Federal Election Commission. Though faced with criticism from all sides, Buckley remains the basic legal framework for campaign ﬁnance laws.

DOCUMENT Buckley v. Valeo, 424 U.S. 1 (1976) Per curiam: 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. 180

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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 overall 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. . . . In this Court, appellants argue that the Court of Appeals failed to give this legislation the critical scrutiny demanded under accepted First Amendment and equal protection principles. In appellants’ view, limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment, since virtually all meaningful political communications in the modern setting involve the expenditure of money. Further, they argue that the reporting and disclosure provisions of the Act unconstitutionally impinge on their right to freedom of association. . . .

I. Contribution and Expenditure Limitations The intricate statutory scheme adopted by Congress to regulate federal election campaigns includes restrictions 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 overall 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 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.

A. General Principles The Act’s contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualiﬁcations of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest

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protection to such political expression in order “to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” . . . Although First Amendment protections are not conﬁned to “the exposition of ideas,” Winters v. New York (1948), “there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates. . . . ” Mills v. Alabama (1966). This no more than reﬂects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for ofﬁce is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. . . . The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama (1958), stemmed from the Court’s recognition that “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee “ ‘freedom to associate with others for the common advancement of political beliefs and ideas,’ ” a freedom that encompasses “ ‘[t]he right to associate with the political party of one’s choice.’ ” . . . 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,” would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any signiﬁcant use of the most effective modes of communication. 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 and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.

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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. 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. 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. The overall effect of the Act’s contribution 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. . . . 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 (1957) (plurality opinion). 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.

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B. Contribution Limitations 1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized Campaign Committees

Section 608 (b) provides, with certain limited exceptions, that “no person shall make contributions to any candidate with respect to any election for Federal ofﬁce which, in the aggregate, exceed $1,000.” The statute deﬁnes “person” broadly to include “an individual, partnership, committee, association, corporation or any other organization or group of persons.” The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or promise to give a contribution, made for the purpose of inﬂuencing a primary election, a Presidential preference primary, or a general election for any federal ofﬁce. The $1,000 ceiling applies regardless of whether the contribution is given to the candidate, to a committee authorized in writing by the candidate to accept contributions on his behalf, or indirectly via earmarked gifts passed through an intermediary to the candidate. The restriction applies to aggregate amounts contributed to the candidate for each election—with primaries, runoff elections, and general elections counted separately, and all Presidential primaries held in any calendar year treated together as a single election campaign. Appellants contend that the $1,000 contribution ceiling unjustiﬁably burdens First Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent ofﬁceholders and against minor-party candidates in violation of the Fifth Amendment. We address each of these claims of invalidity in turn. (a)

As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the Act’s contribution limitations is their restriction of one aspect of the contributor’s freedom of political association. The Court’s decisions involving associational freedoms establish that the right of association is a “basic constitutional freedom,” Kusper v. Pontikes, 414 U.S., at 57, that is “closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.” Shelton v. Tucker (1960). . . . In view of the fundamental nature of the right to associate, governmental “action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” Yet, it is clear that “[n]either the right to associate nor the right to participate in political activities is absolute.” CSC v. Letter Carriers (1973). Even a “ ‘signiﬁcant interference’ with protected rights of political association” may be sustained if the State demonstrates a sufﬁciently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. . . . Appellees argue that the Act’s restrictions on large campaign contributions are justiﬁed by three governmental interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive inﬂuence of large ﬁnancial contributions on candidates’ positions and on their actions if elected to ofﬁce. Two “ancillary” interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of afﬂuent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections. Second, it is argued, the ceilings may to some extent act as a brake on the

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skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money. It is unnecessary to look beyond the Act’s primary purpose—to limit the actuality and appearance of corruption resulting from large individual ﬁnancial contributions— in order to ﬁnd a constitutionally sufﬁcient justiﬁcation for the $1,000 contribution limitation. Under a system of private ﬁnancing of elections, a candidate lacking immense personal or family wealth must depend on ﬁnancial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential ofﬁce holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual ﬁnancial contributions. . . . Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with “proven and suspected quid pro quo arrangements.” But laws making criminal the giving and taking of bribes deal with only the most blatant and speciﬁc attempts of those with money to inﬂuence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited ﬁnancial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed. The Act’s $1,000 contribution limitation focuses precisely on the problem of large campaign contributions—the narrow aspect of political association where the actuality and potential for corruption have been identiﬁed—while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with ﬁnancial resources. Signiﬁcantly, the Act’s contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties. We ﬁnd that, under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of ﬁnancial contributions to political candidates are sufﬁcient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling. . . . 2. The $5,000 Limitation on Contributions by Political Committees

Section 608 (b) (2) permits certain committees, designated as “political committees,” to contribute up to $5,000 to any candidate with respect to any election for federal ofﬁce. In order to qualify for the higher contribution ceiling, a group must have been registered with the Commission as a political committee under 2 U.S.C.

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433 (1970 ed., Supp. IV) for not less than six months, have received contributions from more than 50 persons, and, except for state political party organizations, have contributed to ﬁve or more candidates for federal ofﬁce. Appellants argue that these qualiﬁcations unconstitutionally discriminate against ad hoc organizations in favor of established interest groups and impermissibly burden free association. The argument is without merit. Rather than undermining freedom of association, the basic provision enhances the opportunity of bona ﬁde groups to participate in the election process, and the registration, contribution, and candidate conditions serve the permissible purpose of preventing individuals from evading the applicable contribution limitations by labeling themselves committees. . . . 4. The $25,000 Limitation on Total Contributions During any Calendar Year

In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a particular candidate for any single election, the Act contains an overall $25,000 limitation on total contributions by an individual during any calendar year. 608 (b) (3). A contribution made in connection with an election is considered, for purposes of this subsection, to be made in the year the election is held. Although the constitutionality of this provision was drawn into question by appellants, it has not been separately addressed at length by the parties. The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of ﬁnancial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.

C. Expenditure Limitations The Act’s expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot, to an expenditure of $1,000 “relative to a clearly identiﬁed candidate during a calendar year.” 608 (e) (1). Other expenditure ceilings limit spending by candidates, 608 (a), their campaigns, 608 (c), and political parties in connection with election campaigns, 608 (f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression “at the core of our electoral process and of the First Amendment freedoms.” Williams v. Rhodes (1968). 1. The $1,000 Limitation on Expenditures “Relative to a Clearly Identiﬁed Candidate”

Section 608 (e) (1) provides that “[n]o person may make any expenditure . . . relative to a clearly identiﬁed candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000.” The plain effect of 608 (e) (1) is to prohibit all individuals, who are neither candidates nor owners of institutional press

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facilities, and all groups, except political parties and campaign organizations, from voicing their views “relative to a clearly identiﬁed candidate” through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement “relative to a clearly identiﬁed candidate” in a major metropolitan newspaper. . . . We turn then to the basic First Amendment question—whether 608 (e) (1), even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of Appeals summarily held the provision constitutionally valid on the ground that “section 608 (e) is a loophole-closing provision only” that is necessary to prevent circumvention of the contribution limitations. We cannot agree. The discussion in Part I-A, supra, explains why the Act’s expenditure limitations impose far greater restraints on the freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms caused by 608 (e) (1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of 608 (e) (1) turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression. 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 quo arrangements 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 ofﬁce-holder. 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. Second, quite apart from the shortcomings of 608 (e) (1) 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

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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. Section 608 (b)’s 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 the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. . . . 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. 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. But 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, 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, 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. . . . For the reasons stated, we conclude that 608 (e) (1)’s independent expenditure limitation is unconstitutional under the First Amendment. . . . 3. Limitations on Campaign Expenditures

Section 608 (c) places limitations on overall campaign expenditures by candidates seeking nomination for election and election to federal ofﬁce. Presidential candidates may spend $10,000,000 in seeking nomination for ofﬁce and an additional $20,000,000 in the general election campaign. 608 (c) (1) (A), (B). The ceiling on senatorial campaigns is pegged to the size of the voting-age population of the State with minimum dollar amounts applicable to campaigns in States with small populations. In senatorial primary elections, the limit is the greater of eight cents multiplied by the voting-age population or $100,000, and in the general election the limit is increased to 12 cents multiplied by the voting-age population or $150,000. 608 (c) (1) (C), (D). The Act imposes blanket $70,000 limitations on both primary campaigns and general election campaigns for the House of Representatives with

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the exception that the senatorial ceiling applies to campaigns in States entitled to only one Representative. 608 (c) (1) (C)-(E). These ceilings are to be adjusted upwards at the beginning of each calendar year by the average percentage rise in the consumer price index for the 12 preceding months. 608 (d). No governmental interest that has been suggested is sufﬁcient to justify the restriction on the quantity of political expression imposed by 608 (c)’s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting inﬂuence of large contributions is served by the Act’s contribution limitations and disclosure provisions rather than by 608 (c)’s campaign expenditure ceilings. . . . The interest in equalizing the ﬁnancial resources of candidates competing for federal ofﬁce is no more convincing a justiﬁcation for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the ﬁnancial resources available to a candidate’s campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate’s support. There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate’s U.S. Sen. James L. Buckley (R, NY) testiﬁes in Washington in message to the electorate. Moreover, the equalization of per- this March 21, 1975, photo. (AP Photo.) missible 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. The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals stressed statistics indicating that spending for federal election campaigns increased almost 300% between 1952 and 1972 in comparison with a 57.6% rise in the consumer price index during the same period. Appellants respond that during these years the rise in campaign spending lagged behind the percentage increase in total expenditures for commercial advertising and the size of the gross national product. In any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign. For these reasons we hold that 608 (c) is constitutionally invalid. In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate, 608 (b) (1), a $5,000 limitation on contributions by a political committee to a single candidate, 608 (b) (2), and a $25,000 limitation

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on total contributions by an individual during any calendar year, 608 (b) (3), are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act’s primary weapons against the reality or appearance of improper inﬂuence stemming from the dependence of candidates on large campaign contributions. The contribution ceilings thus serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act’s independent expenditure ceiling, 608 (e) (1), its limitation on a candidate’s expenditures from his own personal funds, 608 (a), and its ceilings on overall campaign expenditures, 608 (c). These provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.

II. Reporting and disclosure requirements Unlike the limitations on contributions and expenditures imposed by 18 U.S.C. 608 (1970 ed., Supp. IV), the disclosure requirements of the Act, 2 U.S.C. 431 et seq. (1970 ed., Supp. IV), are not challenged by appellants as per se unconstitutional restrictions on the exercise of First Amendment freedoms of speech and association. Indeed, appellants argue that “narrowly drawn disclosure requirements are the proper solution to virtually all of the evils Congress sought to remedy.” Brief for Appellants 171. The particular requirements embodied in the Act are attacked as overbroad— both in their application to minor-party and independent candidates and in their extension to contributions as small as $11 or $101. Appellants also challenge the provision for disclosure by those who make independent contributions and expenditures, 434 (e). The Court of Appeals found no constitutional inﬁrmities in the provisions challenged here. We afﬁrm the determination on overbreadth and hold that 434 (e), if narrowly construed, also is within constitutional bounds. . . . The Act presently under review replaced all prior disclosure laws. Its primary disclosure provisions impose reporting obligations on “political committees” and candidates. . . . Each political committee is required to register with the Commission and to keep detailed records of both contributions and expenditures. These records must include the name and address of everyone making a contribution in excess of $10, along with the date and amount of the contribution. If a person’s contributions aggregate more than $100, his occupation and principal place of business are also to be included. These ﬁles are subject to periodic audits and ﬁeld investigations by the Commission. Each committee and each candidate also is required to ﬁle quarterly reports. The reports are to contain detailed ﬁnancial information, including the full name, mailing address, occupation, and principal place of business of each person who has contributed over $100 in a calendar year, as well as the amount and date of the contributions. They are to be made available by the Commission “for public inspection and copying.” 438 (a) (4). Every candidate for federal ofﬁce is required to designate a “principal campaign committee,” which is to receive reports of contributions and expenditures made on the candidate’s behalf from other political committees and to compile and ﬁle these reports, together with its own statements, with the Commission.

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Every individual or group, other than a political committee or candidate, who makes “contributions” or “expenditures” of over $100 in a calendar year “other than by contribution to a political committee or candidate” is required to ﬁle a statement with the Commission. Any violation of these recordkeeping and reporting provisions is punishable by a ﬁne of not more than $1,000 or a prison term of not more than a year, or both. 441 (a).

A. General Principles Unlike the overall limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities. But we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. . . . We long have recognized that signiﬁcant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justiﬁed by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama (1958) we have required that the subordinating interests of the State must survive exacting scrutiny. We also have insisted that there be a “relevant correlation” or “substantial relation” between the governmental interest and the information required to be disclosed. This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct in requiring disclosure. . . . Appellees argue that the disclosure requirements of the Act differ signiﬁcantly from those at issue in NAACP v. Alabama and its progeny because the Act only requires disclosure of the names of contributors and does not compel political organizations to submit the names of their members. As we have seen, group association is protected because it enhances “[e]ffective advocacy.” NAACP v. Alabama. The right to join together “for the advancement of beliefs and ideas” is diluted if it does not include the right to pool money through contributions, for funds are often essential if “advocacy” is to be truly or optimally “effective.” . . . Our past decisions have not drawn ﬁne lines between contributors and members but have treated them interchangeably. . . . The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged that there are governmental interests sufﬁciently important to outweigh the possibility of infringement, particularly when the “free functioning of our national institutions” is involved. . . . The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. They fall into three categories. First, disclosure provides the electorate with information “as to where political campaign money comes from and how it is spent by the candidate” in order to aid the voters in evaluating those who seek federal ofﬁce. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate’s ﬁnancial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in ofﬁce. Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of

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publicity. This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate’s most generous supporters is better able to detect any post-election special favors that may be given in return. Third, and not least signiﬁcant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above. The disclosure requirements, as a general matter, directly serve substantial governmental interests. In determining whether these interests are sufﬁcient to justify the requirements we must look to the extent of the burden that they place on individual rights. It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insigniﬁcant burdens on individual rights, and they must be weighed carefully against the interests which Congress has sought to promote by this legislation. In this process, we note and agree with appellants’ concession that disclosure requirements— certainly in most applications—appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.

III. Public Financing of Presidential Election Campaigns A series of statutes for the public ﬁnancing of Presidential election campaigns produced the scheme now found in 6096 and Subtitle H of the Internal Revenue Code of 1954, 26 U.S.C. 6096, 9001–9012, 9031–9042 (1970 ed., Supp. IV). Both the District Court and the Court of Appeals sustained Subtitle H against a constitutional attack. Appellants renew their challenge here, contending that the legislation violates the First and Fifth Amendments. We ﬁnd no merit in their claims and afﬁrm.

A. Summary of Subtitle H Section 9006 establishes a Presidential Election Campaign Fund (Fund), ﬁnanced from general revenues in the aggregate amount designated by individual taxpayers, under 6096, who on their income tax returns may authorize payment to the Fund of one dollar of their tax liability in the case of an individual return or two dollars in the case of a joint return. The Fund consists of three separate accounts to ﬁnance (1) party nominating conventions, 9008 (a), (2) general election campaigns, 9006 (a), and (3) primary campaigns, 9037 (a). Chapter 95 of Title 26, which concerns ﬁnancing of party nominating conventions and general election campaigns, distinguishes among “major,” “minor,” and “new” parties. A major party is deﬁned as a party whose candidate for President in the most recent election received 25% or more of the popular vote. 9002 (6). A minor party is deﬁned as a party whose candidate received at least 5% but less than 25% of the vote at the most recent election. 9002 (7). All other parties are new parties, 9002 (8), including both newly created parties and those receiving less than 5% of the vote in the last election. Major parties are entitled to $2,000,000 to defray their national committee Presidential nominating convention expenses, must limit total expenditures to that

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amount, 9008 (d), and may not use any of this money to beneﬁt a particular candidate or delegate, 9008 (c). A minor party receives a portion of the major-party entitlement determined by the ratio of the votes received by the party’s candidate in the last election to the average of the votes received by the major parties’ candidates. 9008 (b) (2). The amounts given to the parties and the expenditure limit are adjusted for inﬂation, using 1974 as the base year. 9008 (b) (5). No ﬁnancing is provided for new parties, nor is there any express provision for ﬁnancing independent candidates or parties not holding a convention. For expenses in the general election campaign, 9004 (a) (1) entitles each majorparty candidate to $20,000,000. This amount is also adjusted for inﬂation. See 9004 (a) (1). To be eligible for funds the candidate must pledge not to incur expenses in excess of the entitlement under 9004 (a) (1) and not to accept private contributions except to the extent that the fund is insufﬁcient to provide the full entitlement. 9003 (b) Minor-party candidates are also entitled to funding, again based on the ratio of the vote received by the party’s candidate in the preceding election to the average of the major-party candidates. 9004 (a) (2) (A). Minor-party candidates must certify that they will not incur campaign expenses in excess of the major-party entitlement and that they will accept private contributions only to the extent needed to make up the difference between that amount and the public funding grant. 9003 (c). New-party candidates receive no money prior to the general election, but any candidate receiving 5% or more of the popular vote in the election is entitled to postelection payments according to the formula applicable to minor-party candidates. 9004 (a) (3). Similarly, minor-party candidates are entitled to post-election funds if they receive a greater percentage of the average major-party vote than their party’s candidate did in the preceding election; the amount of such payments is the difference between the entitlement based on the preceding election and that based on the actual vote in the current election. 9004 (a) (3). A further eligibility requirement for minor- and new-party candidates is that the candidate’s name must appear on the ballot, or electors pledged to the candidate must be on the ballot, in at least 10 States. 9002 (2) (B). Chapter 96 establishes a third account in the Fund, the Presidential Primary Matching Payment Account. 9037 (a). This funding is intended to aid campaigns by candidates seeking Presidential nomination “by a political party,” 9033 (b) (2), in “primary elections,” 9032 (7). The threshold eligibility requirement is that the candidate raise at least $5,000 in each of 20 States, counting only the ﬁrst $250 from each person contributing to the candidate. 9033 (b) (3), (4). In addition, the candidate must agree to abide by the spending limits in 9035. See 9033 (b) (1). Funding is provided according to a matching formula: each qualiﬁed candidate is entitled to a sum equal to the total private contributions received, disregarding contributions from any person to the extent that total contributions to the candidate by that person exceed $250. 9034 (a). Payments to any candidate under Chapter 96 may not exceed 50% of the overall expenditure ceiling accepted by the candidate. 9034 (b).

B. Constitutionality of Subtitle H Appellants argue that Subtitle H is invalid (1) as “contrary to the ‘general welfare,’ ” Art. I, 8, (2) because any scheme of public ﬁnancing of election campaigns is inconsistent with the First Amendment, and (3) because Subtitle H invidiously

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discriminates against certain interests in violation of the Due Process Clause of the Fifth Amendment. We ﬁnd no merit in these contentions. . . . 1. General Election Campaign Financing

Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for pre-election funding, limit new-party candidates to post-election funds, and deny any funds to candidates of parties receiving less than 5% of the vote. These provisions, it is argued, are fatal to the validity of the scheme, because they work invidious discrimination against minor and new parties in violation of the Fifth Amendment. We disagree. . . .

Conclusion In summary, we sustain the individual contribution limits, the disclosure and reporting provisions, and the public ﬁnancing scheme. We conclude, however, that the limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds are constitutionally inﬁrm. Finally, we hold that most of the powers conferred by the Act upon the Federal Election Commission can be exercised only by “Ofﬁcers of the United States,” appointed in conformity with Art. II, 2, cl. 2, of the Constitution, and therefore cannot be exercised by the Commission as presently constituted. In No. 75-436, the judgment of the Court of Appeals is afﬁrmed in part and reversed in part. The judgment of the District Court in No. 75-437 is afﬁrmed. The mandate shall issue forthwith, except that our judgment is stayed, for a period not to exceed 30 days, insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act. So ordered.

ANALYSIS In Buckley v. Valeo (1976), the Supreme Court addressed the constitutional challenges to the 1974 Federal Election Campaign Act amendments (see document). As discussed in the FECA entry, there were essentially ﬁve different kinds of campaign ﬁnance regulations that Congress incorporated into the 1974 amendments: limits on campaign contributions, limits on campaign expenditures, disclosure of campaign contributions and expenditures, public ﬁnancing of presidential campaigns, and creation of a Federal Election Commission to enforce the applicable provisions. The Supreme Court upheld the campaign contribution limits, disclosure, and public ﬁnancing elements of the bill, but it struck down the act’s expenditure limits and the means for appointing FEC members. Senator James Buckley (R, NY) and others ﬁled suit in federal court, challenging the act’s constitutionality. Because of a minor amendment offered by Buckley during Senate debate, legal challenges to the act received expedited review. Therefore, the Supreme Court heard oral arguments in November 1975 and rendered its decision on January 30, 1976, voting 7–1 to uphold most of the Act’s provisions. Five justices wrote separate opinions, but a per curiam (as a whole) opinion announced the judgment of the Court, explaining the Court’s reasoning. The Court

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ﬁrst addressed contribution and expenditure limits. Under the FECA, individuals were prohibited from contributing more than $1,000 per candidate per election (primary and general) for a total of $2,000 to a candidate, $5,000 to a PAC, and $25,000 total in a single year. Individuals were also barred from spending more than $1,000 in any given year “relative to a clearly identiﬁed candidate.” The Court opened its per curiam opinion by recognizing that the First Amendment protects political expression and the exposition of ideas to the broadest extent possible. Citing New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court argued that the First Amendment was a reﬂection of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” The First Amendment protected not only the freedom of speech, it also protected freedom of association, as recognized by the Court in NAACP v. Alabama (1958) and other cases. Recognizing the Court’s long-standing commitment to the First Amendment, the government maintained that the act’s restrictions did not limit speech but rather conduct. First tackling the expenditure limits, the justices argued that any restriction on what a person can spend in 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” (emphasis added). This is the case because money is required for the dissemination of ideas in a political campaign. Therefore, the $1,000 cap on spending “relative to a clearly identiﬁed candidate” limited citizens and interest groups from effectively participating in the marketplace of campaign ideas. Turning next to the contribution limits, the Court concluded that limits on what a person may contribute to a candidate, group, or party imposed only a “marginal restriction upon the contributor’s ability to engage in free communications.” The Court reasoned that a ﬁnancial contribution indicated support but that the quantity of support did not increase with each additional dollar. In other words, it was impossible to conclude that the $1,000 contributor supported the candidate 10 times more than the $100 contributor. Contribution limits, therefore, imposed “little direct restraint on [a person’s] political communication.” While the justices were aware that contribution limits likely affected campaign expenditures, they were unconvinced that contribution limits would dramatically affect expenditures other than to require candidates to raise more money from more individuals. In analyzing whether the act’s contribution limits violated the First Amendment, the Court balanced First Amendment rights against the government’s three asserted interests. First, the government maintained that contribution limits were needed to prevent corruption, as well as the appearance of corruption, “spawned by the real or imagined coercive inﬂuence of large ﬁnancial contributions on candidates’ positions and on their actions if elected to ofﬁce.” Second, the government argued that contribution limits were needed to equalize the political voices of all citizens, to reduce the political power of the wealthy and enhance the power of the poor. Finally, the government maintained that contribution limits were needed to reduce the “skyrocketing cost of political campaigns.” While rejecting the second and third justiﬁcations for contribution limits, the Court classiﬁed the government’s corruption rationale as “weighty” and narrowly tailored to address legitimate corruption concerns. Because of this, the Court deemed the $1,000 contribution limit constitutional. Citing the prospects for circumventing the $1,000 limit, the Court also upheld the $5,000 limitation on contributions by PACs, as well as the $25,000 ceiling on annual contributions.

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Section 434(e) required disclosing information related to what an individual or group contributed or spent above $100 in a campaign. Buckley argued that the disclosure provision intruded on privacy of belief and deterred individuals from making contributions or engaging in campaign expenditures. The government maintained that voters were entitled to maximum information on campaign contributions and expenditures to ensure that the act would have the maximum deterrent effect on corruption. The Court agreed with the government and upheld the disclosure requirements, reasoning that information produced by disclosure was closely connected to the government’s interest in reducing actual and perceived corruption. The 1974 FECA amendments also established public ﬁnancing of the parties’ national nominating conventions, presidential elections, and presidential primary campaigns. The act provided for a one-dollar checkoff per ﬁler on tax returns to fund them. The act called for giving each major party candidate $20 million, adjusted for inﬂation, in exchange for not incurring expenses above the allotted amount and not accepting private donations. For presidential primaries, the candidates were entitled to receive matching public funds if they raised at least $5,000 in each of 20 states, counting only the ﬁrst $250 given by each contributor. Upon meeting the requirements, the candidates received matching funds for private donations up to $250. However, the presidential primary matching funds provision capped the amount a candidate could receive at 50 percent of the expenditure ceiling. The Court upheld the public ﬁnancing provisions as legitimate state interests to reduce the corrosive inﬂuence of large donations to candidates and parties. The expenditure ceilings attached to the public ﬁnancing provisions were also upheld, with the Court arguing that expenditure limits can be constitutional only if attached to public ﬁnancing. The ﬁnal major provision in Buckley was the creation of a Federal Election Commission (FEC) to enforce and administer the act. Besides creating the FEC, the 1974 amendments directed the agency to ﬁle and keep all campaign ﬁnance reports submitted by parties, candidates, and political organizations, to make such rules “as are necessary to carry out the provisions” of the act, and to issue advisory opinions on activities that might violate campaign ﬁnance law. As drafted, the FEC was to be composed of eight members, with two nominations each coming from the Speaker of the House, the president pro tempore of the Senate, and the president. The remaining two seats were given to the Clerk of the House of Representatives and the Secretary of the Senate, who were ex ofﬁcio members without the right to vote. The six voting members of the commission were to be conﬁrmed by a majority vote of Congress. On the basis of a historical analysis and a review of the Framers’ intent, the Court concluded that the method of appointment to the FEC violated the Appointments Clause of the Constitution, because the power to make appointments was given to individuals (president pro tempore of the Senate and the Speaker of the House) other than the president. However, even assuming that membership was constitutionally constructed, the Court concluded that the FEC’s proposed enforcement power, which included the right to provide judicial relief to aggrieved parties, contravened the basic constitutional principle that the executive branch, not the legislative branch, enforce the law. The Court noted that the FEC’s proposed powers were most similar to powers exercised by an independent regulatory agency and could not be exercised by the commission. In summary, the Court upheld the FECA’s contribution limits, disclosure requirements, and public ﬁnancing scheme, while striking down the expenditure limits and the FEC’s selection method. Though the Court had given Congress 30 days to repair

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the FEC provisions so it could function during the 1976 election cycle, Congress was unable to resolve its internal differences, and on March 22, 1976, the FEC ceased to operate as an enforcement agency. Congress ﬁnally agreed on a new FEC in its 1976 amendments to FECA, making the FEC an independent regulatory agency. The new law gave the president the sole power to appoint FEC members, subject to Senate conﬁrmation. However, owing to a controversial advisory opinion issued by the FEC in 1975, the new guidelines limited the FEC’s advisory opinion power only to the facts of the case immediately before it (see FECA document). To this day, Buckley v. Valeo (1976) provides the legal framework for campaign ﬁnance laws, but the decision continues to receive strident criticism from all sides. Most notably, while a majority of the Supreme Court justices still support the Buckley framework, numerous justices have expressed deep reservations about the decision or call for its reversal outright. In a concurring opinion in Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996), Justice Thomas urged the overturning of Buckley on the basis of its ﬂawed distinction between contributions and expenditures. According to Justice Thomas, money contributed and expended was speech and, therefore, any restriction on speech must be subjected to strict scrutiny. Justice Thomas has repeatedly called for overruling Buckley, in separate opinions in Nixon v. Shrink Missouri Government PAC (2000), McConnell v. Federal Election Commission (2003) (see document), and Randall v. Sorrell (2006). What distinguishes Justice Thomas from other justices is his readiness to overrule Buckley in the absence of such a challenge explicitly before the Court. Justices Scalia and Kennedy also have deep reservations about the contributionexpenditure distinction articulated in Buckley. While Justice Scalia has joined Justice Thomas in calling for the reversal of Buckley in at least one case, Justice Kennedy has been more measured, probably because the Court has never speciﬁcally asked to be briefed on whether Buckley should be overruled. However, in every campaign ﬁnance case before him, Justice Kennedy has sided with the party seeking less campaign ﬁnance regulation. In his dissent in Austin v. Michigan Chamber of Commerce (1990) (see document) and his separate opinions in Nixon and McConnell, Justice Kennedy has clearly endorsed the idea that money equals speech and, therefore, campaign ﬁnance regulations should be subjected to the most severe scrutiny. While generally supportive of Buckley, Justices Stevens and Ginsburg have expressed concerns that expenditure limits might in fact be constitutional. Because of the ever-rising costs of campaigns and the endless fund-raising of candidates that takes them away from governing and campaigning, these two justices have supported laws that limit campaign expenditures (see Colorado Republican Federal Campaign Committee v. Federal Election Commission [1996] and Randall v. Sorrell [2006]). Finally, the Court’s Buckley decision was comprehensive, but it did not answer key questions, such as whether the contribution restrictions could be applied to ballot initiatives (see First National Bank of Boston v. Bellotti [1978] document) and whether the federal law that prohibited corporations from making campaign-related expenditures was constitutional. As evidenced in Nixon v. Shrink Missouri Government PAC (2000) and McConnell v. Federal Election Commission (2003) (see document), the Rehnquist Court remained deferential to state and federal legislative efforts to reduce corruption by limiting contributions given to candidates and parties. It was not until the Roberts Court (2005–) that the justices began to sharply question legislative motives and strike down campaign ﬁnance regulations.

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• Document: First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) • Date: Decided April 26, 1978 • Signiﬁcance: Two years after deciding Buckley v. Valeo (1976), the Supreme Court struck down a Massachusetts criminal law that prohibited corporations from spending money on referenda not related to their business interests. The Court ruled that corporations possessed free speech rights and that the state had not articulated how such a prohibition reduced corruption.

DOCUMENT First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) Justice Powell delivered the opinion of the Court In sustaining a state criminal statute that forbids certain expenditures by banks and business corporations for the purpose of inﬂuencing the vote on referendum proposals, the Massachusetts Supreme Judicial Court held that the First Amendment rights of a corporation are limited to issues that materially affect its business, property, or assets. The court rejected appellants’ claim that the statute abridges freedom of speech in violation of the First and Fourteenth Amendments. The issue presented in this context is one of ﬁrst impression in this Court. We postponed the question of jurisdiction to our consideration of the merits. We now reverse.

I The statute at issue . . . prohibits appellants, two national banking associations and three business corporations, from making contributions or expenditures “for the purpose of . . . inﬂuencing or affecting the vote on any question submitted to the voters, 198

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other than one materially affecting any of the property, business or assets of the corporation.” The statute further speciﬁes that “[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation.” A corporation that violates 8 may receive a maximum ﬁne of $50,000; a corporate ofﬁcer, director, or agent who violates the section may receive a maximum ﬁne of $10,000 or imprisonment for up to one year, or both. Appellants wanted to spend money to publicize their views on a proposed constitutional amendment that was to be submitted to the voters as a ballot question at a general election on November 2, 1976. The amendment would have permitted the legislature to impose a graduated tax on the income of individuals. After appellee, the Attorney General of Massachusetts, informed appellants that he intended to enforce 8 against them, they brought this action seeking to have the statute declared unconstitutional. On April 26, 1976, the case was submitted to a single justice of the Supreme Judicial Court on an expedited basis and upon agreed facts, in order to settle the question before the upcoming election. Judgment was reserved and the case referred to the full court that same day. Appellants argued that 8 violates the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment. . . . They prayed that the statute be declared unconstitutional on its face and as it would be applied to their proposed expenditures. The parties’ statement of agreed facts reﬂected their disagreement as to the effect that the adoption of a personal income tax would have on appellants’ business; it noted that “[t]here is a division of opinion among economists as to whether and to what extent a graduated income tax imposed solely on individuals would affect the business and assets of corporations.” Appellee did not dispute that appellants’ management believed that the tax would have a signiﬁcant effect on their businesses. . . .

III The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves signiﬁcant societal interests. The proper question therefore is not whether corporations “have” First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether 8 abridges expression that the First Amendment was meant to protect. We hold that it does.

A The speech proposed by appellants is at the heart of the First Amendment’s protection. . . . The referendum issue that appellants wish to address falls squarely within this description. In appellants’ view, the enactment of a graduated personal income tax, as proposed to be authorized by constitutional amendment, would have a seriously adverse effect on the economy of the State. The importance of the referendum issue to the people and government of Massachusetts is not disputed. Its merits, however, are the subject of sharp disagreement.

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As the Court said [previously], “there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.” If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual. The court below nevertheless held that corporate speech is protected by the First Amendment only when it pertains directly to the corporation’s business interests. In deciding whether this novel and restrictive gloss on the First Amendment comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment’s protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment. The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection. We turn now to that question.

B . . . Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause . . . and the Court has not identiﬁed a separate source for the right when it has been asserted by corporations. . . . Yet appellee suggests that First Amendment rights generally have been afforded only to corporations engaged in the communications business or through which individuals express themselves, and the court below apparently accepted the “materially affecting” theory as the conceptual common denominator between appellee’s position and the precedents of this Court. It is true that the “materially affecting” requirement would have been satisﬁed in the Court’s decisions affording protection to the speech of media corporations and corporations otherwise in the business of communication or entertainment, and to the commercial speech of business corporations. . . . In such cases, the speech would be connected to the corporation’s business almost by deﬁnition. But the effect on the business of the corporation was not the governing rationale in any of these decisions. None of them mentions, let alone attributes signiﬁcance to, the fact that the subject of the challenged communication materially affected the corporation’s business. . . .

C We thus ﬁnd no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The “materially affecting” requirement is not an identiﬁcation of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial

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issues and a requirement that the speaker have a sufﬁciently great interest in the subject to justify communication. Section 8 permits a corporation to communicate to the public its views on certain referendum subjects—those materially affecting its business—but not others. It also singles out one kind of ballot question—individual taxation—as a subject about which corporations may never make their ideas public. The legislature has drawn the line between permissible and impermissible speech according to whether there is a sufﬁcient nexus, as deﬁned by the legislature, between the issue presented to the voters and the business interests of the speaker. In the realm of protected speech, the legislature is constitutionally disqualiﬁed from dictating the subjects about which persons may speak and the speakers who may address a public issue. Police Dept. of Chicago v. Mosley (1972). If a legislature may direct business corporations to “stick to business,” it also may limit other corporations—religious, charitable, or civic—to their respective “business” when addressing the public. Such power in government to channel the expression of views is unacceptable under the First Amendment. Especially where, as here, the legislature’s suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended. Yet the State contends that its action is necessitated by governmental interests of the highest order. We next consider these asserted interests.

IV The constitutionality of 8’s prohibition of the “exposition of ideas” by corporations turns on whether it can survive the exacting scrutiny necessitated by a state-imposed restriction of freedom of speech. Especially where, as here, a prohibition is directed at speech itself, and the speech is intimately related to the process of governing, “the State may prevail only upon showing a subordinating interest which is compelling,” Bates v. Little Rock (1960); . . . ” and the burden is on the government to show the existence of such an interest.” Elrod v. Burns (1976). Even then, the State must employ means “closely drawn to avoid unnecessary abridgment. . . . ” Buckley v. Valeo, 424 U.S., at 25. . . . Appellee . . . advances two principal justiﬁcations for the prohibition of corporate speech. The ﬁrst is the State’s interest in sustaining the active role of the individual citizen in the electoral process and thereby preventing diminution of the citizen’s conﬁdence in government. The second is the interest in protecting the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. However weighty these interests may be in the context of partisan candidate elections, they either are not implicated in this case or are not served at all, or in other than a random manner, by the prohibition in 8.

A Preserving the integrity of the electoral process, preventing corruption, and “sustain[ing] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government” are interests of the highest importance. . . . Preservation of the individual citizen’s conﬁdence in government is equally important. . . .

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Appellee advances a number of arguments in support of his view that these interests are endangered by corporate participation in discussion of a referendum issue. They hinge upon the assumption that such participation would exert an undue inﬂuence on the outcome of a referendum vote, and—in the end—destroy the conﬁdence of the people in the democratic process and the integrity of government. According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee’s arguments were supported by record or legislative ﬁndings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. . . . But there has been no showing that the relative voice of corporations has been overwhelming or even signiﬁcant in inﬂuencing referenda in Massachusetts, or that there has been any threat to the conﬁdence of the citizenry in government. . . .

B Finally, appellee argues that 8 protects corporate shareholders, an interest that is both legitimate and traditionally within the province of state law. The statute is said to serve this interest by preventing the use of corporate resources in furtherance of views with which some shareholders may disagree. This purpose is belied, however, by the provisions of the statute, which are both underinclusive and overinclusive. The underinclusiveness of the statute is self-evident. Corporate expenditures with respect to a referendum are prohibited, while corporate activity with respect to the passage or defeat of legislation is permitted even though corporations may engage in lobbying more often than they take positions on ballot questions submitted to the voters. Nor does 8 prohibit a corporation from expressing its views, by the expenditure of corporate funds, on any public issue until it becomes the subject of a referendum, though the displeasure of disapproving shareholders is unlikely to be any less. . . . The overinclusiveness of the statute is demonstrated by the fact that 8 would prohibit a corporation from supporting or opposing a referendum proposal even if its shareholders unanimously authorized the contribution or expenditure. Ultimately shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues. . . .

V Because that portion of 8 challenged by appellants prohibits protected speech in a manner unjustiﬁed by a compelling state interest, it must be invalidated. The judgment of the Supreme Judicial Court is Reversed.

ANALYSIS In Buckley v. Valeo (1976) (see document), the Supreme Court upheld the campaign contribution limits enacted in the 1974 amendments to FECA (see document) but struck down the limits on expenditures by candidates or their campaigns and by individuals and groups acting independently of a campaign. The Court ruled that

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expenditure limits infringed on core speech rights without any reliable or persuasive evidence that such limits reduced political corruption. Two years later, in First Bank of Boston v. Bellotti (1978), the Supreme Court heard a challenge to a Massachusetts criminal law that banned corporate expenditures in ballot measure campaigns, an issue not speciﬁcally addressed in Buckley. In this case, a Massachusetts law that established criminal penalties for corporations making contributions or expenditures “for the purpose of . . . inﬂuencing or affecting the vote submitted to the voters, other than one materially affecting any of the property, business, or assets of the corporation” was challenged by two national banking associations and three business corporations that wished to spend money on a referendum concerning state personal income taxes. Massachusetts made two principal arguments in favor of the law. First, it contended that the state had a vital interest in “sustaining the active role of the individual citizen in the electoral process” and that corporate election speech produced disinterested citizens who might lose conﬁdence in the government. Second, the state maintained that it needed to protect the rights of shareholders whose interests and views might be different from those expressed by management through its corporate campaign expenditures. The Court ruled 5–4 in favor of the banks. Writing for the majority, Justice Powell concluded that the two interests forwarded by Massachusetts were not compelling and, therefore, did not survive the heightened scrutiny that restrictions on speech demanded. Justice Powell argued that there was no evidence that corporate speech had drowned out the citizens’ voices or diminished their conﬁdence in government and that shareholders can keep corporate management in check “through the procedures of corporate democracy.” Neither interest was compelling enough to override the free speech rights of corporations. Writing for three of the four dissenters, Justice White chastised the majority for failing to recognize that Massachusetts was attempting to properly balance competing First Amendment interests. While corporations have speech rights, Justice White argued, “the communications of proﬁtmaking corporations are not ‘an integral part of the development of ideas, of mental exploration and of the afﬁrmation of self.’ ” The reason that corporate speech was different from other speech was because corporations were not real persons, but rather, “artiﬁcial entities created by law for the purpose of furthering certain economic goals.” The vast wealth controlled by corporations, coupled with the full free speech rights of persons, meant that corporations had the power to distort the marketplace of ideas and, therefore, wreak havoc on the “very heart of our democracy.” Since Bellotti, the Court has largely upheld the right of corporations to engage in campaign speech. In one decision, Austin v. Michigan State Chamber of Commerce (1990) (see document), the Court upheld a Michigan law that prohibited corporations from spending money from their general treasury funds to either support or oppose state candidates. The Court’s majority distinguished Bellotti by arguing that the state had a compelling interest in reducing corruption, which included reducing the “corrosive and distorting effects of immense aggregations of wealth” and that the Michigan law only applied to candidate campaigns, not ballot initiatives. Austin, however, remained an outlier in the Supreme Court’s campaign ﬁnance jurisprudence and was ﬁnally formally overturned in Citizens United v. Federal Election Commission (2010) (see document). The Citizens United decision now extends

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Bellotti by allowing corporations to spend from their general treasury in both regular elections and ballot initiatives.

FURTHER READING “First Amendment. Corporate Free Speech.” 1978. Journal of Criminal Law and Criminology 69, no. 4 (Winter): 544–51. Siebecker, Michael R. 2008. “Building a ‘New Institutional’ Approach to Corporate Speech.” Alabama Law Review 59: 247.

• Document: Anderson v. Celebrezze, 460 U.S. 780 (1983) • Date: Decided April 19, 1983 • Signiﬁcance: In Anderson v. Celebrezze, the U.S. Supreme Court struck down an Ohio election law that imposed an early ﬁling deadline for independent presidential candidates. The majority concluded that Ohio’s law impermissibly protected the two established political parties from electoral competition and burdened the voting and associational rights of 1980 independent presidential candidate John Anderson.

DOCUMENT Anderson v. Celebrezze, 460 U.S. 780 (1983) Justice Stevens delivered the opinion of the Court On April 24, 1980, petitioner John Anderson announced that he was an independent candidate for the ofﬁce of President of the United States. Thereafter, his supporters—by gathering the signatures of registered voters, ﬁling required documents, and submitting ﬁling fees—were able to meet the substantive requirements for having his name placed on the ballot for the general election in November 1980 in all 50 States and the District of Columbia. On April 24, however, it was already too late for Anderson to qualify for a position on the ballot in Ohio and certain other States because the statutory deadlines for ﬁling a statement of candidacy had already passed. The question presented by this case is whether Ohio’s early ﬁling deadline placed an unconstitutional burden on the voting and associational rights of Anderson’s supporters. The facts are not in dispute. On May 16, 1980, Anderson’s supporters tendered a nominating petition containing approximately 14,500 signatures and a statement of 205

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candidacy to respondent Celebrezze, the Ohio Secretary of State. These documents would have entitled Anderson to a place on the ballot if they had been ﬁled on or before March 20, 1980. Respondent refused to accept the petition solely because it had not been ﬁled within the time required by 3513.25.7 of the Ohio Revised Code. Three days later Anderson and three voters, two registered in Ohio and one in New Jersey, commenced this action in the United States District Court for the Southern District of Ohio, challenging the constitutionality of Ohio’s early ﬁling deadline for independent candidates. The District Court granted petitioners’ motion for summary judgment and ordered respondent to place Anderson’s name on the general election ballot. 499 F. Supp. 121 (1980). The District Court held that the statutory deadline was unconstitutional. . . . The election was held while the appeal was pending. In Ohio Anderson received 254,472 votes, or 5.9 percent of the votes cast; nationally, he received 5,720,060 votes or approximately 6.6 percent of the total. The Court of Appeals reversed. . . . We now reverse.

I After a date toward the end of March, even if intervening events create unanticipated political opportunities, no independent candidate may enter the Presidential race and seek to place his name on the Ohio general election ballot. Thus the direct impact of Ohio’s early ﬁling deadline falls upon aspirants for ofﬁce. Nevertheless, as we have recognized, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter, 405 U.S. 134, 143 (1972). Our primary concern is with the tendency of ballot access restrictions “to limit the ﬁeld of candidates from which voters might choose.” Therefore, “[i]n approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” Ibid. The impact of candidate eligibility requirements on voters implicates basic constitutional rights. Writing for a unanimous Court in NAACP v. Alabama ex rel. Patterson (1958), Justice Harlan stated that it “is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” . . . As we have repeatedly recognized, voters can assert their preferences only through candidates or parties or both. “It is to be expected that a voter hopes to ﬁnd on the ballot a candidate who comes near to reﬂecting his policy preferences on contemporary issues.” Lubin v. Panish (1974). The right to vote is “heavily burdened” if that vote may be cast only for major-party candidates at a time when other parties or other candidates are “clamoring for a place on the ballot.” Ibid.; Williams v. Rhodes, at 31. The exclusion of candidates also burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for likeminded citizens. Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates. We have

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recognized that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown (1974). To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualiﬁcations of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects—at least to some degree—the individual’s right to vote and his right to associate with others for political ends. Nevertheless, the State’s important regulatory interests are generally sufﬁcient to justify reasonable, nondiscriminatory restrictions. Constitutional challenges to speciﬁc provisions of a State’s election laws therefore cannot be resolved by any “litmus-paper test” that will separate valid from invalid restrictions. Storer, at 730. Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must ﬁrst consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justiﬁcations for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. . . . The results of this evaluation will not be automatic; as we have recognized, there is “no substitute for the hard judgments that must be made.” Storer v. Brown, at 730.

II An early ﬁling deadline may have a substantial impact on independent-minded voters. In election campaigns, particularly those which are national in scope, the candidates and the issues simply do not remain static over time. Various candidates rise and fall in popularity; domestic and international developments bring new issues to center stage and may affect voters’ assessments of national problems. Such developments will certainly affect the strategies of candidates who have already entered the race; they may also create opportunities for new candidates. . . . Yet Ohio’s ﬁling deadline prevents persons who wish to be independent candidates from entering the signiﬁcant political arena established in the State by a Presidential election campaign—and creating new political coalitions of Ohio voters—at any time after mid to late March. At this point developments in campaigns for the major-party nominations have only begun, and the major parties will not adopt their nominees and platforms for another ﬁve months. Candidates and supporters within the major parties thus have the political advantage of continued ﬂexibility; for independents, the inﬂexibility imposed by the March ﬁling deadline is a correlative disadvantage because of the competitive nature of the electoral process. . . . Not only does the challenged Ohio statute totally exclude any candidate who makes the decision to run for President as an independent after the March deadline, it also burdens the signature-gathering efforts of independents who decide to run in time to meet the deadline. When the primary campaigns are far in the future and the election itself is even more remote, the obstacles facing an independent candidate’s

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organizing efforts are compounded. Volunteers are more difﬁcult to recruit and retain, media publicity and campaign contributions are more difﬁcult to secure, and voters are less interested in the campaign. . . . A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and—of particular importance—against those voters whose political preferences lie outside the existing political parties. . . . By limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, such restrictions threaten to reduce diversity and competition in the marketplace of ideas. Historically political ﬁgures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream. Illinois Elections Bd. v. Socialist Workers Party, 440 U.S., at 186. . . . In short, the primary values protected by the First Amendment—“a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)—are served when election campaigns are not monopolized by the existing political parties. Furthermore, in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected ofﬁcials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State’s enforcement of more stringent ballot access requirements, including ﬁling deadlines, has an impact beyond its own borders. Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries. This Court, striking down a state statute unduly restricting the choices made by a major party’s Presidential nominating convention, observed that such conventions serve “the pervasive national interest in the selection of candidates for national ofﬁce, and this national interest is greater than any interest of an individual State.” Cousins v. Wigoda, 419 U.S. 477, 490 (1975). The Ohio ﬁling deadline challenged in this case does more than burden the associational rights of independent voters and candidates. It places a signiﬁcant state-imposed restriction on a nationwide electoral process.

III The State identiﬁes three separate interests that it seeks to further by its early ﬁling deadline for independent Presidential candidates: voter education, equal treatment for partisan and independent candidates, and political stability. We now examine the legitimacy of these interests and the extent to which the March ﬁling deadline serves them.

Voter Education There can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular will in a general election. Moreover,

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the Court of Appeals correctly identiﬁed that interest as one of the concerns that motivated the Framers’ decision not to provide for direct popular election of the President. We are persuaded, however, that the State’s important and legitimate interest in voter education does not justify the speciﬁc restriction on participation in a Presidential election that is at issue in this case. The passage of time since the Constitutional Convention in 1787 has brought about two changes that are relevant to the reasonableness of Ohio’s statutory requirement that independents formally declare their candidacy at least seven months in advance of a general election. First, although it took days and often weeks for even the most rudimentary information about important events to be transmitted from one part of the country to another in 1787, today even trivial details about national candidates are instantaneously communicated nationwide in both verbal and visual form. Second, although literacy was far from universal in 18th-century America, today the vast majority of the electorate not only is literate but also is informed on a day-to-day basis about events and issues that affect election choices and about the ever-changing popularity of individual candidates. In the modern world it is somewhat unrealistic to suggest that it takes more than seven months to inform the electorate about the qualiﬁcations of a particular candidate simply because he lacks a partisan label. Rep. John B. Anderson (R, IL), independent candidate for Our cases reﬂect a greater faith in the ability of individual president, photographed by Warren K. Lefﬂer during an interview in July 1980. (Library of Congress, Prints & Phovoters to inform themselves about campaign issues. . . . It is also by no means self-evident that the interest in voter tographs Division, LC-DIG-ppmsca-19608.) education is served at all by a requirement that independent candidates must declare their candidacy before the end of March in order to be eligible for a place on the ballot in November. Had the requirement been enforced in Ohio, petitioner Anderson might well have determined that it would be futile for him to allocate any of his time and money to campaigning in that State. The Ohio electorate might thereby have been denied whatever beneﬁts his participation in local debates could have contributed to an understanding of the issues. A State’s claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the ﬂow of information to them must be viewed with some skepticism. . . .

Equal Treatment We also ﬁnd no merit in the State’s claim that the early ﬁling deadline serves the interest of treating all candidates alike. . . . It is true that a candidate participating in a primary election must declare his candidacy on the same date as an independent. But both the burdens and the beneﬁts of the respective requirements are materially different, and the reasons for requiring early ﬁling for a primary candidate are inapplicable to independent candidates in the general election. The consequences of failing to meet the statutory deadline are entirely different for party primary participants and independents. The name of the nominees of

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the Democratic and Republican Parties will appear on the Ohio ballot in November even if they did not decide to run until after Ohio’s March deadline had passed, but the independent is simply denied a position on the ballot if he waits too long. Thus, under Ohio’s scheme, the major parties may include all events preceding their national conventions in the calculus that produces their respective nominees and campaign platforms, but the independent’s judgment must be based on a history that ends in March. . . .

Political Stability Although the Court of Appeals did not discuss the State’s interest in political stability, that was the primary justiﬁcation advanced by respondent in the District Court, 499 F. Supp., at 134, and it is again asserted in this Court. Respondent’s brief explains that the State has a substantial interest in protecting the two major political parties from “damaging intraparty feuding.” Brief for Respondent 41. According to respondent, a candidate’s decision to abandon efforts to win the party primary and to run as an independent “can be very damaging to state political party structure.” Anderson’s decision to run as an independent, respondent argues, threatened to “splinter” the Ohio Republican Party “by drawing away its activists to work in his ‘independent’ campaign.” Id., at 37; see id., at 44. Ohio’s asserted interest in political stability amounts to a desire to protect existing political parties from competition—competition for campaign workers, voter support, and other campaign resources—generated by independent candidates who have previously been afﬁliated with the party. Our evaluation of this interest is guided by two of our prior cases, Williams v. Rhodes and Storer v. Brown. In Williams v. Rhodes we squarely held that protecting the Republican and Democratic Parties from external competition cannot justify the virtual exclusion of other political aspirants from the political arena. . . . Thus in Williams v. Rhodes we concluded that First Amendment values outweighed the State’s interest in protecting the two major political parties. . . . . . . [I]n Storer we recognized the legitimacy of the State’s interest in preventing “splintered parties and unrestrained factionalism.” But we did not suggest that a political party could invoke the powers of the State to assure monolithic control over its own members and supporters. Political competition that draws resources away from the major parties cannot, for that reason alone, be condemned as “unrestrained factionalism.” Instead, in Storer we examined the two challenged provisions in the context of California’s electoral system. By requiring a candidate to remain in the intraparty competition once the disafﬁliation deadline had passed, and by giving conclusive effect to the winnowing process performed by party members in the primary election, the challenged provisions were an essential part of “a general state policy aimed at maintaining the integrity of the various routes to the ballot.” Moreover, we pointed out that the policy “involves no discrimination against independents.” Storer, at 733. Ohio’s challenged restriction is substantially different from the California provisions upheld in Storer. As we have noted, the early ﬁling deadline does discriminate against independents. And the deadline is neither a “sore loser” provision nor a disafﬁliation statute. Furthermore, it is important to recognize that Storer upheld the State’s interest in avoiding political fragmentation in the context of elections

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wholly within the boundaries of California. The State’s interest in regulating a nationwide Presidential election is not nearly as strong; no State could singlehandedly assure “political stability” in the Presidential context. The Ohio deadline does not serve any state interest in “maintaining the integrity of the various routes to the ballot” for the Presidency, because Ohio’s Presidential preference primary does not serve to narrow the ﬁeld for the general election. A major party candidate who loses the Ohio primary, or who does not even run in Ohio, may nonetheless appear on the November general election ballot as the party’s nominee. In addition, the national scope of the competition for delegates at the Presidential nominating conventions assures that “intraparty feuding” will continue until August. More generally, the early ﬁling deadline is not precisely drawn to protect the parties from “intraparty feuding,” whatever legitimacy that state goal may have in a Presidential election. If the deadline is designed to keep intraparty competition within the party structure, its coverage is both too broad and too narrow. It is true that in this case 3513.25.7 was applied to a candidate who had previously competed in party primaries and then sought to run as an independent. But the early deadline applies broadly to independent candidates who have not been afﬁliated in the recent past with any political party. On the other hand, as long as the decision to run is made before the March deadline, Ohio does not prohibit independent candidacies by persons formerly afﬁliated with a political party, or currently participating in intraparty competition in other States—regardless of the effect on the political party structure. . . .

IV We began our inquiry by noting that our primary concern is . . . the interests of the voters who chose to associate together to express their support for Anderson’s candidacy and the views he espoused. Under any realistic appraisal, the “extent and nature” of the burdens Ohio has placed on the voters’ freedom of choice and freedom of association, in an election of nationwide importance, unquestionably outweigh the State’s minimal interest in imposing a March deadline. The judgment of the Court of Appeals is Reversed.

ANALYSIS Minor parties’ rights were protected by the Supreme Court’s decision in Williams v. Rhodes (1968), which struck down Ohio’s stringent ballot access law for presidential and vice presidential elections as violating the 14th Amendment’s Equal Protection Clause. The Supreme Court applied strict scrutiny to the Ohio law, meaning that a ballot access law would be upheld only if a state provided a compelling reason for the restriction. Ohio contended that its ballot signature requirement (15 percent of the votes cast in the preceding gubernatorial election) and deadline (February of the election year) were essential to protect two-party stability and reduce voter confusion. The Supreme Court found these justiﬁcations insufﬁcient and indeed not compelling. By 1983, however, the Supreme Court’s composition had changed signiﬁcantly and only three of the justices from Williams v. Rhodes (1968) remained. Furthermore, the Court had already started vacillating on the legality of restrictive

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ballot access laws, as evidenced by its decisions in Jenness v. Fortson (1971) (see document) and American Party of Texas v. White (1974). Like Williams v. Rhodes (1968), the issue in Anderson v. Celebrezze (1983) was whether Ohio’s statutory deadline for independent candidates to appear on the general election ballot was unconstitutional. According to section 3513.25.7 of the Ohio Revised Code, independent candidates could be placed on the general election ballot if the required nominating petition and candidacy statement were submitted 75 days before the presidential primary. In 1980 the deadline was March 20. Anderson’s supporters submitted a nominating petition and a statement of candidacy to the Ohio secretary of state, Anthony Celebrezze, on May 16. Citing the date, Celebrezze refused to accept the petition, and Anderson sued, claiming the early ﬁling deadline for independent candidates violated his supporters’ voting and associational freedoms. The district court ruled in favor of Anderson, and the election occurred while Ohio appealed. Anderson received approximately 6.6 percent of Ohio’s vote. The Court divided (5–4) on the constitutionality of Ohio’s statutory deadline. Writing for the majority, Justice Stevens placed the dispute in the context of balancing voters’ rights and the regulatory interests of states. While voters’ rights are “fundamental,” Justice Stevens argued, the states can regulate elections to cultivate order rather than chaos in the democratic process. Therefore, by adopting a balancing approach in ballot access cases, the Court abandoned the strict scrutiny analysis introduced in Williams v. Rhodes (1968) (see document). Instead, courts “must ﬁrst consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” and “then must identify and evaluate the precise interests put forward by the State as justiﬁcations for the burden imposed by its rule.” By replacing strict scrutiny with a less exacting balancing approach, the Supreme Court made it easier for states to convince courts that seemingly discriminatory election laws served vital interests, such as ensuring political stability or reducing voter confusion. While the long-term impact of the new balancing test had harmed minor parties’ ballot efforts, Justice Stevens concluded that Ohio’s early ﬁling deadline had a “substantial impact on independent-minded voters,” because it guaranteed that the November ballot would comprise the two major parties and only those independent candidates who were upset with the political system before March of that year. Because the political arena was volatile, with domestic and international issues constantly changing, the major parties beneﬁted when choosing their candidates and platforms in late summer. Justice Stevens determined, therefore, that Ohio’s ballot law essentially solidiﬁed the political cleavages that existed in March of the election year, a signiﬁcant restriction on the rights of independent candidates and their supporters. Ohio justiﬁed its early ﬁling deadline for independent presidential candidates by citing three interests: improving voter education, treating all candidates equally, and ensuring political stability. It maintained that voter education was served, because voters needed sufﬁcient time to research and familiarize themselves with the independent candidates. If the law allowed independent candidates on the ballot at a later time, voters would have insufﬁcient time to educate themselves. While having an informed and educated electorate was a laudable goal, Justice Stevens found this interest lacking, citing the relative simplicity of acquiring information about candidates in the “modern world.” Voters in the late 18th and early 19th centuries needed

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months to inform themselves about candidates, because information ﬂowed slowly; this was no longer the case, however. Justice Stevens also dismissed the state’s equal treatment argument, because while candidates participating in a primary election also had to declare their candidacy on the same date as an independent, the major parties were given automatic access to the ballot and were permitted to choose their nominees based on all factors leading to their late-summer conventions, while independents were not. Finally, the majority found no merit in the state’s contention that the early ﬁling deadline discouraged disgruntled candidates from leaving their parties, running as independents, and causing parties to splinter. Rather, the Court concluded that, as in Williams v. Rhodes (1968), the real interest was protecting the two major parties from competition. No evidence was submitted by the state to support its contention. Writing for himself and three others in dissent, Justice Rehnquist agreed with the new standard the majority articulated for election law disputes, but found Ohio’s early ﬁling deadline to be wholly reasonable, arguing that the majority’s conclusions were unsubstantiated by the factual record before the Court. For the dissenters, the ﬁling deadline simply prohibited sore-loser candidacies and required John Anderson and future independent candidates to choose whether to seek the presidency as a major party candidate or as an independent. As in Williams v. Rhodes (1968), the Supreme Court declared an Ohio election law unconstitutional. However, the real import of Anderson v. Celebrezze was that the Court shifted the standard of review in ballot access cases from strict scrutiny (see Williams v. Rhodes [1968] document) to a balancing approach, by which the justices gave greater weight to the states’ regulatory concerns. Subsequently, the Supreme Court’s ballot access jurisprudence has been inconsistent and unpredictable, and in the words of Harvard law professor Laurence Tribe, “the border between permissible and impermissible ballot access requirements remains ill-deﬁned” (Tribe 1988, 1101). While this case clouded how future Courts might rule in ballot access disputes, it is very clear that the new, less exacting review standard makes it easier for states to defend their ballot access laws.

FURTHER READING Smith, Bradley A. 1991. “Judicial Protection of Ballot-Access Rights: Third Parties Need Not Apply.” Harvard Law Review 28: 167. Tribe, Laurence. 1988. American Constitutional Law, 2nd ed. Ballot Access News, http://www.ballot-access.org.

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• Document: Munro v. Socialist Workers Party, 479 U.S. 189 (1986) • Date: Decided December 10, 1986 • Signiﬁcance: In Munro, the Supreme Court upheld a Washington state ballot access provision that required minor party candidates to not only be nominated by a convention but also receive 1 percent of the vote for that ofﬁce in its blanket primary. A seven-member majority accepted as reasonable Washington’s asserted interests in preventing ballot overcrowding and voter confusion.

DOCUMENT Munro v. Socialist Workers Party, 479 U.S. 189 (1986) Justice White delivered the opinion of the Court The State of Washington requires that a minor-party candidate for partisan ofﬁce receive at least 1% of all votes cast for that ofﬁce in the State’s primary election before the candidate’s name will be placed on the general election ballot. The question for decision is whether this statutory requirement, as applied to candidates for statewide ofﬁces, violates the First and Fourteenth Amendments to the United States Constitution. The Court of Appeals for the Ninth Circuit declared the provision unconstitutional. We reverse. In 1977, the State of Washington enacted amendments to its election laws, changing the manner in which candidates from minor political parties qualify for placement on the general election ballot. Before the amendments, a minor-party candidate did not participate in the State’s primary elections, but rather sought his or her party’s nomination at a party convention held on the same day as the primary election for “major” parties. The convention-nominated, minor-party candidate secured a position on the general election ballot upon the ﬁling of a certiﬁcate signed by at 214

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least 100 registered voters who had participated in the convention and who had not voted in the primary election. The 1977 amendments retained the requirement that a minor-party candidate be nominated by convention, but imposed the additional requirement that, as a precondition to general ballot access, the nominee for an ofﬁce appear on the primary election ballot and receive at least 1% of all votes cast for that particular ofﬁce at the primary election. Wash. Rev. Code 29.18.110 (1985). Washington conducts a “blanket primary” at which registered voters may vote for any candidate of their choice, irrespective of the candidates’ political party afﬁliation. A candidate seeking placement on the primary election ballot must declare his candidacy no earlier than the last Monday in July, and no later than the following Friday. Minor-party nominating conventions are to be held on the Saturday preceding this ﬁling period. The primary election is held on the third Tuesday in September. The events giving rise to this action occurred in 1983, after the state legislature authorized a special primary election to be held on October 11, 1983, to ﬁll a vacancy in the ofﬁce of United States Senator. Appellee Dean Peoples qualiﬁed to be placed on the primary election ballot as the nominee of appellee Socialist Workers Party (Party). Also appearing on that ballot were 32 other candidates. At the primary, Mr. Peoples received approximately nine one-hundredths of one percent of the total votes cast for the ofﬁce, and, accordingly, the State did not place his name on the general election ballot. Appellees (Peoples, the Party, and two registered voters) commenced this action in United States District Court, alleging that 29.18.110 abridged their rights secured by the First and Fourteenth Amendments. The District Court entered judgment denying appellees relief, but the Court of Appeals for the Ninth Circuit reversed, holding that 29.18.110, as applied to candidates for statewide ofﬁces, was unconstitutional. The State ﬁled a timely appeal with this Court, and we noted probable jurisdiction. (1986). Restrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualiﬁed voters to cast their votes effectively, Williams v. Rhodes (1968), and may not survive scrutiny under the First and Fourteenth Amendments. In Williams v. Rhodes, for example, we held unconstitutional the election laws of Ohio insofar as in combination they made it virtually impossible for a new political party to be placed on the ballot, even if the party had hundreds of thousands of adherents. These associational rights, however, are not absolute and are necessarily subject to qualiﬁcation if elections are to be run fairly and effectively. Storer v. Brown (1974). While there is no “litmus-paper test” for deciding a case like this, ibid., it is now clear that States may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support among the potential voters for the ofﬁce. In Jenness v. Fortson (1971), the Court unanimously rejected a challenge to Georgia’s election statutes that required independent candidates and minor-party candidates, in order to be listed on the general election ballot, to submit petitions signed by at least 5% of the voters eligible to vote in the last election for the ofﬁce in question. Primary elections were held only for those political organizations whose candidate received 20% or more of the vote at the last gubernatorial or Presidential election. The Court’s opinion observed that “[t]here is surely an important state interest in requiring some preliminary showing of a signiﬁcant modicum

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of support before printing the name of a political organization’s candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.” Id., at 442. And, in American Party of Texas v. White (1974), candidates of minor political parties in Texas were required to demonstrate support by persons numbering at least 1% of the total vote cast for Governor at the last preceding general election. Candidates could secure the requisite number of petition signatures at precinct nominating conventions and by supplemental petitions following the conventions. Voters signing these supplemental petitions had to swear under oath that they had not participated in another party’s primary election or nominating process. In rejecting a First Amendment challenge to the 1% requirement, we asserted that the State’s interest in preserving the integrity of the electoral process and in regulating the number of candidates on the ballot was compelling and reiterated the holding in Jenness that a State may require a preliminary showing of signiﬁcant support before placing a candidate on the general election ballot. American Party of Texas v. White supra, at 782, n. 14. Jenness and American Party establish with unmistakable clarity that States have an “undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot. . . .” Anderson v. Celebrezze (1983). We reafﬁrm that principle today. The Court of Appeals determined that Washington’s interest in insuring that candidates had sufﬁcient community support did not justify the enactment of 29.18.110 because “Washington’s political history evidences no voter confusion from ballot overcrowding.” 765 F.2d, at 1420. We accept this historical fact, but it does not require invalidation of 29.18.110. We have never required a State to make a particularized showing of the existence of voter confusion, ballot over-crowding, or the presence of frivolous candidacies prior to the imposition of reasonable restrictions on ballot access. . . . To require States to prove actual voter confusion, ballot overcrowding, or the presence of frivolous candidacies as a predicate to the imposition of reasonable ballot access restrictions would invariably lead to endless court battles over the sufﬁciency of the “evidence” marshaled by a State to prove the predicate. Such a requirement would necessitate that a State’s political system sustain some level of damage before the legislature could take corrective action. Legislatures, we think, should be permitted to respond to potential deﬁciencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not signiﬁcantly impinge on constitutionally protected rights. In any event, the record here suggests that revision of 29.18.110 was, in fact, linked to the state legislature’s perception that the general election ballot was becoming cluttered with candidates from minor parties who did not command signiﬁcant voter support. In 1976, one year prior to revision of 29.18.110, the largest number of minor political parties in Washington’s history—12—appeared on the general election ballot. The record demonstrates that at least part of the legislative impetus for revision of 29.18.110 was concern about minor parties having such easy access to Washington’s general election ballot. The primary election in Washington, like its counterpart in California, is “an integral part of the entire election process . . . [that] functions to winnow out and ﬁnally reject all but the chosen candidates.” We think that the State can properly reserve the general election ballot “for major struggles,” by conditioning access to

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that ballot on a showing of a modicum of voter support. In this respect, the fact that the State is willing to have a long and complicated ballot at the primary provides no measure of what it may require for access to the general election ballot. The State of Washington was clearly entitled to raise the ante for ballot access, to simplify the general election ballot, and to avoid the possibility of unrestrained factionalism at the general election. See id., at 736. Neither do we agree with the Court of Appeals and appellees that the burdens imposed on appellees’ First Amendment rights by the 1977 amendments are far too severe to be justiﬁed by the State’s interest in restricting access to the general ballot. . . . Appellees urge that this case differs substantially from our previous cases because requiring primary votes to qualify for a position on the general election ballot is qualitatively more restrictive than requiring signatures on a nominating petition. In effect, their submission would foreclose any use of the primary election to determine a minor party’s qualiﬁcation for the general ballot. We are unpersuaded, however, that the differences between the two mechanisms are of constitutional dimension. Because Washington provides a “blanket primary,” minor-party candidates can campaign among the entire pool of registered voters. Effort and resources that would otherwise be directed at securing petition signatures can instead be channeled into campaigns to “get the vote out,” foster candidate name recognition, and educate the electorate. To be sure, candidates must demonstrate, through their ability to secure votes at the primary election, that they enjoy a modicum of community support in order to advance to the general election. But requiring candidates to demonstrate such support is precisely what we have held States are permitted to do. Appellees argue that voter turnout at primary elections is generally lower than the turnout at general elections, and therefore enactment of 29.18.110 has reduced the pool of potential supporters from which Party candidates can secure 1% of the vote. We perceive no more force to this argument than we would with an argument by a losing candidate that his supporters’ constitutional rights were infringed by their failure to participate in the election. Washington has created no impediment to voting at the primary elections; every supporter of the Party in the State is free to cast his or her ballot for the Party’s candidates. . . . We also observe that 29.18.110 is more accommodating of First Amendment rights and values than were the statutes we upheld in Jenness, American Party, and Storer. Under each scheme analyzed in those cases, if a candidate failed to satisfy the qualifying criteria, the State’s voters had no opportunity to cast a ballot for that candidate and the candidate had no ballot-connected campaign platform from which to espouse his or her views; the unsatisﬁed qualifying criteria served as an absolute bar to ballot access. Undeniably, such restrictions raise concerns of constitutional dimension, for the “exclusion of candidates . . . burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day. . . .” Anderson v. Celebrezze. Here, however, Washington virtually guarantees what the parties challenging the Georgia, Texas, and California election laws so vigorously sought—candidate access to a statewide ballot. This is a signiﬁcant difference. Washington has chosen a vehicle by which minor-party candidates must demonstrate voter support that serves to promote the very First Amendment values that are threatened by overly burdensome ballot access restrictions. It can hardly be said that Washington’s voters are denied freedom of association because they must

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channel their expressive activity into a campaign at the primary as opposed to the general election. It is true that voters must make choices as they vote at the primary, but there are no state-imposed obstacles impairing voters in the exercise of their choices. Washington simply has not substantially burdened the “availability of political opportunity.” Lubin v. Panish (1974). . . . The judgment of the Court of Appeals for the Ninth Circuit is therefore reversed. It is so ordered.

ANALYSIS In 1977 Washington State amended its election laws to add a step for minor party candidates to gain access to the general election ballot. Previously, minor parties were permitted to nominate candidates at conventions held on the same day as its major parties’ blanket primary. Candidates were then placed on the general election ballot as long as the nominating petition was signed by 100 registered voters who had not voted in the primary. However, the election code was amended to require minor party nominees to also receive at least 1 percent of all votes cast for that ofﬁce in the primary. At a special election to ﬁll an open U.S. Senate seat in 1983, Dean Peoples was nominated by the Socialist Workers Party but failed to receive 1 percent of the vote in the primary. Peoples, the Socialist Workers Party, and two voters challenged the amended law’s constitutionality, alleging that it violated their rights to speech and association under the First Amendment. The district court ruled in favor of the state, while the Ninth Circuit Court of Appeals reversed, holding that the law was unconstitutional. The U.S. Supreme Court voted 7–2 to uphold Washington’s election law. Writing for the majority, Justice White argued that the Court’s precedents, mainly Jenness v. Fortson (1971) (see document), made it clear that a state “may condition access to the general election ballot by a minor party or independent candidate upon a showing of a modicum of support among the potential voters for the ofﬁce.” Therefore, it was perfectly reasonable for the state to reserve the general election ballot for those candidates that had demonstrated minimum electoral support. In support of its new law, Washington maintained that it sought to avoid ballot overcrowding, voter confusion, and frivolous candidacies. However, the state never presented empirical evidence to support its contentions. In fact, as noted in Justice Marshall’s dissent, ballot overcrowding and voter confusion were never a problem before 1977, and overcrowding occurred only after the new law. For example, rather than being placed on a general election ballot with two other candidates, Peoples was 1 of 32 other candidates on the primary ballot. However, Justice White rescued the statute and dismissed the lack of empirical evidence by claiming that future legal battles should not be fought over the “sufﬁciency of the evidence” proffered by a state and by noting that a state can anticipate “potential deﬁciencies” in the electoral process. Finally, the majority opinion argued that even with the amended ballot access law, Washington had not created an “insuperable barrier to minor party candidates” and had not interfered with minor parties’ associational rights. Minor party supporters

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“can still channel their expressive activity into a campaign at the primary” and minor party candidates retained reasonable access to the general election ballot. As mentioned above, Justice Marshall ﬁled a detailed, lengthy, dissenting opinion, joined by Justice Brennan, which challenged the majority’s reasoning. First, the dissenters chastised the majority for failing to articulate clearly what standard it was applying and argued that the probable reason for such an oversight was that the Court had previously required states to justify burdensome ballot access provisions with a compelling interest that was narrowly tailored to achieve the stated objective. Applying this standard, Justice Marshall argued, would mean striking down Washington’s provision. Second, Justice Marshall maintained that the Court’s faulty decision was predicated on a “fundamental misconception of the role minor parties play in our constitutional scheme.” While the majority opinion presumed that minor party candidates only desired electoral success, Justice Marshall argued that, historically, minor parties also sought inﬂuence and access to the political debate, and under the new state law, they were less likely to play such an important role. Under the new state electoral scheme, minor parties’ contribution to the marketplace of ideas was minimized. Finally, as previously noted, Justices Marshall and Brennan expressed deep skepticism in the state’s asserted interests in preventing ballot overcrowding and voter confusion. After all, if general election ballot overcrowding was not a problem before 1977, why was it more likely now? If a plethora of candidates on a ballot was a major concern, why was Washington not distressed with the 33 candidates on the primary ballot? The dissenters believed the answer was that the two major parties that controlled the state legislature wanted to protect themselves from meaningful competition. The courts were well-suited, independent institutions for assessing the states’ valid interests, and when states passed ballot access laws to discriminate against minor parties out of fear of competition, the courts should declare them unconstitutional. Munro v. Socialist Workers Party (1986) was an important case in the development of election law. In the Supreme Court’s ﬁrst foray into ballot access law, Williams v. Rhodes (1968) (see document), the Court struck down an Ohio law that had the effect of keeping independent candidates off the presidential ballot. Beginning with Jenness v. Fortson (1971), the Court softened its views on restrictive ballot access laws by allowing states to require minor parties to prove that they enjoyed a “modicum of support” before being placed on the ballot. However, Munro stands out among these cases for the Court’s clear statement that states need not provide empirical evidence for their interests to justify restrictions, such as avoiding ballot overcrowding and voter confusion.

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• Document: Davis v. Bandemer, 478 U.S. 109 (1986) • Date: Decided June 30, 1986 • Signiﬁcance: At issue in Davis v. Bandemer (1986) was whether an Indiana political gerrymander ostensibly beneﬁting the Republican Party violated the 14th Amendment equal protection rights of Indiana Democrats. While a majority of the Court ruled that the Equal Protection Clause was not violated, the underlying issue in the case was whether courts could accept political gerrymandering cases. While a majority of the justices ruled that political gerrymandering cases were justiciable, federal courts subsequently engaged in an elusive search for a reasoned and fair standard to apply.

DOCUMENT Davis v. Bandemer, 478 U.S. 109 (1986) Justice White delivered the opinion of the Court with Justices Brennan, Marshall, and Blackmun joining in Parts I, III, and IV In this case, we review a judgment from a three-judge District Court, which sustained an equal protection challenge to Indiana’s 1981 state apportionment on the basis that the law unconstitutionally diluted the votes of Indiana Democrats. Although we ﬁnd such political gerrymandering to be justiciable, we conclude that the District Court applied an insufﬁciently demanding standard in ﬁnding unconstitutional vote dilution. Consequently, we reverse.

I The Indiana Legislature, also known as the “General Assembly,” consists of a House of Representatives and a Senate. There are 100 members of the House of 220

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Representatives, and 50 members of the Senate. The members of the House serve 2-year terms, with elections held for all seats every two years. The members of the Senate serve 4-year terms, and Senate elections are staggered so that half of the seats are up for election every two years. The members of both Houses are elected from legislative districts; but, while all Senate members are elected from single-member districts, House members are elected from a mixture of single-member and multimember districts. The division of the State into districts is accomplished by legislative enactment, which is signed by the Governor into law. Reapportionment is required every 10 years and is based on the federal decennial census. There is no prohibition against more frequent reapportionments. In early 1981, the General Assembly initiated the process of reapportioning the State’s legislative districts pursuant to the 1980 census. At this time, there were Republican majorities in both the House and the Senate, and the Governor was Republican. Bills were introduced in both Houses, and a reapportionment plan was duly passed and approved by the Governor. This plan provided 50 single-member districts for the Senate; for the House, it provided 7 triple-member, 9 double-member, and 61 single-member districts. In the Senate plan, the population deviation between districts was 1.15%; in the House plan, the deviation was 1.05%. The multimember districts generally included the more metropolitan areas of the State, although not every metropolitan area was in a multimember district. Marion County, which includes Indianapolis, was combined with portions of its neighboring counties to form ﬁve triple-member districts. Fort Wayne was divided into two parts, and each part was combined with portions of the surrounding county or counties to make two triplemember districts. On the other hand, South Bend was divided and put partly into a double-member district and partly into a single-member district (each part combined with part of the surrounding county or counties). Although county and city lines were not consistently followed, township lines generally were. The two plans, the Senate and the House, were not nested; that is, each Senate district was not divided exactly into two House districts. There appears to have been little relation between the lines drawn in the two plans. In early 1982, this suit was ﬁled by several Indiana Democrats (here the appellees) against various state ofﬁcials (here the appellants), alleging that the 1981 reapportionment plans constituted a political gerrymander intended to disadvantage Democrats. Speciﬁcally, they contended that the particular district lines that were drawn and the mix of single-member and multimember districts were intended to and did violate their right, as Democrats, to equal protection under the Fourteenth Amendment. A three-judge District Court was convened to hear these claims. In November 1982, before the case went to trial, elections were held under the new districting plan. All of the House seats and half of the Senate seats were up for election. Over all the House races statewide, Democratic candidates received 51.9% of the vote. Only 43 Democrats, however, were elected to the House. Over all the Senate races statewide, Democratic candidates received 53.1% of the vote. Thirteen (of twenty-ﬁve) Democrats were elected. In Marion and Allen Counties, both divided into multimember House districts, Democratic candidates drew 46.6% of the vote, but only 3 of the 21 House seats were ﬁlled by Democrats. On December 13, 1984, a divided District Court issued a decision declaring the reapportionment to be unconstitutional, enjoining the appellants from holding

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elections pursuant to the 1981 redistricting, ordering the General Assembly to prepare a new plan, and retaining jurisdiction over the case. To the District Court majority, the results of the 1982 elections seemed “to support an argument that there is a built-in bias favoring the majority party, the Republicans, which instituted the reapportionment plan.” Although the court thought that these ﬁgures were unreliable predictors of future elections, it concluded that they warranted further examination of the circumstances surrounding the passage of the reapportionment statute. In the course of this further examination, the court noted the irregular shape of some district lines, the peculiar mix of single-member and multimember districts, and the failure of the district lines to adhere consistently to political subdivision boundaries to deﬁne communities of interest. The court also found inadequate the other explanations given for the conﬁguration of the districts, such as adherence to the one person, one vote imperative and the Voting Rights Act’s no retrogression requirement. These factors, concluded the court, evidenced an intentional effort to favor Republican incumbents and candidates and to disadvantage Democratic voters. This was achieved by “stacking” Democrats into districts with large Democratic majorities and “splitting” them in other districts so as to give Republicans safe but not excessive majorities in those districts. Because the 1982 elections indicated that the plan also had a discriminatory effect in that the proportionate voting inﬂuence of Democratic voters had been adversely affected and because any scheme “which purposely inhibit[s] or prevent[s] proportional representation cannot be tolerated,” id., at 1492, the District Court invalidated the statute. The defendants appealed, seeking review of the District Court’s rulings that the case was justiciable and that, if justiciable, an equal protection violation had occurred. We noted probable jurisdiction. . . .

III Having determined that the political gerrymandering claim in this case is justiciable, we turn to the question whether the District Court erred in holding that the appellees had alleged and proved a violation of the Equal Protection Clause.

A Preliminarily, we agree with the District Court that the claim made by the appellees in this case is a claim that the 1981 apportionment discriminates against Democrats on a statewide basis. . . . We also agree with the District Court that in order to succeed the Bandemer plaintiffs were required to prove both intentional discrimination against an identiﬁable political group and an actual discriminatory effect on that group. . . . Further, we are conﬁdent that if the law challenged here had discriminatory effects on Democrats, this record would support a ﬁnding that the discrimination was intentional. Thus, we decline to overturn the District Court’s ﬁnding of discriminatory intent as clearly erroneous. Indeed, quite aside from the anecdotal evidence, the shape of the House and Senate Districts, and the alleged disregard for political boundaries, we think it most likely

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that whenever a legislature redistricts, those responsible for the legislation will know the likely political composition of the new districts and will have a prediction as to whether a particular district is a safe one for a Democratic or Republican candidate or is a competitive district that either candidate might win. . . . As long as redistricting is done by a legislature, it should not be very difﬁcult to prove that the likely political consequences of the reapportionment were intended.

B We do not accept, however, the District Court’s legal and factual bases for concluding that the 1981 Act visited a sufﬁciently adverse effect on the appellees’ constitutionally protected rights to make out a violation of the Equal Protection Clause. . . . Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be. . . . To draw district lines to maximize the representation of each major party would require creating as many safe seats for each party as the demographic and predicted political characteristics of the State would permit. This in turn would leave the minority in each safe district without a representative of its choice. We upheld this “political fairness” approach in Gaffney v. Cummings, despite its tendency to deny safe district minorities any realistic chance to elect their own representatives. But Gaffney in no way suggested that the Constitution requires the approach that Connecticut had adopted in that case. In cases involving individual multimember districts, we have required a substantially greater showing of adverse effects than a mere lack of proportional representation to support a ﬁnding of unconstitutional vote dilution. Only where there is evidence that excluded groups have “less opportunity to participate in the political processes and to elect candidates of their choice” have we refused to approve the use of multimember districts. . . . We have also noted the lack of responsiveness by those elected to the concerns of the relevant groups. These holdings rest on a conviction that the mere fact that a particular apportionment scheme makes it more difﬁcult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally inﬁrm. This conviction, in turn, stems from a perception that the power to inﬂuence the political process is not limited to winning elections. An individual or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to inﬂuence that candidate as other voters in the district. We cannot presume in such a situation, without actual proof to the contrary, that the candidate elected will entirely ignore the interests of those voters. This is true even in a safe district where the losing group loses election after election. Thus, a group’s electoral power is not unconstitutionally diminished by the simple fact of an apportionment scheme that makes winning elections more difﬁcult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause. As with individual districts, where unconstitutional vote dilution is alleged in the form of statewide political gerrymandering, the mere lack of proportional

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representation will not be sufﬁcient to prove unconstitutional discrimination. Again, without speciﬁc supporting evidence, a court cannot presume in such a case that those who are elected will disregard the disproportionately underrepresented group. Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ inﬂuence on the political process as a whole. Although this is a somewhat different formulation than we have previously used in describing unconstitutional vote dilution in an individual district, the focus of both of these inquiries is essentially the same. In both contexts, the question is whether a particular group has been unconstitutionally denied its chance to effectively inﬂuence the political process. In a challenge to an individual district, this inquiry focuses on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly inﬂuence the election returns and to secure the attention of the winning candidate. Statewide, however, the inquiry centers on the voters’ direct or indirect inﬂuence on the elections of the state legislature as a whole. And, as in individual district cases, an equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to inﬂuence the political process effectively. In this context, such a ﬁnding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to inﬂuence the political process. Based on these views, we would reject the District Court’s apparent holding that any interference with an opportunity to elect a representative of one’s choice would be sufﬁcient to allege or make out an equal protection violation, unless justiﬁed by some acceptable state interest that the State would be required to demonstrate. In addition to being contrary to the above-described conception of an unconstitutional political gerrymander, such a low threshold for legal action would invite attack on all or almost all reapportionment statutes. District-based elections hardly ever produce a perfect ﬁt between votes and representation. The one person, one vote imperative often mandates departure from this result as does the no-retrogression rule required by 5 of the Voting Rights Act. Inviting attack on minor departures from some supposed norm would too much embroil the judiciary in second-guessing what has consistently been referred to as a political task for the legislature, a task that should not be monitored too closely unless the express or tacit goal is to effect its removal from legislative halls. We decline to take a major step toward that end, which would be so much at odds with our history and experience. . . .

IV In sum, we hold that political gerrymandering cases are properly justiciable under the Equal Protection Clause. We also conclude, however, that a threshold showing of discriminatory vote dilution is required for a prima facie case of an equal protection violation. In this case, the ﬁndings made by the District Court of an adverse effect on the appellees do not surmount the threshold requirement. Consequently, the judgment of the District Court is Reversed.

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ANALYSIS DID YOU KNOW?

The U.S. electoral system was modeled after the British, in which legislative districts are distributed geographiA State Cannot Require a Closed Primary Against cally and usually represented by one person. This sysa Party’s Wishes tem is more commonly referred to as a single-member, ﬁrst-past-the-post system, or represented by the canWhat happens if a political party wants to open its primary election to registered independents but the state didate who received the most votes. This system has mandates a closed primary? The Supreme Court adproduced two broad-based political parties. When comdressed this issue in Tashjian v. Republican Party of Conbined with the constitutional requirement to reappornecticut (1986). Voting 5–4, the Court sided with the tion legislative districts after each decennial census, the GOP after weighing the burdens imposed on its First parties in power had an incentive to maximize their fuAmendment rights against the state’s justiﬁcations for ture electoral fortunes by drawing legislative districts the regulation. Because the majority deemed Connecticut’s open most favorable to their interests. The process is called primary ban a signiﬁcant burden on political parties’ political gerrymandering. In Davis v. Bandemer (1986), rights, Connecticut was required to provide compelling the U.S. Supreme Court was asked to decide whether justiﬁcations for its law. Connecticut argued that its open the Constitution permitted federal courts to hear politiprimary ban furthered a number of key interests, includcal gerrymandering claims. ing ensuring that the primary system was administered In 1981 the Republican-dominated Indiana general smoothly, preventing party raiding, avoiding voter confusion, and protecting responsible party government. assembly began its reapportionment after the 1980 cenWriting for the majority, Justice Marshall rejected the sus. The reapportionment plan approved by both houses state’s arguments, claiming that each justiﬁcation was provided 50 single-member districts for its state senate insufﬁciently compelling. and 7 triple-member, 9 double-member, and 61 singleWriting for three of the four dissenting justices, Jusmember districts for its general assembly. Generally, the tice Scalia contended that the Court’s majority had overmultimember districts were located in Indiana’s metrostated political parties’ associational rights, because an politan areas. In early 1982 several Indiana Democrats ﬁled suit against state ofﬁcials, maintaining that the new reapportionment plans were designed to weaken the electoral fortunes of Democrats and, therefore, violated the 14th Amendment’s Equal Protection Clause. Before the case went to trial, elections were held in November 1982, in which Democrats fared poorly, receiving 51.9 percent of the statewide vote in general assembly races but gained only 43 percent of the seats. In the state senate races, Democrats received 53.1 percent of the statewide vote and were victorious in 13 of the 25 open races. At trial, a divided district court declared the new reapportionment plan unconstitutional, citing the “built-in bias favoring the majority party, the Republicans.” The judges noted the odd shape of some district lines and concluded that the state had failed to abide by the “one person, one vote imperative.” The district court maintained that the Republicans had done this by “stacking” Democrats into districts with large Democratic majorities as well as “splitting” them across other districts to ensure that Republicans had safe districts. Writing for a four-member plurality, Justice White concluded that while the political gerrymandering claim was justiciable, the Indiana Democrats failed to demonstrate that the reapportionment had a “sufﬁciently adverse effect” on Democrats. First, Justice White argued that the Constitution did not require states to adopt proportional representation or that the party composition of the legislative branch must equal what “their anticipated statewide vote will be.” Second, Justice White explained that for multimember districts the Court had required “a substantially greater

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Incumbents and Redistricting, a cartoon by Jeff Parker. Politics inﬂuences redistricting in many states, creating safe congressional seats and insulating incumbents from serious electoral competition. (© 2010 Jeff Parker, Florida Today, and PoliticalCartoons.com. Courtesy of Cagle Cartoons, Inc.)

showing of adverse effects than a mere lack of proportional representation to support a ﬁnding of unconstitutional vote dilution.” Indiana Democrats had not demonstrated a diminished opportunity to participate in the political process, as the law required. Likewise, in individual districts, the aggrieved party must demonstrate an injury beyond “the mere lack of proportional representation” in order to prove unconstitutional vote dilution. Based on these two legal rules, the district court incorrectly ruled in favor of the plaintiff. Justice O’Connor wrote a concurring opinion, with which Chief Justice Burger and Justice Rehnquist joined. While Justice O’Connor agreed that there were no Equal Protection Clause violations, she criticized the plurality for concluding that there is a “judicially manageable standard” for adjudicating political gerrymandering claims. Justice O’Connor cautioned the Court in thinking that it could resolve or manage an “intractable” political issue. As long as politicians were given responsibility for reapportioning legislative districts, the process will be politicized. Redistricting is especially important to campaigns

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and elections because it “turns the traditional deﬁnition of democracy on its head: rather than allowing voters DID YOU KNOW? to choose their leaders, it allows leaders to choose their voters.”1 Politicians, therefore, use redistricting to creindependent voter who did not want to register with a ate “safe seats” and to insulate their party from as much party “forms no more meaningful an ‘association’ with competition as possible. As the courts wrestled with the Party than does the independent or the registered whether the Constitution permitted states to use race Democrat who responds to questions by a Republican Party pollster.” On the other hand, registered Republias a factor in drawing district boundaries (see Shaw v. cans’ associational freedoms were harmed, because Reno [1993] and its progeny cases), lower courts were their votes were diluted by voters unwilling to register wrestling with what standard to apply in adjudicating with the party but who still wanted to participate in its political gerrymandering cases. primary. In short, the dissenters argued that if the state To provide clarity, the Supreme Court accepted Vieth can impose a primary, it can also require that the priv. Jubilerer (2004), a political gerrymandering dispute mary follow certain democratic procedures. In Tashjian, the Court continued its expansion of pofrom Pennsylvania stemming from the 2000 census. The litical parties’ associational freedoms begun in the midjustices divided once again on the justiciability question, 1970s. Under the rule announced in this decision, a with four justices claiming that the courts could never state cannot deny to political parties the right to open arrive at a “judicially manageable standard,” four justheir primaries to independents. However, in 2005 in tices believing that courts could resolve these disputes, Clingman v. Beaver, the Court rejected a legal effort and Justice Kennedy providing the ﬁfth and decisive brought on behalf of Oklahoma’s Libertarian Party to extend Tashjian’s logic and strike down state laws that forvote by arguing that, although not clearly formulated bade parties from opening their primaries to members of at the time of his writing, it was theoretically possible other political parties. for the Court to create a “judicially manageable standard” for political gerrymandering cases. Therefore, current law is that state legislatures can engage in political gerrymandering, but challenges can be heard by courts in hope of ﬁnding a standard that can be applied faithfully in future cases.

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• Document: Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 • Date: Decided March 27, 1990 • Signiﬁcance: The Michigan State Chamber of Commerce, a nonproﬁt corporation, ﬁled suit claiming that section 54(1) of the Michigan Campaign Finance Act, which prohibited corporations from using general treasury funds for independent expenditures in state elections, violated its First Amendment rights. By a vote of 6–3, the U.S. Supreme Court upheld the law, noting the “corrosive and distorting effects of immense aggregations of wealth” in the political process. Austin was eventually overturned in Citizens United v. FEC (2010).

DOCUMENT Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) Justice Marshall delivered the opinion of the Court In this appeal, we must determine whether 54(1) of the Michigan Campaign Finance Act violates either the First or the Fourteenth Amendment to the Constitution. Section 54(1) prohibits corporations from using corporate treasury funds for independent expenditures in support of, or in opposition to, any candidate in elections for state ofﬁce. Mich. Comp. Laws 169.254(1) (1979). Corporations are allowed, however, to make such expenditures from segregated funds used solely for political purposes. In response to a challenge brought by the Michigan State Chamber of Commerce (Chamber), the Sixth Circuit held that 54(1) could not be applied to the Chamber, a Michigan nonproﬁt corporation, without violating the First Amendment. Although we agree that expressive rights are implicated in this case, we hold 228

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that application of 54(1) to the Chamber is constitutional because the provision is narrowly tailored to serve a compelling state interest. . . .

I Section 54(1) of the Michigan Campaign Finance Act prohibits corporations from making contributions and independent expenditures in connection with state candidate elections. The issue before us is only the constitutionality of the State’s ban on independent expenditures. The Act deﬁnes “expenditure” as “a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate.” 169.206(1). An expenditure is considered independent if it is “not made at the direction of, or under the control of, another person and if the expenditure is not a contribution to a committee.” 169.209(1). . . . The Act exempts from this general prohibition against corporate political spending any expenditure made from a segregated fund. 169.255(1). A corporation may solicit contributions to its political fund only from an enumerated list of persons associated with the corporation. . . . The Chamber, a nonproﬁt Michigan corporation, challenges the constitutionality of this statutory scheme. The Chamber comprises more than 8,000 members, three-quarters of whom are for-proﬁt corporations. The Chamber’s general treasury is funded through annual dues required of all members. Its purposes, as set out in the bylaws, are to promote economic conditions favorable to private enterprise; to analyze, compile, and disseminate information about laws of interest to the business community and to publicize to the government the views of the business community on such matters; to train and educate its members; to foster ethical business practices; to collect data on, and investigate matters of, social, civic, and economic importance to the State; to receive contributions and to make expenditures for political purposes and to perform any other lawful political activity; and to coordinate activities with other similar organizations. In June 1985 Michigan scheduled a special election to ﬁll a vacancy in the Michigan House of Representatives. Although the Chamber had established and funded a separate political fund, it sought to use its general treasury funds to place in a local newspaper an advertisement supporting a speciﬁc candidate. As the Act made such an expenditure punishable as a felony, see 169.254(5), the Chamber brought suit in District Court for injunctive relief against enforcement of the Act, arguing that the restriction on expenditures is unconstitutional under both the First and the Fourteenth Amendments. The District Court upheld the statute. 643 F. Supp. 397 (WD Mich. 1986). The Sixth Circuit reversed, reasoning that the expenditure restriction, as applied to the Chamber, violated the First Amendment. We noted probable jurisdiction and now reverse.

II To determine whether Michigan’s restriction on corporate political expenditures may constitutionally be applied to the Chamber, we must ascertain whether it burdens the exercise of political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest. Buckley v. Valeo, 424 U.S. 1, 44-45

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(1976) (per curiam). Certainly, the use of funds to support a political candidate is “speech”; independent campaign expenditures constitute “political expression ‘at the core of our electoral process and of the First Amendment freedoms.’ ” The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment. . . .

A This Court concluded in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL), that a federal statute requiring corporations to make independent political expenditures only through special segregated funds, 2 U.S.C. 441b, burdens corporate freedom of expression. . . . The Court reasoned that the small nonproﬁt corporation in that case would face certain organizational and ﬁnancial hurdles in establishing and administering a segregated political fund. For example, the statute required the corporation to appoint a treasurer for its segregated fund, keep records of all contributions, ﬁle a statement of organization containing information about the fund, and update that statement periodically. In addition, the corporation was permitted to solicit contributions to its segregated fund only from “members,” which did not include persons who merely contributed to or indicated support for the organization. These hurdles “impose[d] administrative costs that many small entities [might] be unable to bear” and “create[d] a disincentive for such organizations to engage in political speech.” Despite the Chamber’s success in administering its separate political fund (Chamber expected to have over $140,000 in its segregated fund available for use in the 1986 elections), Michigan’s segregated fund requirement still burdens the Chamber’s exercise of expression because “the corporation is not free to use its general funds for campaign advocacy purposes.” MCFL, at 252 (plurality opinion). The Act imposes requirements similar to those in the federal statute involved in MCFL: a segregated fund must have a treasurer, 169.221; and its administrators must keep detailed accounts of contributions, 169.224, and ﬁle with state ofﬁcials a statement of organization, ibid. In addition, a nonproﬁt corporation like the Chamber may solicit contributions to its political fund only from members, stockholders of members, ofﬁcers or directors of members, and the spouses of any of these persons. 169.255. Although these requirements do not stiﬂe corporate speech entirely, they do burden expressive activity. . . . Thus, they must be justiﬁed by a compelling state interest.

B The State contends that the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption. . . . State law grants corporations special advantages— such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets—that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments. These state-created advantages not only allow corporations to play a dominant role in the Nation’s economy, but also permit them to use “resources amassed in the economic marketplace” to obtain “an unfair advantage in the political marketplace.” MCFL, 479 U.S., at 257. . . .

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We therefore have recognized that “the compelling governmental interest in preventing corruption support[s] the restriction of the inﬂuence of political war chests funneled through the corporate form.” NCPAC, supra, at 500–501; see also MCFL, supra, at 257. The Chamber argues that this concern about corporate domination of the political process is insufﬁcient to justify a restriction on independent expenditures. Although this Court has distinguished these expenditures from direct contributions in the context of federal laws regulating individual donors, Buckley, 424 U.S., at 47, it has also recognized that a legislature might demonstrate a danger of real or apparent corruption posed by such expenditures when made by corporations to inﬂuence candidate elections, Bellotti at 788, n. 26. Regardless of whether this danger of “ﬁnancial quid pro quo” corruption, see NCPAC, at 497; at 702–705 (KENNEDY, J., dissenting), may be sufﬁcient to justify a restriction on independent expenditures, Michigan’s regulation aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas. The Act does not attempt “to equalize the relative inﬂuence of speakers on elections”; . . . rather, it ensures that expenditures reﬂect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations. may accumulate large amounts of wealth is not the justiﬁcation for 54; rather, 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. We therefore hold that the State has articulated a sufﬁciently compelling rationale to support its restriction on independent expenditures by corporations.

C We next turn to the question whether the Act is sufﬁciently narrowly tailored to achieve its goal. We ﬁnd that the Act is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views. Contrary to the dissents’ critical assumptions . . . the Act does not impose an absolute ban on all forms of corporate political spending but permits corporations to make independent political expenditures through separate segregated funds. Because persons contributing to such funds understand that their money will be used solely for political purposes, the speech generated accurately reﬂects contributors’ support for the corporation’s political views. . . .

VI Michigan identiﬁed as a serious danger the signiﬁcant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem. By requiring corporations to make all independent political expenditures through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of

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favorable state laws will be used to inﬂuence unfairly the outcome of elections. The Michigan Chamber of Commerce does not exhibit the characteristics identiﬁed in MCFL that would require the State to exempt it from a generally applicable restriction on independent corporate expenditures. We therefore reverse the decision of the Court of Appeals. It is so ordered.

ANALYSIS In a controversial decision, the Supreme Court in Austin v. Michigan Chamber of Congress (1990) upheld a Michigan law that prohibited corporations from spending general treasury funds to urge the support or defeat of state candidates. Austin had been subject to blistering criticism on many fronts, including its seeming inconsistencies with Buckley v. Valeo (1976) (see document), First National Bank of Boston v. Bellotti (1978) (see document), and Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) and for the formulation of a new deﬁnition of corruption. Austin was eventually reversed in Citizens United v. Federal Election Commission (2010) (see document). In Buckley v. Valeo (1976) (see document), the U.S. Supreme Court partially upheld the 1974 amendments to the 1971 Federal Election Campaign Act (see document). While the Court upheld the act’s contribution limits, the justices struck down the act’s campaign expenditure ceilings, as well as the $1,000 limit imposed on independent expenditures. Two years later, in First National Bank of Boston v. Bellotti (1978), a divided Supreme Court struck down a Massachusetts criminal provision that prohibited corporations from spending money to inﬂuence voters during statewide referenda. Almost a decade later, in Federal Election Commission v. Massachusetts Citizens for Life (1986), a unanimous Court declared unconstitutional section 316 of the FECA as applied to nonproﬁt organizations, a provision that prohibited groups from spending general treasury funds on campaigns. The Court ruled that section 316 imposed signiﬁcant restrictions on nonproﬁt corporations’ free speech rights. Massachusetts Citizens for Life was also the last campaign ﬁnance case heard before the Court decided Austin. The Michigan State Chamber of Commerce, a nonproﬁt corporation, sought to place a newspaper advertisement in support of a particular candidate for statewide ofﬁce. Unfortunately, section 54(1) of the Michigan Campaign Finance Act speciﬁcally prohibited corporations from using general treasury funds to pay for independent expenditures during state campaigns. The Michigan State Chamber of Commerce sought injunctive relief, arguing that section 54(1) violated corporations’ First Amendment freedoms without any compelling governmental reason. The federal district court upheld the law, while the Sixth Circuit Court of Appeals reversed, agreeing with the chamber that the law burdened fundamental First Amendment rights. The U.S. Supreme Court sided 6–3 in favor of Michigan. Writing for the majority, Justice Marshall couched his analysis in the context of corporations’ “unique legal and economic characteristics.” Because the state provided special beneﬁts to corporations, Justice Marshall reasoned, corporations enjoyed a privileged position not only in the U.S. economy but also in politics. The “aggregated wealth” that

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corporations can accumulate under state law gave those same corporations an “unfair advantage” in the political sphere. The protection of the political realm from the distorting effects of large corporate wealth, therefore, was a compelling interest that justiﬁed Michigan’s restriction. What was most striking about Justice Marshall’s majority opinion in Austin was the broader deﬁnition of corruption than what the Court had previously articulated. Before Austin the Court deﬁned corruption as quid pro quo arrangements, for example, contributors offering money in exchange for special beneﬁts. However, Justice Marshall noted that the Michigan law was aimed at a “different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” The Michigan law was also narrowly tailored to reduce corruption, Justice Marshall contended, because corporations were still permitted to contribute to candidates through separate, segregated political funds (PACs), whose donations were gleaned from members who shared a PAC’s views. Writing in dissent, Justice Scalia mocked the Court’s opinion for “combining two bad arguments” in attempt to make one good one. While corporations enjoyed special privileges from the state, other individuals and groups obtained privileged status, for example, by receiving cash subsidies and tax breaks. The state cannot force these groups to forfeit their First Amendment free speech rights in exchange. Second, while corporations did “amass large treasuries,” it was no more constitutional for the state to prohibit them from endorsing candidates than it would be if the state prohibited individuals earning over a speciﬁed dollar amount from endorsing candidates. Justice Scalia also criticized the Court’s majority for its malleable new corruption test. Quid pro quo arrangements are easy to prove compared to a standard that examined the “corrosive and distorting effects of wealth” on the political system. Using this standard allowed the Court to declare whatever activities it disproved of as “corrosive,” Justice Scalia warned. While Austin remained good law for two decades, its broad deﬁnition of “corruption” served as an outlier in campaign ﬁnance jurisprudence that future courts never followed with consistency and precision. Finally, in Citizens United v. Federal Election Commission (2010) (see document) the Supreme Court overturned Austin, ruling that the First Amendment allows corporations to spend unlimited money from their general treasury funds on independent expenditures.

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• Document: Shaw v. Reno, 509 U.S. 630 (1993) • Date: Decided June 28, 1993 • Signiﬁcance: In Shaw v. Reno the Supreme Court ruled that racial gerrymandering can be challenged under the 14th Amendment’s Equal Protection Clause. In a dispute from North Carolina, the Court ruled that two majority-minority districts created by the legislature ran afoul of the 14th Amendment, because North Carolina engaged in a kind of racial apartheid, separating citizens into congressional districts with race the sole criterion.

DOCUMENT Shaw v. Reno, 509 U.S. 630 (1993) Justice O’Connor delivered the opinion of the Court This case involves two of the most complex and sensitive issues this Court has faced in recent years: the meaning of the constitutional “right” to vote, and the propriety of race-based state legislation designed to beneﬁt members of historically disadvantaged racial minority groups. As a result of the 1990 census, North Carolina became entitled to a 12th seat in the United States House of Representatives. The General Assembly enacted a reapportionment plan that included one majority-black congressional district. After the Attorney General of the United States objected to the plan pursuant to 5 of the Voting Rights Act of 1965 . . . the General Assembly passed new legislation creating a second majority-black district. Appellants allege that the revised plan, which contains district boundary lines of dramatically irregular shape, constitutes an unconstitutional racial gerrymander. The question before us is whether appellants have stated a cognizable claim.

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I The voting age population of North Carolina is approximately 78% white, 20% black, and 1% Native American; the remaining 1% is predominantly Asian. App. to Brief for Federal Appellees 16a. The black population is relatively dispersed; blacks constitute a majority of the general population in only 5 of the State’s 100 counties. . . . Geographically, the State divides into three regions: the eastern Coastal Plain, the central Piedmont Plateau, and the western mountains. . . . The largest concentrations of black citizens live in the Coastal Plain, primarily in the northern part. . . . The General Assembly’s ﬁrst redistricting plan contained one majorityblack district centered in that area of the State. Forty of North Carolina’s one hundred counties are covered by 5 of the Voting Rights Act of 1965 . . . which prohibits a jurisdiction subject to its provisions from implementing changes in a “standard, practice, or procedure with respect to voting” without federal authorization. The jurisdiction must obtain either a judgment from the United States District Court for the District of Columbia declaring that the proposed change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” or administrative preclearance from the Attorney General. Because the General Assembly’s reapportionment plan affected the covered counties, the parties agree that 5 applied. . . . The State chose to submit its plan to the Attorney General for preclearance. The Attorney General. . . . interposed a formal objection to the General Assembly’s plan. The Attorney General speciﬁcally objected to the conﬁguration of boundary lines drawn in the south-central to southeastern region of the State. In the Attorney General’s view, the General Assembly could have created a second majorityminority district “to give effect to black and Native American voting strength in this area” by using boundary lines “no more irregular than [those] found elsewhere in the proposed plan,” but failed to do so. . . . The ﬁrst of the two majority-black districts contained in the revised plan, District 1, is somewhat hook shaped. Centered in the northeast portion of the State, it moves southward until it tapers to a narrow band; then, with ﬁnger-like extensions, it reaches far into the southern-most part of the State near the South Carolina border. District 1 has been compared to a “Rorschach inkblot test,” Shaw v. Barr, 808 F. Supp. 461, 476 (EDNC 1992) (Voorhees, C.J., concurring in part and dissenting in part), and a “bug splattered on a windshield,” Wall Street Journal, Feb. 4, 1992, p. A14. The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the I-85 corridor. It winds in snake like fashion through tobacco country, ﬁnancial centers, and manufacturing areas “until it gobbles in enough enclaves of black neighborhoods.” 808 F. Supp., at 476–477 (Voorhees, C.J., concurring in part and dissenting in part). Northbound and southbound drivers on I-85 sometimes ﬁnd themselves in separate districts in one county, only to “trade” districts when they enter the next county. Of the 10 counties through which District 12 passes, 5 are cut into 3 different districts; even towns are divided. At one point, the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. See Brief for Republican National Committee as Amicus Curiae 14–15. One state legislator has remarked that “ ‘[i]f you drove down the interstate with both car doors open, you’d kill most of the people in the district.’ ” Washington Post

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Apr. 20, 1993, p. A4. The district even has inspired poetry: “Ask not for whom the line is drawn; it is drawn to avoid thee.” Grofman, Would Vince Lombardi Have Been Right If He Had Said: “When It Comes to Redistricting, Race Isn’t Everything, It’s the Only Thing”?, 14 Cardozo L.Rev. 1237, 1261, n. 96 (1993) (internal quotation marks omitted). The Attorney General did not object to the General Assembly’s revised plan. But numerous North Carolinians did. The North Carolina Republican Party and individual voters brought suit in Federal District Court, alleging that the plan constituted an unconstitutional political gerrymander under Davis v. Bandemer, 478 U.S. 109 (1986). . . . Appellants contended that the General Assembly’s revised reapportionment plan violated several provisions of the United States Constitution, including the Fourteenth Amendment. They alleged that the General Assembly deliberately “create[d] two Congressional Districts in which a majority of black voters was concentrated arbitrarily—without regard to any other considerations, such as compactness, contiguousness, geographical boundaries, or political subdivisions” with the purpose “to create Congressional Districts along racial lines” and to assure the election of two black representatives to Congress. . . .

III A The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amdt. 14, 1. Its central purpose is to prevent the States from purposefully discriminating between individuals on the basis of race. . . . Laws that explicitly distinguish between individuals on racial grounds fall within the core of that prohibition. . . . Classiﬁcations of citizens solely on the basis of race “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U.S. 81 (1943). . . . They threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility. . . . Accordingly, we have held that the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental interest. . . . These principles apply not only to legislation that contains explicit racial distinctions, but also to those “rare” statutes that, although race neutral, are, on their face, “unexplainable on grounds other than race.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). . . .

B Appellants contend that redistricting legislation that is so bizarre on its face that it is “unexplainable on grounds other than race” demands the same close scrutiny that we give other state laws that classify citizens by race. Our voting rights precedents support that conclusion. In Guinn v. United States, 238 U.S. 347 (1915), the Court invalidated under the Fifteenth Amendment a statute that imposed a literacy requirement on voters but contained a “grandfather clause” applicable to individuals and their lineal

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descendants entitled to vote “on [or prior to] January 1, 1866.” Id., at 357 (internal quotation marks omitted). The determinative consideration for the Court was that the law, though ostensibly race neutral, on its face “embod[ied] no exercise of judgment and rest[ed] upon no discernible reason” other than to circumvent the prohibitions of the Fifteenth Amendment. Id., at 363. In other words, the statute was invalid because, on its face, it could not be explained on grounds other than race. The Court applied the same reasoning to the “uncouth twenty-eight-sided” municipal boundary line at issue in Gomillion. Although the statute that redrew the city limits of Tuskegee was race neutral on its face, plaintiffs alleged that its effect was impermissibly to remove from the city virtually all black voters and no white voters. The Court reasoned: “If these allegations upon a trial remained uncontradicted or unqualiﬁed, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their preexisting municipal vote.” 364 U.S., at 341. The majority resolved the case under the Fifteenth Amendment. Justice Whittaker, however, concluded that the “unlawful segregation of races of citizens” into different voting districts was cognizable under the Equal Protection Clause. Id., at 349 (concurring opinion). This Court’s subsequent reliance on Gomillion in other Fourteenth Amendment cases suggests the correctness of Justice Whittaker’s view. . . . Gomillion thus supports appellants’ contention that district lines obviously drawn for the purpose of separating voters by race require careful scrutiny under the Equal Protection Clause regardless of the motivations underlying their adoption. . . . The difﬁculty of proof, of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race. Moreover, it seems clear to us that proof sometimes will not be difﬁcult at all. In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to “segregat[e] . . . voters” on the basis of race. Gomillion, supra, at 341. Gomillion, in which a tortured municipal boundary line was drawn to exclude black voters, was such a case. So, too, would be a case in which a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions. We emphasize that these criteria are important not because they are constitutionally required—they are not . . . —but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines. . . . Put differently, we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live— think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. . . .

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DID YOU KNOW? The 1993 Hatch Act Reform Amendments, PL 103-94 The 1939 Hatch Act, as amended in 1940 (see document), imposed restrictions on federal employees’ ability to participate in political campaigns. Federal employee unions subsequently attempted to weaken the rules but to no avail until 1992. The amendments were signed into law by President Bill Clinton on October 6, 1993, and apply to all appointed executive branch employees as well as those who are hired through the civil service process, that is, merit appointment, and who work in the U.S. Postal Service and for the Postal Rate Commission. District of Columbia employees, but not the mayor or council members, are also included under the act. The president, vice president, employees of the Government Accountability Ofﬁce (GAO), and uniformed members of the armed forces are not covered under the law, but any limitations on their political actions are treated in separate statutes or codes of conduct. Most federal employees are allowed to engage in political campaigns both as volunteers and as campaign managers, assist in voter registration drives, attend fund-raisers, and recruit volunteers for a political campaign, but they may not do so in uniform (if applicable) or as representing their federal position, on government time, and while using government materials or equipment. Federal Bureau of Investigations, Central Intelligence Agency, National Security Agency, National Security Council, Bureau of Alcohol, Tobacco, and Firearms, and other agents involved in law enforcement or national security are not permitted such activities. Federal employees may not directly raise funds, either by personal request or anonymously as members of a phone bank, for partisan political

The message that such districting sends to elected representatives is equally pernicious. When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected ofﬁcials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy. . . . For these reasons, we conclude that a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufﬁcient justiﬁcation. It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether “the intentional creation of majority-minority districts, without more,” always gives rise to an equal protection claim. . . .

V

Racial classiﬁcations of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classiﬁcations with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire. It is for these reasons that race-based districting by our state legislatures demands close judicial scrutiny. In this case, the Attorney General suggested that North Carolina could have created a reasonably compact second majority-minority district in the south-central to southeastern part of the State. We express no view as to whether appellants successfully could have challenged such a district under the Fourteenth Amendment. We also do not decide whether appellants’ complaint stated a claim under constitutional provisions other than the Fourteenth Amendment. Today we hold only that appellants have stated a claim under the Equal Protection Clause by alleging that the North Carolina General Assembly adopted a reapportionment scheme so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufﬁcient justiﬁcation. If the allegation of racial gerrymandering remains uncontradicted, the District

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Court further must determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest. Accordingly, we reverse the judgment of the District Court and remand the case for further proceedings consistent with this opinion. It is so ordered.

ANALYSIS

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DID YOU KNOW? campaigns, allow their names to be used to raise such funds, raise money for their union’s PAC from nonunion people, and seek the nomination of or be a candidate for an elected ofﬁce as a member of a political party. Employees may seek elected ofﬁce in nonpartisan elections, hold leadership positions within campaigns or party organizations, and state publicly their opinions about candidates and public policy issues, including wearing campaign buttons or partisan material on their personal clothing but not while working. Soliciting, accepting, or receiving political contributions by federal employees is forbidden unless the employees request or offer contributions to members of their federal union and if their union has a multicandidate political action committee. An employee may not seek political contributions from any private person or business with whom the employee must interact as part of the employee’s work responsibilities, particularly people or companies seeking government contracts. Representatives, senators and candidates for Congress are forbidden to seek contributions from their staff or any federal employees. Political appointees working in the White House or the executive ofﬁce of the president may contribute to federal elections.

Following the 1990 census, Congress reapportioned House seats, and North Carolina was awarded one new representative. The state legislature redrew its congressional districts accordingly and included one majorityminority seat. It submitted the plan to the Justice Department for preclearance review under section 5 of the 1965 Voting Rights Act. The U.S. attorney general rejected the plan, because it failed to provide a sufﬁcient number of majority-minority districts, districts in which racial minorities, for example, blacks, Asians, and Latinos, had reasonable opportunity to elect a minority member as their representative. In response, the legislature redrew the districts, adding a second majority-minority seat, and the new plan was accepted by Attorney General Janet Reno. Further Reading The 1965 Voting Rights Act was designed to protect Bolton, John R. 1976. The Hatch Act: A Civil Libertarian minority voting rights. Section 5’s preclearance requireDefense. Washington, DC: American Enterprise Instiment was intended to prevent states, especially those tute for Policy Research. that had historically discriminated against minorities, Mofﬁtt, Robert E. 1993. Gutting the Hatch Act: Confrom using the redistricting process to weaken minorgress’s Plan to Re-politicize the Civil Service. Washington, DC: Heritage Foundation. ity voters’ strength in numbers by either spreading them Rosenbloom, David H. 1971. Federal Service and the thinly across several districts, diluting their vote (called Constitution: Development of the Public Employee cracking) or placing most of them in a single district, Relationship. Ithaca, NY: Cornell University Press. concentrating their vote (called packing). Using packing the white majority concedes a seat to minority voters but renders more seats secure for white majority candidates. White voters living in the majority-minority district, however, felt that their rights were infringed, and they brought suit in federal court, claiming a violation of the 14th Amendment’s Equal Protection Clause. Lower courts upheld the state’s map, but the Supreme Court agreed to hear the case. Appellants, including the North Carolina Republican Party, identified two majority-minority districts as discriminatory: the 1st and the 12th. The 1st was so irregularly shaped that it was described as a “Rorschach inkblot test” and a “bug splattered on a windshield,” while the 12th was “even more unusually shaped,” as it traversed approximately 160 miles of the Interstate 85 corridor, with parts of the district only as wide as the highway itself. Appellants argued that these two districts reﬂected political gerrymandering, designed to advantage to Democrats over Republicans but in the guise of racial gerrymandering. Regardless of the pretext,

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appellants contended, white voters were harmed by the work of the Democratically controlled legislature, DID YOU KNOW? because they were placed in districts with people who had few if any common interests or characteristics other 1996 Presidential Campaign Scandal and Its than skin color. In Justice O’Connor’s words, the two Impact on Campaign Rules districts consequently bear “an uncomfortable resemblance to political apartheid,” meaning an artiﬁcial segPresidential Clinton’s 1996 reelection committee and regation of people by race. the Democratic National Committee engaged in irregular means, sometimes illegal, to raise campaign funds, The legal question before the Court was whether the most of which exploited loopholes in the FECA. In the white voters had been denied equal protection under aftermath of the 1979 FECA amendments (see docuthe law, as required by the 14th Amendment, when ment), parties, interest groups, and candidates engaged North Carolina drew its congressional districts for the in legal, but in some cases questionable, methods to sole reason of protecting black voting rights. In earlier circumvent the FECA’s contribution limits that proved decisions, the Court had upheld majority-minority dishighly successful. With Clinton fearing for his reelection in 1996, he, his advisors, and the Democratic Natricts and had indicated its displeasure with redistricting tional Committee (DNC) devised a strategy to raise plans resulting from section 5 requirements in which signiﬁcantly more money than any potential Republistates had not maximized minority voting strength. But can presidential nominee. During the 1996 presidential in this case, the Court became suspicious of the unusucampaign in which Clinton’s and Senator Robert Dole’s ally designed districts and concluded that their shapes (R, KS) committees accepted public funding, Clinton’s could not be defended. In fact, the majority decided campaign and the DNC raised and spent $44 million over the amount allowed under the law, most of it as soft that racial gerrymandering violated the 14th Amendmoney. Among the dubious fund-raising methods emment’s Equal Protection Clause. Though the districts, ployed during the election were using the White House on their face, appeared racially neutral, the Court deterto solicit contributions by inviting donors to spend a mined that their bizarre shapes really belied an attempt night in the Lincoln Bedroom; hosting 103 White House by the legislature to separate voters on the basis of race, coffees where money was raised; using ﬂights aboard and applying the strict scrutiny standard, the Court Air Force One to encourage contributions; having the vice president place personal calls to donors from his ruled that the state had not demonstrated a compelling White House ofﬁce; having the vice president deliver interest to use race as the only criterion when drawing a speech at a Buddhist Temple that netted the DNC a districts. North Carolina’s argument that it needed one $65,000 contribution from its monks; and employing additional majority-minority district to meet the Justice Asian Americans and some foreign nationals to seek Department’s standards was not sufﬁciently compelling contributions from foreign nationals, foreign businesses, to justify its redistricting plan. Indeed, the Court ruled and foreign governments in Asia. FBI and congressional investigations delved into the allegations, resulting that white voters in the two districts could invoke the Equal Protection Clause, and it found that they had been unfairly treated. The majority also stated, however, that race may be considered by states when redistricting, but race must not be the dominant criterion. Should the Court discover a case of pure race-based redistricting, it would declare it unconstitutional in the absence of a compelling state interest. Yet the Court left unexplained how it would treat cases where race was one of several criteria that produced one or more majorityminority districts. The Court addressed this issue two years later, in Miller v. Johnson, 515 U.S. 900 (1995). The dissenting justices expressed their astonishment that the majority had chosen to abandon precedent and overturn a redistricting plan that had sent two black representatives to Congress from North Carolina for the ﬁrst time since Reconstruction. They argued that it had been unconstitutional for states to draw districts that made it difﬁcult, if not impossible, for minority groups to win seats in legislatures, thereby enhancing minority representation, even as the Court simultaneously held that states

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could use redistricting to enhance the electoral fortunes of union members, Hasidic Jews, Polish Americans, and DID YOU KNOW? members of a political party. With this decision, the minority contended, the Court was undermining the adin several convictions. The Republican-controlled comvances achieved in minority representation. mittee reports contained numerous campaign reform Shaw v. Reno (1993) was the beginning of an eightrecommendations, which Democrats thought were exyear battle over redistricting in North Carolina. In cessively partisan. While the 1996 campaign scandal never rose to the level of the Watergate or Teapot Dome Shaw, the Court remanded the case to the district court scandals, the incidents fueled interest in revising the for further proceedings in light of the Court’s decision FECA, but it took over six years to pass the Bipartisan to subject racial gerrymanders to strict scrutiny. HowCampaign Reform Act of 2002 (see document), which ever, the North Carolina redistricting case made its way was a major advance in campaign ﬁnance regulation. back to the Supreme Court in Shaw v. Hunt (1996), Several Supreme Court decisions since 2002, however, the Court ruled in Miller v. Johnson (1995) that courts have severely weakened the statute. should apply strict scrutiny if they determine that race is Further Reading the “predominant factor” in drawing district lines. Hohenstein, Kurt. 2007. Coining Corruption: The MakOn remand, the district court concluded that while ing of the American Campaign Finance System. the North Carolina redistricting plan had classiﬁed votDeKalb: Northern Illinois University Press. ers by race, the plan was narrowly tailored to further the Roberts, Robert N., and Marion T. Doss, Jr. 1997. From Watergate to Whitewater: The Public Integrity War. state’s compelling interests in complying with sections 2 Westport, CT: Praeger. and 5 of the Voting Rights Act of 1965. However, in Shaw v. Hunt, 517 U.S. 899 (1996) the Court declared, once again by a 5–4 vote, that the state’s redistricting plan had not furthered any compelling interest. The Court concluded that the Voting Rights Act did not require North Carolina to maximize the number of majority-minority districts in the state. However, the Court left open the possibility that compliance with the Voting Rights Act “can be a compelling state interest under the proper circumstance.” In 1997 the North Carolina legislature implemented new congressional districts to comply with the previous Court decisions. In the new 12th Congressional District, as in previous iterations of the district, blacks constituted only 47 percent of the total population rather than a majority. Furthermore, in drawing the 12th district, only 6 counties were split, rather than the previous 10. However, these congressional districts were also challenged, and before discovery and the introduction of any empirical evidence, the district court granted summary judgment to those opposing the new district, ruling that, on the basis of the appearance of the district, race was the “predominant factor” in drawing the district boundaries. In 1999 in Hunt v. Cromartie, 526 U.S. 541, a unanimous Supreme Court concluded that the district court should have allowed the case to go to trial to review the evidence. On remand, the district court held a three-day trial to determine whether the state legislature had once again used race-based criteria to draw the new 12th congressional district. Noting the district’s shape—it continued splintering towns and counties—and its 47 percent black population, the district court concluded that the legislature had once again impermissibly used race as the driving motivation, or primary factor, in drawing the district’s lines. However, in Hunt v. Cromartie II, 532 U.S. 234 (2001) the Supreme Court, with Justice O’Connor providing the crucial ﬁfth vote, ruled that the new 12th congressional district was constitutional. With the Court considering the matter for the fourth time, ﬁve justices concluded that because it could be argued that race was not the primary factor in drawing the

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12th congressional district, the district passed constitutional scrutiny. The majority opinion, written by Justice Breyer, concluded that the state had presented sufﬁcient evidence at trial that the real motivation for the district was political, not racial. The empirical problem for the challengers was the strong correlation between race and party voting, namely, that blacks voted predominantly for Democrats. Therefore, a state could draw a district to enhance Democratic electoral fortunes by packing a district with those who traditionally vote Democratic; however, because most blacks voted Democratic, the motivation for the district appeared to be racial. Because the evidence could not prove that the North Carolina general assembly drew the district based on racial factors alone, the Court voted to uphold the 12th congressional district. Shaw v. Reno (1993) and its progeny were landmark decisions in many respects. In the context of campaigns, the Supreme Court made it exceedingly more difﬁcult for minority groups to elect minority members to represent them. From a broader perspective, the Supreme Court declared that all forms of racial discrimination, whether motivated to advance minority interests or to restrain them, were presumptively unconstitutional. The Court’s pronouncement on racial discrimination in these cases also had an impact on other policies designed to advance minority rights and interests, such as afﬁrmative action.

• Document: Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) • Date: Decided April 28, 1997 • Signiﬁcance: In Timmons v. Twin Cities Area New Party, the Supreme Court declared that minor parties did not have the constitutional right to nominate a candidate who was already the nominee of another political party. The Court upheld a Minnesota law that banned fusion candidacies, reasoning these candidates might produce political instability and harm the major parties.

DOCUMENT Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) Chief Justice Rehnquist delivered the opinion of the Court Most States prohibit multiple party, or “fusion,” candidacies for elected ofﬁce. The Minnesota laws challenged in this case prohibit a candidate from appearing on the ballot as the candidate of more than one party. We hold that such a prohibition does not violate the First and Fourteenth Amendments to the United States Constitution. Respondent is a chartered chapter of the national New Party. Petitioners are Minnesota election ofﬁcials. In April 1994, Minnesota State Representative Andy Dawkins was running unopposed in the Minnesota Democratic Farmer Labor Party’s (DFL) primary. That same month, New Party members chose Dawkins as their candidate for the same ofﬁce in the November 1994 general election. Neither Dawkins nor the DFL objected, and Dawkins signed the required afﬁdavit of candidacy for the New Party. Minnesota, however, prohibits fusion candidacies. Because Dawkins had already ﬁled as a candidate for the DFL’s nomination, local election ofﬁcials refused to accept the New Party’s nominating petition. 243

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The New Party ﬁled suit in United States District Court, contending that Minnesota’s antifusion laws violated the Party’s associational rights under the First and Fourteenth Amendments. The District Court granted summary judgment for the state defendants, concluding that Minnesota’s fusion ban was “a valid and non discriminatory regulation of the election process”, and noting that “issues concerning the mechanics of choosing candidates . . . are, in large part, matters of policy best left to the deliberative bodies themselves.” Twin Cities Area New Party v. McKenna, 863 F. Supp. 988, 994 (D. Minn. 1994). The Court of Appeals reversed. . . . We granted certiorari and now reverse. Fusion was a regular feature of Gilded Age American politics. Particularly in the West and Midwest, candidates of issue oriented parties like the Grangers, Independents, Greenbackers, and Populists often succeeded through fusion with the Democrats, and vice versa. Republicans, for their part, sometimes arranged fusion candidacies in the South, as part of a general strategy of encouraging and exploiting divisions within the dominant Democratic Party. . . . Fusion was common in part because political parties, rather than local or state governments, printed and distributed their own ballots. These ballots contained only the names of a particular party’s candidates, and so a voter could drop his party’s ticket in the ballot box without even knowing that his party’s candidates were supported by other parties as well. But after the 1888 presidential election, which was widely regarded as having been plagued by fraud, many States moved to the “Australian ballot system.” Under that system, an ofﬁcial ballot, containing the names of all the candidates legally nominated by all the parties, was printed at public expense and distributed by public ofﬁcials at polling places. . . . By 1896, use of the Australian ballot was widespread. During the same period, many States enacted other election related reforms, including bans on fusion candidacies. Minnesota banned fusion in 1901. This trend has continued and, in this century, fusion has become the exception, not the rule. Today, multiple party candidacies are permitted in just a few States, and fusion plays a signiﬁcant role only in New York. The First Amendment protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideas. . . . As a result, political parties’ government, structure, and activities enjoy constitutional protection. . . . On the other hand, it is also clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election and campaign related disorder. . . . When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the “ ‘character and magnitude’ ” of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary. . . . Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s “ ‘important regulatory interests’ ” will usually be enough to justify “ ‘reasonable, nondiscriminatory restrictions.’ ” . . . No bright line separates permissible election related regulation from unconstitutional infringements on First Amendment freedoms. The New Party’s claim that it has a right to select its own candidate is uncontroversial, so far as it goes. . . . That is, the New Party, and not someone else, has the

Chapter 4 • 1970 to 1999

right to select the New Party’s “standard bearer.” It does not follow, though, that a party is absolutely entitled to have its nominee appear on the ballot as that party’s candidate. A particular candidate might be ineligible for ofﬁce, unwilling to serve, or, as here, another party’s candidate. That a particular individual may not appear on the ballot as a particular party’s candidate does not severely burden that party’s association rights. . . . The New Party relies on Eu v. San Francisco County Democratic Central Comm. (1989), and Tashjian v. Republican Party of Connecticut (1987). In Eu, we struck down California election provisions that prohibited political parties from endorsing candidates in party primaries and regulated parties’ internal affairs and structure. And in Tashjian, we held that Connecticut’s closed primary statute, which required voters in a party primary to be registered party members, interfered with a party’s associational rights by limiting “the group of registered voters whom the Party may invite to participate in the basic function of selecting the Party’s candidates.” . . . But while Tashjian and Eu involved regulation of political parties’ internal affairs and core associational activities, Minnesota’s fusion ban does not. The ban, which applies to major and minor parties alike, simply precludes one party’s candidate from appearing on the ballot, as that party’s candidate, if already nominated by another party. Respondent is free to try to convince Representative Dawkins to be the New Party’s, not the DFL’s, candidate. . . . The Court of Appeals emphasized its belief that, without fusion based alliances, minor parties cannot thrive. This is a predictive judgment which is by no means self evident. But, more importantly, the supposed beneﬁts of fusion to minor parties does not require that Minnesota permit it. . . . Many features of our political system— e.g., single member districts, “ﬁrst past the post” elections, and the high costs of campaigning—make it difﬁcult for third parties to succeed in American politics. Burnham Declaration, App. 12–13. But the Constitution does not require States to permit fusion any more than it requires them to move to proportional representation elections or public ﬁnancing of campaigns. . . . The New Party contends that the fusion ban burdens its “right . . . to communicate its choice of nominees on the ballot on terms equal to those offered other parties, and the right of the party’s supporters and other voters to receive that information,” and insists that communication on the ballot of a party’s candidate choice is a “critical source of information for the great majority of voters . . . who . . . rely upon party ‘labels’ as a voting guide.” It is true that Minnesota’s fusion ban prevents the New Party from using the ballot to communicate to the public that it supports a particular candidate who is already another party’s candidate. In addition, the ban shuts off one possible avenue a party might use to send a message to its preferred candidate because, with fusion, a candidate who wins an election on the basis of two parties’ votes will likely know more—if the parties’ votes are counted separately—about the particular wishes and ideals of his constituency. We are unpersuaded, however, by the Party’s contention that it has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate. Ballots serve primarily to elect candidates, not as fora for political expression. . . . Like all parties in Minnesota, the New Party is able to use the ballot to communicate information about itself and its candidate to the voters, so long as that candidate is not already someone else’s candidate. The Party retains great latitude in its ability to communicate ideas to voters and candidates through its participation in the campaign, and Party members

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may campaign for, endorse, and vote for their preferred candidate even if he is listed on the ballot as another party’s candidate. In sum, Minnesota’s laws do not restrict the ability of the New Party and its members to endorse, support, or vote for anyone they like. The laws do not directly limit the Party’s access to the ballot. They are silent on parties’ internal structure, governance, and policy making. Instead, these provisions reduce the universe of potential candidates who may appear on the ballot as the Party’s nominee only by ruling out those few individuals who both have already agreed to be another party’s candidate and also, if forced to choose, themselves prefer that other party. They also limit, slightly, the Party’s ability to send a message to the voters and to its preferred candidates. We conclude that the burdens Minnesota imposes on the Party’s First and Fourteenth Amendment associational rights—though not trivial—are not severe. The Court of Appeals determined that Minnesota’s fusion ban imposed “severe” burdens on the New Party’s associational rights, and so it required the State to show that the ban was narrowly tailored to serve compelling state interests. We disagree; given the burdens imposed, the bar is not so high. Instead, the State’s asserted regulatory interests need only be “sufﬁciently weighty to justify the limitation” imposed on the Party’s rights. . . . Nor do we require elaborate, empirical veriﬁcation of the weightiness of the State’s asserted justiﬁcations. See Munro v. Socialist Workers Party, 479 U.S. 189, 195–196 (1986). . . . The Court of Appeals acknowledged Minnesota’s interests in avoiding voter confusion and overcrowded ballots, preventing party splintering and disruptions of the two party system, and being able to clearly identify the election winner. . . . Minnesota argues here that its fusion ban is justiﬁed by its interests in avoiding voter confusion, promoting candidate competition (by reserving limited ballot space for opposing candidates), preventing electoral distortions and ballot manipulations, and discouraging party splintering and “unrestrained factionalism.” . . . States certainly have an interest in protecting the integrity, fairness, and efﬁciency of their ballots and election processes as means for electing public ofﬁcials. . . . Petitioners contend that a candidate or party could easily exploit fusion as a way of associating his or its name with popular slogans and catch phrases. For example, members of a major party could decide that a powerful way of “sending a message” via the ballot would be for various factions of that party to nominate the major party’s candidate as the candidate for the newly formed “No New Taxes,” “Conserve Our Environment,” and “Stop Crime Now” parties. In response, an opposing major party would likely instruct its factions to nominate that party’s candidate as the “Fiscal Responsibility,” “Healthy Planet,” and “Safe Streets” parties’ candidate. Whether or not the putative “fusion” candidates’ names appeared on one or four ballot lines, such maneuvering would undermine the ballot’s purpose by transforming it from a means of choosing candidates to a billboard for political advertising. The New Party responds to this concern, ironically enough, by insisting that the State could avoid such manipulation by adopting more demanding ballot access standards rather than prohibiting multiple party nomination. . . . However, as we stated above, because the burdens the fusion ban imposes on the Party’s associational rights are not severe, the State need not narrowly tailor the means it chooses to promote ballot integrity. The Constitution does not require that Minnesota compromise the policy choices embodied in its ballot access requirements to accommodate the New Party’s fusion strategy. . . .

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States also have a strong interest in the stability of their political systems. This interest does not permit a State to completely insulate the two party system from minor parties’ or independent candidates’ competition and inﬂuence, Williams v. Rhodes (1968), nor is it a paternalistic license for States to protect political parties from the consequences of their own internal disagreements. That said, the States’ interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two party system. . . . And while an interest in securing the perceived beneﬁts of a stable two party system will not justify unreasonably exclusionary restrictions States need not remove all of the many hurdles third parties face in the American political arena today. . . . We conclude that the burdens Minnesota’s fusion ban imposes on the New Party’s associational rights are justiﬁed by “correspondingly weighty” valid state interests in ballot integrity and political stability. In deciding that Minnesota’s fusion ban does not unconstitutionally burden the New Party’s First and Fourteenth Amendment rights, we express no views on the New Party’s policy based arguments concerning the wisdom of fusion. It may well be that, as support for new political parties increases, these arguments will carry the day in some States’ legislatures. But the Constitution does not require Minnesota, and the approximately 40 other States that do not permit fusion, to allow it. The judgment of the Court of Appeals is reversed. It is so ordered.

ANALYSIS Most states prohibited a candidate from appearing on a ballot as the candidate of more than one party, otherwise known as a fusion candidacy. However, in 1994, the Twin Cities Area New Party, a minor party, chose as its nominee Andy Dawkins, who was already the candidate of the Minnesota Democratic Farmer Labor (DFL) Party. Citing state law, local election ofﬁcials refused to accept the New Party’s nominating petition, and the New Party responded by suing election ofﬁcials, contending that the fusion ban violated its associational freedoms guaranteed under the 14th Amendment. The district court ruled in favor of Minnesota, but the court of appeals reversed, concluding that the fusion ban impermissibly burdened the New Party’s associational rights. Writing for a six-member majority upholding the ban, Chief Justice Rehnquist maintained that while the First Amendment protected citizens’ rights to associate with and form political parties, states were permitted to enact reasonable regulations regarding parties, elections, and ballots to reduce “campaign related disorder.” The Court’s balancing approach mirrored that found in Anderson v. Celebrezze (1983) (see document), which required the Court to “weigh the character and magnitude” of the burden the election law imposed on First Amendment rights against the government’s interest in promoting its law. Applying the Anderson test, Chief Justice Rehnquist ﬁrst argued that the magnitude of the burden on minor parties was rather mild, because the New Party was still allowed to convince Andy Dawkins to run under its party label rather than the DFL’s. Furthermore, while nominating a candidate was one form of endorsement, the Court concluded that the Constitution did not protect a minor party’s right to use the ballot to communicate its message to voters. The New Party was free to

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advertise or endorse another candidate, but it was not entitled to use the ballot as its primary communication DID YOU KNOW? mechanism with voters. Furthermore, while conceding that banning fusion candidates primarily burdened Minor Party Access to Debates minor parties, Chief Justice Rehnquist maintained that the “Constitution does not require States to permit fuIn the American electoral system, with its Electoral Colsion any more than it requires them to move to prolege, single-member congressional districts, burdensome ballot access laws, and a culture that favors two portional representation elections or public ﬁnancing of political parties, minor parties have a difﬁcult time gaincampaigns.” ing public support and winning elections. As if these Finally, the Court concluded that Minnesota’s reguproblems weren’t enough, the Supreme Court, in Arkanlatory interests were “sufﬁciently weighty to justify the sas Educational Television Commission v. Forbes (1998), limitation” imposed on the New Party’s rights. The state upheld a state-owned public television broadcaster’s demaintained that the fusion ban protected the integrity, cision to exclude an independent candidate from a congressional debate. Consequently, the First Amendment fairness, and efﬁciency of its ballots, as well as ensurdoes not require state-owned television broadcasters to ing that minor parties, which were given access to the allow every candidate access to debates. ballot, were in fact supported by voters. Minnesota was Ralph Forbes, an independent candidate for Arkanconcerned that a minor party might bootstrap its way to sas’s Third Congressional District, who had been a sesuccess by riding the coattails of another party’s popular rious contender for the Republican nomination for candidate. lieutenant governor in 1986 and 1990, was excluded from the debate for the Third Congressional District beWhile Chief Justice Rehnquist could have concluded cause the Arkansas Educational Television Commission his opinion by agreeing with the state’s asserted inter(AETC) deemed Forbes not to be a serious candidate. ests, he continued his analysis by offering another leForbes ﬁled suit alleging that the AETC decision to exgitimate reason for the fusion ban, sua sponte. Chief clude him from the debate violated his First Amendment Justice Rehnquist maintained that a state had a valid speech rights. interest in the stability of its political system, and it was Under the Supreme Court’s First Amendment doctrine, traditional public forums (or open forums), like perfectly reasonable for a state to believe that the twopublic sidewalks, have the broadest constitutional proparty system provided maximum stability. While the intection. At the other extreme are nonpublic forums, on terest in a stable two-party system will not justify every which the government can impose content restrictions restriction on minor parties, it is sufﬁcient justiﬁcation but may not engage in viewpoint discrimination, for exfor reasonable regulations that discriminatorily affected ample, a military base. The government also created a minor parties. third forum called the designated public forum. Two dissenting opinions were ﬁled. Justice Stevens, joined by Justice Ginsburg, dissented. In his dissent, Justice Stevens maintained, ﬁrst, that the Court’s analysis was grounded on “three dubious premises”: that the statute imposed only minor burdens on the New Party’s associational rights, that the statute signiﬁcantly served the state’s asserted interests, and that preserving the two-party system was a legitimate justiﬁcation for banning fusion candidacies. Arguing that the fusion ban imposed signiﬁcant burdens on minor parties, Justice Stevens maintained that running candidates was what separated a political party from an interest group. The majority maintained that the fusion ban still allowed the New Party to buy advertisements and endorse candidates, but it missed the larger point that political parties also nominate candidates. The fusion ban forbade minor parties from nominating candidates but only if such candidates had not already been nominated by another party. Second, Justice Stevens argued that while the state’s asserted interests—preventing voter confusion, ballot overcrowding and manipulation, and minimizing intraparty factions—were reasonable, those interests were not constitutionally sufﬁcient because the state “failed to explain how the ban actually serves [those] interests.”

Chapter 4 • 1970 to 1999

Finally, the principal dissent accused the Court’s majority of upholding the ban out of fear that the two-party DID YOU KNOW? system would crumble if fusion candidates gained traction. While conceding that political stability was a leApplying the Supreme Court’s forum analysis, Justice gitimate governmental interest, Justice Stevens found it Kennedy maintained that the AETC debate was most simimpermissible that the Court had considered this ratioilar to the nonpublic forum because the broadcast comnale when Minnesota’s lawyers expressly rejected this pany had not made the debate generally available to all candidates, only those candidates the AETC determined rationale at oral argument. to be eligible. Furthermore, the AETC had not rejected Justice Souter also dissented in order to present his Forbes’s appeal for inclusion because of his viewpoints opinion on the “two parties, equal political stability” but rather because he was not a serious candidate. In explanation adopted by the majority. Like Justice Steshort, the Court concluded that the AETC made a reavens, Justice Souter agreed that Minnesota had not ofsonable judgment to exclude Forbes from the debate. fered this rationale and, therefore, the Court should not Arkansas Educational Television Commission v. Forbes (1998) was an important Supreme Court decihave considered it. However, citing political science resion governing candidate debates. The conclusion that search on political parties’ decline, Justice Souter could debates sponsored by state-owned broadcasting comnot discount “the possibility of a forceful [argument]” panies were nonpublic forums, subject to reasonable that two parties produced maximum political stability. regulations by debate organizers was not surprising Upon his literature review, Justice Souter concluded or problematic. However, what was troubling was the that “it may not be unreasonable to infer that the two broad latitude given to broadcasters to determine which candidates were bona ﬁde contenders and the failure to party system is in some jeopardy.” recognize the damage done to the electoral fortunes of For many years before Timmons, scholars were puzindependent and minor party candidates that were exzled, and sometimes angry, at the Supreme Court’s cluded from participating in debates. In short, this deciwillingness to uphold ballot access laws that had a dission only exacerbated the already stark legal obstacles criminatory effect on minor parties. In addition to confaced by independent candidates and minor parties. stitutional rules and legislative apportionment schemes that made it difﬁcult for minor parties’ candidates to win, the Court’s ballot access jurisprudence provided legal support for decisions to make it even more difﬁcult for minor parties to obtain access to the ballot, let alone achieve victory. Most striking about Timmons was the Court’s admission that it believed that two parties produced political stability and that the costs to include minor parties in the political process far outweighed any perceived or expected beneﬁts, such as increased voter participation.

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5 2000 TO 2010 The ﬁrst decade of the 21st century witnessed the collision between congressional efforts to regulate campaign contributions and expenditures and the federal courts’ struggle to reconcile federal and state legislation with the Constitution, particularly the First Amendment. Early in the decade, the Court deferred to the legislatures, but by decade’s end, it reversed course, dramatically overturning long-standing and recent statutes regulating campaign spending. No major campaign scandal marked the new century, but lingering anger over the Democrats’ questionable fund-raising practices during the 1996 election cycle, signiﬁcant increases in campaign costs, and heavy spending by independent groups fueled congressional reformers as they persistently fought over seven years for the passage of the Bipartisan Campaign Reform Act of 2002 (see document). The BCRA amended sections of the Federal Election Campaign Act (see document) by prohibiting the national parties from raising soft money, that is, unregulated money used for party-building activities, from all sources; regulating “electioneering communications,” deﬁned as ads intended to inﬂuence election outcomes and paid for by nonproﬁt, issue advocacy groups, especially those operating under the Internal Revenue Code’s sections 527 and 501(c); and increasing the FECA’s contribution limits for individuals, parties, and PACs and allowing limits to increase with the cost of living. The BCRA was immediately challenged, and in McConnell v. Federal Election Commission, 540 U.S. 93 (2003) (see document) most of its provisions were upheld. Despite reformers’ best efforts, money continued to pour into campaigns, mostly from independent political (§527) groups and tax exempt (§501(c)) organizations. Led by Senator John McCain (R, AZ), reformers introduced the 527 Reform Act of 2005, hoping to clarify the treatment of 527 organizations and reduce their electoral inﬂuence. The bill died in the Senate, however. Another reform effort in 2007, the Honest Leadership and Open Government Act (see document), was successful. It addressed bundling, the practice of a person soliciting campaign contributions from many people for a speciﬁc candidate and presenting them as a collection, or bundle, to the candidate. Bundling had existed since the 1970s, but it became a serious issue during George W. Bush’s 2000 and 2004 presidential campaigns. In the following years as section 527 and 501(c) groups expanded their activities, their inﬂuence in federal, state, and local elections grew (see IRC document), especially after Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) (see document). A federal appellate court ruling in SpeechNow.org v. FEC (2010)

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and two advisory opinions issued by the Federal Election Commission (FEC) led to the formation of super PACs (see “Did You Know?” box). Frustrated congressional reformers attempted to balance the effects of Citizens United by proposing the DISCLOSE Act (see “Did You Know?” box), which required transparency from donors to and spending by these groups, but the bill was killed by ﬁlibusters in the Senate. Tracing the Supreme Court’s impact on campaign rules during this period reveals shifts in the Court’s approach to the issue, resulting in much different decisions. Beginning with Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), the Court upheld campaign ﬁnance restrictions, declaring constitutional a Missouri statute that placed contribution restrictions on state candidates, ranging from $275 to $1,000, depending on the ofﬁce or size of the constituency. The Court concluded that while states were not required to adopt the federal government’s contribution limits, Buckley v. Valeo, 424 U.S. 1 (1976) was the authority for determining the constitutionality of state contribution limits. In applying Buckley to uphold Missouri’s limits, the Court dampened the calls for Buckley’s reversal. In Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001), the Rehnquist Court continued its deference to Congress’s campaign ﬁnance judgments by upholding the Party Expenditure Provision of FECA (§441a(d)(3)), which limited the expenditures that political parties could make in coordination with their candidates. The Court also upheld the BCRA’s soft money ban and the new standard for electioneering communications in McConnell v. Federal Election Commission (2003). But a few short years later, when Chief Justice Roberts and Justice Alito replaced Chief Justice Rehnquist and Justice O’Connor, the Court altered its perspective on the constitutionality of campaign ﬁnance regulations. In Randall v. Sorrell (2006), the Court struck down a Vermont campaign ﬁnance scheme that placed stringent caps on both contributions and expenditures, and it made headlines in 2010 with Citizens United v. Federal Election Commission (2010), ruling that corporations and labor unions were free to inﬂuence candidate campaigns independently of the candidates and their parties. Lastly, in the area of the rights of political parties, the Supreme Court struck down a California law, enacted through a ballot initiative, in California Democratic Party v. Jones (2000) (see document) that provided for blanket primaries, which allowed voters of all parties to participate in any party’s primary. Because the blanket primaries allowed nonparty members to vote in the primaries against the wishes of the two major parties, the Court concluded that California violated the parties’ First Amendment associational rights. However, in 2008 in Washington State Grange v. Washington State Republican Party, 552 U.S. 442, the Court upheld Washington’s top-two primary. This system permitted the top two vote getters in the primary to appear on the general election ballot, regardless of their party afﬁliation, effectively allowing two candidates of the same party to run in the general election.

• Document: California Democratic Party v. Jones, 530 U.S. 567 (2000) • Date: Decided June 26, 2000 • Signiﬁcance: California voters passed Proposition 198 in 1996, an initiative that replaced the state’s primary system with a partisan blanket primary similar to those in Alaska and Washington. The California Democratic Party challenged, arguing that it infringed on its First Amendment right of association. The Supreme Court ruled for the appellants, declaring blanket primaries unconstitutional, including those in other states. The decision strengthened the parties’ right to control their primary elections and candidate nomination rules.

DOCUMENT California Democratic Party v. Jones, 530 U.S. 567 (2000) Justice Scalia delivered the opinion of the Court This case presents the question whether the State of California may, consistent with the First Amendment to the United States Constitution, use a so-called “blanket” primary to determine a political party’s nominee for the general election.

I Under California law, a candidate for public ofﬁce has two routes to gain access to the general ballot for most state and federal elective ofﬁces. He may receive the nomination of a qualiﬁed political party by winning its primary or he may ﬁle as an independent by obtaining (for a statewide race) the signatures of one percent of the 253

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State’s electorate or (for other races) the signatures of three percent of the voting population of the area represented by the ofﬁce in contest. Until 1996, to determine the nominees of qualiﬁed parties California held what is known as a “closed” partisan primary, in which only persons who are members of the political party—i.e., who have declared afﬁliation with that party when they register to vote can vote on its nominee. In 1996 the citizens of California adopted by initiative Proposition 198. Promoted largely as a measure that would “weaken” party “hard-liners” and ease the way for “moderate problem-solvers,” Proposition 198 changed California’s partisan primary from a closed primary to a blanket primary. Under the new system, “[a]ll persons entitled to vote, including those not afﬁliated with any political party, shall have the right to vote . . . for any candidate regardless of the candidate’s political afﬁliation.” Cal. Elec. Code Ann. §2001 (West Supp. 2000). Whereas under the closed primary each voter received a ballot limited to candidates of his own party, as a result of Proposition 198 each voter’s primary ballot now lists every candidate regardless of party afﬁliation and allows the voter to choose freely among them. It remains the case, however, that the candidate of each party who wins the greatest number of votes “is the nominee of that party at the ensuing general election.” Cal. Elec. Code Ann. §15451 (West 1996). Petitioners in this case are four political parties—the California Democratic Party, the California Republican Party, the Libertarian Party of California, and the Peace and Freedom Party—each of which has a rule prohibiting persons not members of the party from voting in the party’s primary. . . . We granted certiorari. (2000).

II Respondents rest their defense of the blanket primary upon the proposition that primaries play an integral role in citizens’ selection of public ofﬁcials. As a consequence, they contend, primaries are public rather than private proceedings, and the States may and must play a role in ensuring that they serve the public interest. Proposition 198, respondents conclude, is simply a rather pedestrian example of a State’s regulating its system of elections. We have recognized, of course, that States have a major role to play in structuring and monitoring the election process, including primaries. . . . We have considered it “too plain for argument,” for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion. American Party of Tex. v. White (1974). . . . Similarly, in order to avoid burdening the general election ballot with frivolous candidacies, a State may require parties to demonstrate “a signiﬁcant modicum of support” before allowing their candidates a place on that ballot. See Jenness v. Fortson (1971). Finally, in order to prevent “party raiding”—a process in which dedicated members of one party formally switch to another party to alter the outcome of that party’s primary—a State may require party registration a reasonable period of time before a primary election. . . . What we have not held, however, is that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States may regulate freely. To the contrary, we have continually stressed that when States regulate parties’ internal processes they must act within limits imposed by the Constitution. See, e.g., Eu v. San Francisco County Democratic Central Comm. (1989);

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Democratic Party of United States v. Wisconsin ex rel. La Follette (1981). In this regard, respondents’ reliance on Smith v. Allwright (1944), and Terry v. Adams (1953), is misplaced. In Allwright, we invalidated the Texas Democratic Party’s rule limiting participation in its primary to whites; in Terry, we invalidated the same rule promulgated by the Jaybird Democratic Association, a “self-governing voluntary club.” These cases held only that, when a State prescribes an election process that gives a special role to political parties, it “endorses, adopts and enforces the discrimination against Negroes,” that the parties (or, in the case of the Jaybird Democratic Association, organizations that are “part and parcel” of the parties, bring into the process —so that the parties’ discriminatory action becomes state action under the Fifteenth Amendment. . . . They do not stand for the proposition that party affairs are public affairs, free of First Amendment protections—and our later holdings make that entirely clear. . . . Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself. . . . Consistent with this tradition, the Court has recognized that the First Amendment protects “the freedom to join together in furtherance of common political beliefs,” Tashjian, which “necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only,” La Follette, 450 U.S., at 122. That is to say, a corollary of the right to associate is the right not to associate. “ ‘Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being.’ ” Id., at 122, n. 22 (quoting L. Tribe, American Constitutional Law 791 (1978)). . . . In no area is the political association’s right to exclude more important than in the process of selecting its nominee. That process often determines the party’s positions on the most signiﬁcant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party’s ambassador to the general electorate in winning it over to the party’s views. . . . Some political parties—such as President Theodore Roosevelt’s Bull Moose Party, the La Follette Progressives of 1924, the Henry Wallace Progressives of 1948, and the George Wallace American Independent Party of 1968—are virtually inseparable from their nominees (and tend not to outlast them). Unsurprisingly, our cases vigorously afﬁrm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party “select[s] a standard bearer who best represents the party’s ideologies and preferences.” The moment of choosing the party’s nominee, we have said, is “the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.” . . . California’s blanket primary violates the principles set forth in these cases. Proposition 198 forces political parties to associate with—to have their nominees, and hence their positions, determined by—those who, at best, have refused to afﬁliate with the party, and, at worst, have expressly afﬁliated with a rival. In this respect, it is qualitatively different from a closed primary. Under that system, even when it is made quite easy for a voter to change his party afﬁliation the day of the primary, and thus, in some sense, to “cross over,” at least he must formally become a member of the party; and once he does so, he is limited to voting for candidates of that party.

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The evidence in this case demonstrates that under California’s blanket primary system, the prospect of having a party’s nominee determined by adherents of an opposing party is far from remote—indeed, it is a clear and present danger. For example, in one 1997 survey of California voters 37 percent of Republicans said that they planned to vote in the 1998 Democratic gubernatorial primary, and 20 percent of Democrats said they planned to vote in the 1998 Republican United States Senate primary. Those ﬁgures are comparable to the results of studies in other States with blanket primaries. One expert testiﬁed, for example, that in Washington the number of voters crossing over from one party to another can rise to as high as 25 percent and another that only 25 to 33 percent of all Washington voters limit themselves to candidates of one party throughout the ballot. The impact of voting by nonparty members is much greater upon minor parties, such as the Libertarian Party and the Peace and Freedom Party. In the ﬁrst primaries these parties conducted following California’s implementation of Proposition 198, the total votes cast for party candidates in some races was more than double the total number of registered party members. . . . The record also supports the obvious proposition that these substantial numbers of voters who help select the nominees of parties they have chosen not to join often have policy views that diverge from those of the party faithful. The 1997 survey of California voters revealed signiﬁcantly different policy preferences between party members and primary voters who “crossed over” from another party. Pl. Exh. 8 (Addendum to Mervin Field Report). One expert went so far as to describe it as “inevitable [under Proposition 198] that parties will be forced in some circumstances to give their ofﬁcial designation to a candidate who’s not preferred by a majority or even plurality of party members.” Tr. 421 (expert testimony of Bruce Cain). In concluding that the burden Proposition 198 imposes on petitioners’ rights of association is not severe, the Ninth Circuit cited testimony that the prospect of malicious crossover voting, or raiding, is slight, and that even though the numbers of “benevolent” crossover voters were signiﬁcant, they would be determinative in only a small number of races. But a single election in which the party nominee is selected by nonparty members could be enough to destroy the party. In the 1860 presidential election, if opponents of the ﬂedgling Republican Party had been able to cause its nomination of a pro-slavery candidate in place of Abraham Lincoln, the coalition of intraparty factions forming behind him likely would have disintegrated, endangering the party’s survival and thwarting its effort to ﬁll the vacuum left by the dissolution of the Whigs. Ordinarily, however, being saddled with an unwanted, and possibly antithetical, nominee would not destroy the party but severely transform it. “[R]egulating the identity of the parties’ leaders,” we have said, “may . . . color the parties’ message and interfere with the parties’ decisions as to the best means to promote that message.” Eu, 489 U.S., at 231, n. 21. . . . In sum, Proposition 198 forces petitioners to adulterate their candidateselection process—the “basic function of a political party,”—by opening it up to persons wholly unafﬁliated with the party. Such forced association has the likely outcome—indeed, in this case the intended outcome—of changing the parties’ message. We can think of no heavier burden on a political party’s associational freedom. Proposition 198 is therefore unconstitutional unless it is narrowly tailored to serve a compelling state interest. . . . ***

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Respondents’ legitimate state interests and petitioners’ First Amendment rights are not inherently incompatible. To the extent they are in this case, the State of California has made them so by forcing political parties to associate with those who do not share their beliefs. And it has done this at the “crucial juncture” at which party members traditionally ﬁnd their collective voice and select their spokesman. The burden Proposition 198 places on petitioners’ rights of political association is both severe and unnecessary. The judgment for the Court of Appeals for the Ninth Circuit is reversed. It is so ordered.

ANALYSIS Public dissatisfaction with federal and state legislatures has been a common theme in contemporary politics. Since 1990 legislative gridlock and high incumbent reelection rates prompted debate on legislative term limits as well as other methods to reduce the lawmakers’ relatively high disapproval ratings. In California voter anger took the form of Proposition 198, an initiative adopted in 1996 that established a partisan blanket primary. An initiative is a proposed law or constitutional amendment that is placed on an election ballot as a question or proposition. An initiative may be offered by any person, group, or organization, but sponsors are required to gather a speciﬁc number of signatures on petitions before measures are placed on the ballot. A blanket primary is a primary election in which all voters, regardless of political afﬁliation, receive a ballot displaying all the candidates for each ofﬁce. In a partisan blanket primary, voters can choose which party’s primary they want to vote in for each ofﬁce, easily moving from party to party by ofﬁce. For example, a person could cast a vote for governor for a Republican, then cast a Democratic vote for state legislator, and then move to the secretary of state to vote for a Libertarian. Each party primary winner represents that party in the general election. By comparison, nonpartisan primaries list all the candidates, without party labels, for each ofﬁce and the top two vote getters (regardless of their party) move on to the general election, even if both are of the same party. Proponents of Proposition 198 argued that a partisan blanket primary would increase voter participation by giving the electorate more choices; in addition to the palette of primary races, registered independents were eligible to vote in the primary, an option they did not have under California’s closed primary scheme. Furthermore, the inclusion of nonparty members in a primary encouraged extreme candidates to moderate their policy positions, a prospect that appealed to those who believed moderate politicians were less likely to induce governmental stalemates. Opponents of the initiative believed the primary system infringed on their freedom of association rights guaranteed by the First Amendment. These conﬂicting views were central to the debate in California Democratic Party v. Jones (2000). Before the Jones decision, political parties generally had success in the courtroom as they tried to expand their associations while failing with attempts to limit associations with particular groups within the electorate. In Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) for example, the Supreme Court sympathized with party leaders who sought to open their primaries to independent voters in a state

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DID YOU KNOW? Free Speech and Judicial Elections In recent years, the propriety of electing judges has been hotly debated between those favoring judicial elections as a voter’s right and those maintaining that the position of judge requires qualities, such as impartiality and steady demeanor, necessary to decide cases that do not lend themselves well to electoral politics. While interest groups and elites among the states have worked on this issue, the U.S. Supreme Court in 2002 addressed the constitutionality of a Minnesota Supreme Court canon of judicial conduct that forbade judicial candidates from “announcing [their] views on disputed legal or political issues.” Citing the First Amendment free speech guarantee, ﬁve members of the Supreme Court struck down Minnesota’s provision. The majority reasoned that political speech was at the core of the First Amendment and the Minnesota canon substantially restricted judicial candidates’ ability to inform voters of their opinions on pressing contemporary issues. Justice O’Connor wrote a concurring opinion, agreeing with the Court’s First Amendment analysis but questioning the policy decision to elect judges. Noting that judges were expected to be impartial in rendering their decisions, Justice O’Connor cautioned that a system that required potential judges to raise money from potentially future litigants threatened judicial integrity. Upon retirement from the bench in 2005, Justice O’Connor adopted judicial election reform as one of her signature issues. In addition to numerous public appearances in which she expressed her concerns with judicial elections, in 2010 O’Connor penned the forward to a Brennan Law Center report, The New Politics of Judicial Elections, 2000– 2009, that reviewed the many threats that money and special interest groups posed to an impartial judiciary. Justice O’Connor also endorsed Arizona’s judicial selection model in which a bipartisan nominating commission submits names of qualiﬁed individuals to the governor for selection. Currently, 21 states select their judges through partisan or nonpartisan elections. (The other states either allow the governor to appoint judges or the process originates with a judicial commission that forwards names to the governor selected on the basis of “merit.”)

that statutorily provided for closed primaries. On the other hand, cases such as Smith v. Allwright, 321 U.S. 649 (1944) and Terry v. Adams, 345 U.S. 461 (1953) reversed procedures used by state parties to disenfranchise racial minorities in primary elections. Because the Jones case lacked the racial backdrop at the core of Smith and Terry, 14th Amendment requirements were not invoked. Rather, the passage of Proposition 198 challenged the depth of political parties’ First Amendment associational rights in relation to states’ interests in structuring and conducting elections. In a 7–2 decision, the Supreme Court ruled that California’s blanket primary did not advance a compelling state interest and was, therefore, an unconstitutional infringement on political parties’ First Amendment rights. Justice Scalia penned a majority opinion unsympathetic to the respondents’ arguments. While noting state interest in conducting primary elections, Scalia stressed, What we have not held, however, is that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States may regulate freely. To the contrary, we have continually stressed that when States regulate parties’ internal processes they must act within limits imposed by the Constitution.

Scalia reasoned that the corollary of the right to associate is the right not to associate (for example, the right to exclude people who do not share party values from choosing a party’s general election candidate). Without such a right, a party may have to endure the nomination of someone not wholly in line with its stated principles, possibly compromising or blurring its message. Justice Scalia and the majority “can think of no heavier burden on a political party’s associational freedom.” Contrasting with the majority opinion, Justices Stevens and Ginsburg argued that a primary was state action, unlike most party business. They relied on Smith v. Allwright (1944) and Terry v. Adams (1953) to argue that, unlike internal affairs, the First Amendment did not give parties a right to exclude members of the electorate in state-required, state-ﬁnanced primaries. The dissenters also noted that the dire predictions made by the majority of raiding (that is, members of party A voting in the primary of party B with the intention of selecting B’s weakest candidate as B’s nominee) and that misplaced party identity had not been witnessed in Alaska and Washington.

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This case did not end attempts to pass varying types of blanket primary schemes. Justice Scalia said in his opinion that a nonpartisan primary in which the top two vote getters moved on to the general election would be constitutional because such a scheme did not actually allow primary voters to choose party nominees. The Jones case became the backdrop for a challenge to a 2004 Washington State initiative in Washington State Grange v. Washington State Republican Party (2008). The Court eventually came to a different conclusion under a system in which the candidate chooses what party to afﬁliate with regardless of party approval.

FURTHER READING Aisenbrey, Margaret P. 2006. “Party On: The Right to Voluntary Blanket Primaries.” Michigan Law Review 105, no. 3:603–29.

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• Document: The Bipartisan Campaign Reform Act of 2002 • Date: Signed by President George W. Bush on March 27, 2002 • Signiﬁcance: The Bipartisan Campaign Reform Act (BCRA) was the ﬁrst major overhaul of the Federal Election Campaign Act since 1979 (see document), while also amending the Communications Act of 1934 (see document), and portions of the U.S. Code, 18 U.S.C.A. section 607 (Supp. 2003) and 36 U.S.C.A. sections 510–511. The sponsors’ major objectives were to remove as much soft money from federal elections as possible and to update the FECA’s regulations.

DOCUMENT The Bipartisan Campaign Reform Act of 2002, PL 107-155 116 Stat. 81 AN ACT: To amend the Federal Election Campaign Act of 1971 to provide bipartisan campaign reform. TITLE I—REDUCTION OF SPECIAL INTEREST INFLUENCE SEC. 101. SOFT MONEY OF POLITICAL PARTIES. . . . IN GENERAL.—Title III of the Federal Election Campaign Act of 1971 . . . is amended by adding at the end the following: . . . “SEC. 323. SOFT MONEY OF POLITICAL PARTIES. “(a) NATIONAL COMMITTEES.— “(1) IN GENERAL.—A national committee of a political party (including a national congressional campaign committee of a political party) may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act. . . . 260

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“(b) STATE, DISTRICT, AND LOCAL COMMITTEES.— “(1) IN GENERAL.—Except as provided in paragraph (2), an amount that is expended or disbursed for Federal election activity by a State, district, or local committee of a political party (including an entity that is directly or indirectly established, ﬁnanced, maintained, or controlled by a State, district, or local committee of a political party and an ofﬁcer or agent acting on behalf of such committee or entity), or by an association or similar group of candidates for State or local ofﬁce or of individuals holding State or local ofﬁce, shall be made from funds subject to the limitations, prohibitions, and reporting requirements of this Act. “(2) APPLICABILITY.— “(A) IN GENERAL.—Notwithstanding clause (i) or (ii) of section 301(20)(A), and subject to subparagraph (B), paragraph (1) shall not apply to any amount expended or disbursed by a State, district, or local committee of a political party for an activity described in either such clause to the extent the amounts expended or disbursed for such activity are allocated (under regulations prescribed by the Commission) among amounts— “(i) which consist solely of contributions subject to the limitations, prohibitions, and reporting requirements of this Act (other than amounts described in subparagraph (B)(iii)); and “(ii) other amounts which are not subject to the limitations, prohibitions, and reporting requirements of this Act (other than any requirements of this subsection). “(B) CONDITIONS.—Subparagraph (A) shall only apply if— “(i) the activity does not refer to a clearly identiﬁed candidate for Federal ofﬁce; “(ii) the amounts expended or disbursed are not for the costs of any broadcasting, cable, or satellite communication, other than a communication which refers solely to a clearly identiﬁed candidate for State or local ofﬁce; “(iii) the amounts expended or disbursed which are described in subparagraph (A)(ii) are paid from amounts which are donated in accordance with State law and which meet the requirements of subparagraph (C), except that no person (including any person established, ﬁnanced, maintained, or controlled by such person) may donate more than $10,000 to a State, district, or local committee of a political party in a calendar year for such expenditures or disbursements; and “(iv) the amounts expended or disbursed are made solely from funds raised by the State, local, or district committee which makes such expenditure or disbursement, and do not include any funds provided to such committee from— “(I) any other State, local, or district committee of any State party, “(II) the national committee of a political party (including a national congressional campaign committee of a political party), “(III) any ofﬁcer or agent acting on behalf of any committee described in subclause (I) or (II), or “(IV) any entity directly or indirectly established, ﬁnanced, maintained, or controlled by any committee described in subclause (I) or (II). “(C) PROHIBITING INVOLVEMENT OF NATIONAL PARTIES, FEDERAL CANDIDATES AND OFFICEHOLDERS, AND STATE PARTIES ACTING JOINTLY.— Notwithstanding subsection (e) (other than subsection (e)(3)), amounts speciﬁcally authorized to be spent under subparagraph (B)(iii) meet the requirements of this subparagraph only if the amounts—

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“(i) are not solicited, received, directed, transferred, or spent by or in the name of any person described in subsection (a) or (e); and “(ii) are not solicited, received, or directed through fundraising activities conducted jointly by 2 or more State, local, or district committees of any political party or their agents, or by a State, local, or district committee of a political party on behalf of the State, local, or district committee of a political party or its agent in one or more other States. “(c) FUNDRAISING COSTS.—An amount spent by a person described in subsection (a) or (b) to raise funds that are used, in whole or in part, for expenditures and disbursements for a Federal election activity shall be made from funds subject to the limitations, prohibitions, and reporting requirements of this Act. “(d) TAX-EXEMPT ORGANIZATIONS.—A national, State, district, or local committee of a political party (including a national congressional campaign committee of a political party), an entity that is directly or indirectly established, ﬁnanced, maintained, or controlled by any such national, State, district, or local committee or its agent, and an ofﬁcer or agent acting on behalf of any such party committee or entity, shall not solicit any funds for, or make or direct any donations to— “(1) an organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code (or has submitted an application for determination of tax exempt status under such section) and that makes expenditures or disbursements in connection with an election for Federal ofﬁce (including expenditures or disbursements for Federal election activity); or “(2) an organization described in section 527 of such Code (other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local ofﬁce). “(e) FEDERAL CANDIDATES.— “(1) IN GENERAL.—A candidate, individual holding Federal ofﬁce, agent of a candidate or an individual holding Federal ofﬁce, or an entity directly or indirectly established, ﬁnanced, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal ofﬁce, shall not— “(A) solicit, receive, direct, transfer, or spend funds in connection with an election for Federal ofﬁce, including funds for any Federal election activity, unless the funds are subject to the limitations, prohibitions, and reporting requirements of this Act; or “(B) solicit, receive, direct, transfer, or spend funds in connection with any election other than an election for Federal ofﬁce or disburse funds in connection with such an election unless the funds— “(i) are not in excess of the amounts permitted with respect to contributions to candidates and political committees under paragraphs (1), (2), and (3) of section 315(a); and “(ii) are not from sources prohibited by this Act from making contributions in connection with an election for Federal ofﬁce. “(2) STATE LAW.—Paragraph (1) does not apply to the solicitation, receipt, or spending of funds by an individual described in such paragraph who is or was also a candidate for a State or local ofﬁce solely in connection with such election for State or local ofﬁce if the solicitation, receipt, or spending of funds is permitted under State law and refers only to such State or local candidate, or to any other candidate for the State or local ofﬁce sought by such candidate, or both.

Chapter 5 • 2000 to 2010

“(3) FUNDRAISING EVENTS.—Notwithstanding paragraph (1)or subsection (b)(2)(C), a candidate or an individual holding Federal ofﬁce may attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party. “(4) PERMITTING CERTAIN SOLICITATIONS.— “(A) GENERAL SOLICITATIONS.—Notwithstanding any other provision of this subsection, an individual described in paragraph (1) may make a general solicitation of funds on behalf of any organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code (or has submitted an application for determination of tax exempt status under such section) (other than an entity whose principal purpose is to conduct activities described in clauses (i) and (ii) of section 301(20)(A)) where such solicitation does not specify how the funds will or should be spent. “(B) CERTAIN SPECIFIC SOLICITATIONS.—In addition to the general solicitations permitted under subparagraph (A), an individual described in paragraph (1) may make a solicitation explicitly to obtain funds for carrying out the activities described in clauses (i) and (ii) of section 301(20)(A), or for an entity whose principal purpose is to conduct such activities, if— “(i) the solicitation is made only to individuals; and “(ii) the amount solicited from any individual during any calendar year does not exceed $20,000. “(f) STATE CANDIDATES.— “(1) IN GENERAL.—A candidate for State or local ofﬁce, individual holding State or local ofﬁce, or an agent of such a candidate or individual may not spend any funds for a communication described in section 301(20)(A)(iii) unless the funds are subject to the limitations, prohibitions, and reporting requirements of this Act. . . . (b) DEFINITIONS.—Section 301 of the Federal Election Campaign Act of 1971 . . . is amended by adding at the end thereof the following: “(20) FEDERAL ELECTION ACTIVITY.— “(A) IN GENERAL.—The term ‘Federal election activity’ means— “(i) voter registration activity during the period that begins on the date that is 120 days before the date a regularly scheduled Federal election is held and ends on the date of the election; “(ii) voter identiﬁcation, get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate for Federal ofﬁce appears on the ballot (regardless of whether a candidate for State or local ofﬁce also appears on the ballot); “(iii) a public communication that refers to a clearly identiﬁed candidate for Federal ofﬁce (regardless of whether a candidate for State or local ofﬁce is also mentioned or identiﬁed) and that promotes or supports a candidate for that ofﬁce, or attacks or opposes a candidate for that ofﬁce (regardless of whether the communication expressly advocates a vote for or against a candidate); or “(iv) services provided during any month by an employee of a State, district, or local committee of a political party who spends more than 25 percent of that individual’s compensated time during that month on activities in connection with a Federal election. “(B) EXCLUDED ACTIVITY.—The term ‘Federal election activity’ does not include an amount expended or disbursed by a State, district, or local committee of a political party for—

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“(i) a public communication that refers solely to a clearly identiﬁed candidate for State or local ofﬁce, if the communication is not a Federal election activity described in subparagraph (A)(i) or (ii); “(ii) a contribution to a candidate for State or local ofﬁce, provided the contribution is not designated to pay for a Federal election activity described in subparagraph (A); “(iii) the costs of a State, district, or local political convention; and “(iv) the costs of grassroots campaign materials, including buttons, bumper stickers, and yard signs, that name or depict only a candidate for State or local ofﬁce. “(21) GENERIC CAMPAIGN ACTIVITY.—The term ‘generic campaign activity’ means a campaign activity that promotes a political party and does not promote a candidate or non-Federal candidate. “(22) PUBLIC COMMUNICATION.—The term ‘public communication’ means a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising. “(23) MASS MAILING.—The term ‘mass mailing’ means a mailing by United States mail or facsimile of more than 500 pieces of mail matter of an identical or substantially similar nature within any 30-day period. “(24) TELEPHONE BANK.—The term ‘telephone bank’ means more than 500 telephone calls of an identical or substantially similar nature within any 30-day period.”. SEC. 102. INCREASED CONTRIBUTION LIMIT FOR STATE COMMITTEES OF POLITICAL PARTIES. Section 315(a)(1) of the Federal Election Campaign Act of 1971 . . . is amended— “(D) to a political committee established and maintained by a State committee of a political party in any calendar year which, in the aggregate, exceed $10,000.”. SEC. 103. REPORTING REQUIREMENTS. (a) REPORTING REQUIREMENTS.—Section 304 of the Federal Election Campaign Act of 1971 . . . is amended by adding at the end the following: “(e) POLITICAL COMMITTEES.— “(1) NATIONAL AND CONGRESSIONAL POLITICAL COMMITTEES.— The national committee of a political party, any national congressional campaign committee of a political party, and any subordinate committee of either, shall report all receipts and disbursements during the reporting period. “(2) OTHER POLITICAL COMMITTEES TO WHICH SECTION 323 APPLIES.— “(A) IN GENERAL.—In addition to any other reporting requirements applicable under this Act, a political committee (not described in paragraph (1) to which section 323(b)(1) applies shall report all receipts and disbursements made for activities described in section 301(20)(A), unless the aggregate amount of such receipts and disbursements during the calendar year is less than $5,000. “(B) SPECIFIC DISCLOSURE BY STATE AND LOCAL PARTIES OF CERTAIN NON-FEDERAL AMOUNTS PERMITTED TO BE SPENT ON FEDERAL ELECTION ACTIVITY.—Each report by a political committee under subparagraph (A) of receipts and disbursements made for activities described in section 301(20) (A) shall include a disclosure of all receipts and disbursements described in section 323(b)(2)(A) and (B).

Chapter 5 • 2000 to 2010

“(3) ITEMIZATION.—If a political committee has receipts or disbursements to which this subsection applies from or to any person aggregating in excess of $200 for any calendar year, the political committee shall separately itemize its reporting for such person in the same manner as required in paragraphs (3)(A), (5), and (6) of subsection (b). TITLE II—NONCANDIDATE CAMPAIGN EXPENDITURES Subtitle A—Electioneering Communications SEC. 201. DISCLOSURE OF ELECTIONEERING COMMUNICATIONS. (a) IN GENERAL.—Section 304 of the Federal Election Campaign Act of 1971 . . . as amended by section 103, is amended by adding at the end the following new subsection: “(f) DISCLOSURE OF ELECTIONEERING COMMUNICATIONS.— “(1) STATEMENT REQUIRED.—Every person who makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year shall, within 24 hours of each disclosure date, ﬁle with the Commission a statement containing the information described in paragraph (2). “(2) CONTENTS OF STATEMENT.—Each statement required to be ﬁled under this subsection shall be made under penalty of perjury and shall contain the following information: “(A) The identiﬁcation of the person making the disbursement, of any person sharing or exercising direction or control over the activities of such person, and of the custodian of the books and accounts of the person making the disbursement. “(B) The principal place of business of the person making the disbursement, if not an individual. “(C) The amount of each disbursement of more than $200 during the period covered by the statement and the identiﬁcation of the person to whom the disbursement was made. “(D) The elections to which the electioneering communications pertain and the names (if known) of the candidates identiﬁed or to be identiﬁed. . . . “(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the ﬁrst day of the preceding calendar year and ending on the disclosure date. “(3) ELECTIONEERING COMMUNICATION.—For purposes of this subsection— “(A) IN GENERAL.—(i) The term ‘electioneering communication’ means any broadcast, cable, or satellite communication which— “(I) refers to a clearly identiﬁed candidate for Federal ofﬁce; “(II) is made within— “(aa) 60 days before a general, special, or runoff election for the ofﬁce sought by the candidate; or “(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the ofﬁce sought by the candidate; and “(III) in the case of a communication which refers to a candidate for an ofﬁce other than President or Vice President, is targeted to the relevant electorate. “(ii) If clause (i) is held to be constitutionally insufﬁcient by ﬁnal judicial decision to support the regulation provided herein, then the term ‘electioneering

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communication’ means any broadcast, cable, or satellite communication which promotes or supports a candidate for that ofﬁce, or attacks or opposes a candidate for that ofﬁce (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a speciﬁc candidate. . . . “(B) EXCEPTIONS.—The term ‘electioneering communication’ does not include— “(i) a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate; “(ii) a communication which constitutes an expenditure or an independent expenditure under this Act; “(iii) a communication which constitutes a candidate debate or forum conducted pursuant to regulations adopted by the Commission, or which solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum; or “(iv) any other communication exempted under such regulations as the Commission may promulgate (consistent with the requirements of this paragraph) to ensure the appropriate implementation of this paragraph, except that under any such regulation a communication may not be exempted if it meets the requirements of this paragraph. . . . “(C) TARGETING TO RELEVANT ELECTORATE.—For purposes of this paragraph, a communication which refers to a clearly identiﬁed candidate for Federal ofﬁce is ‘targeted to the relevant electorate’ if the communication can be received by 50,000 or more persons— “(i) in the district the candidate seeks to represent, in the case of a candidate for Representative in, or Delegate or Resident Commissioner to, the Congress; or “(ii) in the State the candidate seeks to represent, in the case of a candidate for Senator. . . . SEC. 202. COORDINATED COMMUNICATIONS AS CONTRIBUTIONS. Section 315(a)(7) of the Federal Election Campaign Act of 1971 . . . is amended— (2) by inserting after subparagraph (B) the following:”(C) if— “(i) any person makes, or contracts to make, any disbursement for any electioneering communication (within the meaning of section 304(f)(3)); and “(ii) such disbursement is coordinated with a candidate or an authorized committee of such candidate, a Federal, State, or local political party or committee thereof, or an agent or ofﬁcial of any such candidate, party, or committee; such disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate’s party and as an expenditure by that candidate or that candidate’s party . . . ”. SEC. 203. PROHIBITION OF CORPORATE AND LABOR DISBURSEMENTS FOR ELECTIONEERING COMMUNICATIONS. (a) IN GENERAL.—Section 316(b)(2) of the Federal Election Campaign Act of 1971 . . . is amended by inserting “or for any applicable electioneering communication” before “but shall not include”. (b) APPLICABLE ELECTIONEERING COMMUNICATION.—Section 316 of such Act is amended by adding at the end the following: “(c) RULES RELATING TO ELECTIONEERING COMMUNICATIONS.—

Chapter 5 • 2000 to 2010

“(1) APPLICABLE ELECTIONEERING COMMUNICATION.—For purposes of this section, the term ‘applicable electioneering communication’ means an electioneering communication (within the meaning of section 304(f)(3)) which is made by any entity described in subsection (a) of this section or by any other person using funds donated by an entity described in subsection (a) of this section. “(2) EXCEPTION.—Notwithstanding paragraph (1), the term ‘applicable electioneering communication’ does not include a communication by a section 501(c)(4) organization or a political organization (as deﬁned in section 527(e)(1) of the Internal Revenue Code of 1986) made under section 304(f)(2)(E) or (F) of this Act if the communication is paid for exclusively by funds provided directly by individuals who are United States citizens or nationals or lawfully admitted for permanent residence. . . . “(B) EXCEPTION UNDER PARAGRAPH (2).—A section 501(c)(4) organization that derives amounts from business activities or receives funds from any entity described in subsection (a) shall be considered to have paid for any communication out of such amounts unless such organization paid for the communication out of a segregated account to which only individuals can contribute, as described in section 304(f)(2)(E). “(4) DEFINITIONS AND RULES.—For purposes of this subsection—“(A) the term ‘section 501(c)(4) organization’ means— “(i) an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code; or “(ii) an organization which has submitted an application to the Internal Revenue Service for determination of its status as an organization described in clause (i); and “(B) a person shall be treated as having made a disbursement if the person has executed a contract to make the disbursement. . . . SEC. 204. RULES RELATING TO CERTAIN TARGETED ELECTIONEERING COMMUNICATIONS. Section 316(c) of the Federal Election Campaign Act of 1971 . . . as added by section 203, is amended by adding at the end the following: “(6) SPECIAL RULES FOR TARGETED COMMUNICATIONS.— “(A) EXCEPTION DOES NOT APPLY.—Paragraph (2) shall not apply in the case of a targeted communication that is made by an organization described in such paragraph. “(B) TARGETED COMMUNICATION.—For purposes of subparagraph (A), the term ‘targeted communication’ means an electioneering communication (as deﬁned in section 304(f)(3)) that is distributed from a television or radio broadcast station or provider of cable or satellite television service and, in the case of a communication which refers to a candidate for an ofﬁce other than President or Vice President, is targeted to the relevant electorate. “(C) DEFINITION.—For purposes of this paragraph, a communication is ‘targeted to the relevant electorate’ if it meets the requirements described in section 304(f)(3)(C).”. Subtitle B—Independent and Coordinated Expenditures SEC. 211. DEFINITION OF INDEPENDENT EXPENDITURE. Section 301 of the Federal Election Campaign Act . . . is amended by striking paragraph (17) and inserting the following: “(17) INDEPENDENT EXPENDITURE.—The term ‘independent expenditure’ means an expenditure by a person—

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“(A) expressly advocating the election or defeat of a clearly identiﬁed candidate; and “(B) that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate’s authorized political committee, or their agents, or a political party committee or its agents.”. SEC. 212. REPORTING REQUIREMENTS FOR CERTAIN INDEPENDENT EXPENDITURES. (a) IN GENERAL.—Section 304 of the Federal Election Campaign Act of 1971 . . . (as amended by section 201) is amended— (1) in subsection (c)(2), by striking the undesignated matter after subparagraph (C); and (2) by adding at the end the following: “(g) TIME FOR REPORTING CERTAIN EXPENDITURES.— “(1) EXPENDITURES AGGREGATING $1,000.— “(A) INITIAL REPORT.—A person (including a political committee) that makes or contracts to make independent expenditures aggregating $1,000 or more after the 20th day, but more than 24 hours, before the date of an election shall ﬁle a report describing the expenditures within 24 hours. . . . “(2) EXPENDITURES AGGREGATING $10,000.— “(A) INITIAL REPORT.—A person (including a political committee) that makes or contracts to make independent expenditures aggregating $10,000 or more at any time up to and including the 20th day before the date of an election shall ﬁle a report describing the expenditures within 48 hours. . . . SEC. 213. INDEPENDENT VERSUS COORDINATED EXPENDITURES BY PARTY. Section 315(d) of the Federal Election Campaign Act of 1971 . . . is amended— . . . (2) by adding at the end the following: “(4) INDEPENDENT VERSUS COORDINATED EXPENDITURES BY PARTY.— “(A) IN GENERAL.—On or after the date on which a political party nominates a candidate, no committee of the political party may make— “(i) any coordinated expenditure under this subsection with respect to the candidate during the election cycle at any time after it makes any independent expenditure (as deﬁned in section 301(17)) with respect to the candidate during the election cycle; or “(ii) any independent expenditure (as deﬁned in section 301(17)) with respect to the candidate during the election cycle at any time after it makes any coordinated expenditure under this subsection with respect to the candidate during the election cycle. “(B) APPLICATION.—For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee. “(C) TRANSFERS.—A committee of a political party that makes coordinated expenditures under this subsection with respect to a candidate shall not, during an election cycle, transfer any funds to, assign authority to make coordinated expenditures under this subsection to, or receive a transfer of funds from, a committee of the

Chapter 5 • 2000 to 2010

political party that has made or intends to make an independent expenditure with respect to the candidate.”. SEC. 214. COORDINATION WITH CANDIDATES OR POLITICAL PARTIES. (a) IN GENERAL.—Section 315(a)(7)(B) of the Federal Election Campaign Act of 1971 . . . is amended— (1) by redesignating clause (ii) as clause (iii); and (2) by inserting after clause (i) the following new clause: “(ii) expenditures made by any person (other than a candidate or candidate’s authorized committee) in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party, shall be considered to be contributions made to such party committee; and” . . . (c) REGULATIONS BY THE FEDERAL ELECTION COMMISSION.— The Federal Election Commission shall promulgate new regulations on coordinated communications paid for by persons other than candidates, authorized committees of candidates, and party committees. The regulations shall not require agreement or formal collaboration to establish coordination. . . . (d) MEANING OF CONTRIBUTION OR EXPENDITURE FOR THE PURPOSES OF SECTION 316.—Section 316(b)(2) of the Federal Election Campaign Act of 1971 . . . is amended by striking “shall include” and inserting “includes a contribution or expenditure, as those terms are deﬁned in section 301, and also includes”. . . . TITLE III—MISCELLANEOUS SEC. 302. PROHIBITION OF FUNDRAISING ON FEDERAL PROPERTY. Section 607 of title 18, United States Code, is amended— (1) by striking subsection (a) and inserting the following: “(a) PROHIBITION.— “(1) IN GENERAL.—It shall be unlawful for any person to solicit or receive a donation of money or other thing of value in connection with a Federal, State, or local election from a person who is located in a room or building occupied in the discharge of ofﬁcial duties by an ofﬁcer or employee of the United States. It shall be unlawful for an individual who is an ofﬁcer or employee of the Federal Government, including the President, Vice President, and Members of Congress, to solicit or receive a donation of money or other thing of value in connection with a Federal, State, or local election, while in any room or building occupied in the discharge of ofﬁcial duties by an ofﬁcer or employee of the United States, from any person. “(2) PENALTY.—A person who violates this section shall be ﬁned not more than $5,000, imprisoned not more than 3 years, or both.” . . . SEC. 303. STRENGTHENING FOREIGN MONEY BAN. Section 319 of the Federal Election Campaign Act of 1971 . . . is amended— (1) by striking the heading and inserting the following: “CONTRIBUTIONS AND DONATIONS BY FOREIGN NATIONALS”; and (2) by striking subsection (a) and inserting the following: “(a) PROHIBITION.—It shall be unlawful for— “(1) a foreign national, directly or indirectly, to make—

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“(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; “(B) a contribution or donation to a committee of a political party; or “(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 304(f)(3)); or “(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.”. SEC. 304. MODIFICATION OF INDIVIDUAL CONTRIBUTION LIMITS IN RESPONSE TO EXPENDITURES FROM PERSONAL FUNDS. (a) INCREASED LIMITS FOR INDIVIDUALS.—Section 315 of the Federal Election Campaign Act of 1971 . . . is amended— (1) in subsection (a)(1), by striking “No person” and inserting “Except as provided in subsection (i), no person”; and (2) by adding at the end the following: “(i) INCREASED LIMIT TO ALLOW RESPONSE TO EXPENDITURES FROM PERSONAL FUNDS.— “(1) INCREASE.— “(A) IN GENERAL.—Subject to paragraph (2), if the opposition’s personal funds amount with respect to a candidate for election to the ofﬁce of Senator exceeds the threshold amount, the limit under subsection (a)(1)(A) (in this subsection referred to as the ‘applicable limit’) with respect to that candidate shall be the increased limit. “(B) THRESHOLD AMOUNT.— “(i) STATE-BY-STATE COMPETITIVE AND FAIR CAMPAIGN FORMULA.— In this subsection, the threshold amount with respect to an election cycle of a candidate described in subparagraph (A) is an amount equal to the sum of— “(I) $150,000; and “(II) $0.04 multiplied by the voting age population. “(ii) VOTING AGE POPULATION.—In this subparagraph, the term ‘voting age population’ means in the case of a candidate for the ofﬁce of Senator, the voting age population of the State of the candidate (as certiﬁed under section 315(e)). “(C) INCREASED LIMIT.—Except as provided in clause (ii), for purposes of subparagraph (A), if the opposition personal funds amount is over—“(i) 2 times the threshold amount, but not over 4 times that amount— “(I) the increased limit shall be 3 times the applicable limit; and “(II) the limit under subsection (a)(3) shall not apply with respect to any contribution made with respect to a candidate if such contribution is made under the increased limit of subparagraph (A) during a period in which the candidate may accept such a contribution; “(ii) 4 times the threshold amount, but not over 10 times that amount— “(I) the increased limit shall be 6 times the applicable limit; and “(II) the limit under subsection (a)(3) shall not apply with respect to any contribution made with respect to a candidate if such contribution is made under the increased limit of subparagraph (A) during a period in which the candidate may accept such a contribution; and “(iii) 10 times the threshold amount— “(I) the increased limit shall be 6 times the applicable limit;

Chapter 5 • 2000 to 2010

“(II) the limit under subsection (a)(3) shall not apply with respect to any contribution made with respect to a candidate if such contribution is made under the increased limit of subparagraph (A) during a period in which the candidate may accept such a contribution; and “(III) the limits under subsection (d) with respect to any expenditure by a State or national committee of a political party shall not apply. “(D) OPPOSITION PERSONAL FUNDS AMOUNT.—The opposition personal funds amount is an amount equal to the excess (if any) of— “(i) the greatest aggregate amount of expenditures from personal funds (as deﬁned in section 304(a)(6)(B)) that an opposing candidate in the same election makes; over “(ii) the aggregate amount of expenditures from personal funds made by the candidate with respect to the election. “(2) TIME TO ACCEPT CONTRIBUTIONS UNDER INCREASED LIMIT.— “(A) IN GENERAL.—Subject to subparagraph (B), a candidate and the candidate’s authorized committee shall not accept any contribution, and a party committee shall not make any expenditure, under the increased limit under paragraph (1)— “(i) until the candidate has received notiﬁcation of the opposition personal funds amount under section 304(a)(6)(B); and . . . SEC. 305. LIMITATION ON AVAILABILITY OF LOWEST UNIT CHARGE FOR FEDERAL CANDIDATES ATTACKING OPPOSITION. (a) IN GENERAL.—Section 315(b) of the Communications Act of 1934 . . . is amended— ... “(2) CONTENT OF BROADCASTS.— “(A) IN GENERAL.—In the case of a candidate for Federal ofﬁce, such candidate shall not be entitled to receive the rate under paragraph (1)(A) for the use of any broadcasting station unless the candidate provides written certiﬁcation to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same ofﬁce, in any broadcast using the rights and conditions of access under this Act, unless such reference meets the requirements of subparagraph (C) or (D). “(B) LIMITATION ON CHARGES.—If a candidate for Federal ofﬁce (or any authorized committee of such candidate) makes a reference described in subparagraph (A) in any broadcast that does not meet the requirements of subparagraph (C) or (D), such candidate shall not be entitled to receive the rate under paragraph (1) (A) for such broadcast or any other broadcast during any portion of the 45-day and 60-day periods described in paragraph (1)(A), that occur on or after the date of such broadcast, for election to such ofﬁce. “(C) TELEVISION BROADCASTS.—A candidate meets the requirements of this subparagraph if, in the case of a television broadcast, at the end of such broadcast there appears simultaneously, for a period no less than 4 seconds— “(i) a clearly identiﬁable photographic or similar image of the candidate; and

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“(ii) a clearly readable printed statement, identifying the candidate and stating that the candidate has approved the broadcast and that the candidate’s authorized committee paid for the broadcast. “(D) RADIO BROADCASTS.—A candidate meets the requirements of this subparagraph if, in the case of a radio broadcast, the broadcast includes a personal audio statement by the candidate that identiﬁes the candidate, the ofﬁce the candidate is seeking, and indicates that the candidate has approved the broadcast. . . . SEC. 307. MODIFICATION OF CONTRIBUTION LIMITS. (a) INCREASE IN INDIVIDUAL LIMITS FOR CERTAIN CONTRIBUTIONS.— Section 315(a)(1) of the Federal Election Campaign Act of 1971 . . . is amended— (1) in subparagraph (A), by striking “$1,000” and inserting “$2,000”; and (2) in subparagraph (B), by striking “$20,000” and inserting “$25,000”. (b) INCREASE IN ANNUAL AGGREGATE LIMIT ON INDIVIDUAL CONTRIBUTIONS.— Section 315(a)(3) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(3)) is amended to read as follows: “(3) During the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual may make contributions aggregating more than— “(A) $37,500, in the case of contributions to candidates and the authorized committees of candidates; “(B) $57,500, in the case of any other contributions, of which not more than $37,500 may be attributable to contributions to political committees which are not political committees of national political parties.”. (c) INCREASE IN SENATORIAL CAMPAIGN COMMITTEE LIMIT.—Section 315(h) of the Federal Election Campaign Act of 1971 . . . is amended by striking “$17,500” and inserting “$35,000”. (d) INDEXING OF CONTRIBUTION LIMITS.—Section 315(c) of the Federal Election Campaign Act of 1971 . . . is amended— . . . (1) in paragraph (1)— . . . (C) by adding at the end the following: “(B) Except as provided in subparagraph (C), in any calendar year after 2002— . . . “(ii) each amount so increased shall remain in effect for the calendar year; and “(iii) if any amount after adjustment under clause (i) is not a multiple of $100, such amount shall be rounded to the nearest multiple of $100. “(C) In the case of limitations . . . , increases shall only be made in odd-numbered years and such increases shall remain in effect for the 2 year period beginning on the ﬁrst day following the date of the last general election in the year preceding the year in which the amount is increased and ending on the date of the next general election”; and . . . (e) EFFECTIVE DATE.—The amendments made by this section 2 USC 441a note. shall apply with respect to contributions made on or after January 1, 2003. SEC. 308. DONATIONS TO PRESIDENTIAL INAUGURAL COMMITTEE. (a) IN GENERAL.—Chapter 5 of title 36, United States Code, is amended by— (1) redesignating section 510 as section 511; and (2) inserting after section 509 the following: “§ 510. Disclosure of and prohibition on certain donations

Chapter 5 • 2000 to 2010

“(a) IN GENERAL.—A committee shall not be considered to be the Inaugural Committee for purposes of this chapter unless the committee agrees to, and meets, the requirements of subsections (b) and (c). “(b) DISCLOSURE.—Deadline. Reports. 2 USC 431 note. “(1) IN GENERAL.—Not later than the date that is 90 days after the date of the Presidential inaugural ceremony, the committee shall ﬁle a report with the Federal Election Commission disclosing any donation of money or anything of value made to the committee in an aggregate amount equal to or greater than $200. . . . SEC. 309. PROHIBITION ON FRAUDULENT SOLICITATION OF FUNDS. Section 322 of the Federal Election Campaign Act of 1971 . . . is amended— . . . “(b) FRAUDULENT SOLICITATION OF FUNDS.—No person shall— “(1) fraudulently misrepresent the person as speaking, writing, or otherwise acting for or on behalf of any candidate or political party or employee or agent thereof for the purpose of soliciting contributions or donations; or “(2) willfully and knowingly participate in or conspire to participate in any plan, scheme, or design to violate paragraph (1).” . . . Section 318 of the Federal Election Campaign Act of 1971 . . . is amended— . . . “(c) SPECIFICATION.—Any printed communication described in subsection (a) shall— “(1) be of sufﬁcient type size to be clearly readable by the recipient of the communication; “(2) be contained in a printed box set apart from the other contents of the communication; and “(3) be printed with a reasonable degree of color contrast between the background and the printed statement. “(d) ADDITIONAL REQUIREMENTS.— “(1) COMMUNICATIONS BY CANDIDATES OR AUTHORIZED PERSONS.— “(A) BY RADIO.—Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through radio shall include . . . an audio statement by the candidate that identiﬁes the candidate and states that the candidate has approved the communication. “(B) BY TELEVISION.—Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through television shall include . . . a statement that identiﬁes the candidate and states that the candidate has approved the communication. Such statement— “(i) shall be conveyed by— “(I) an unobscured, full-screen view of the candidate making the statement, or “(II) the candidate in voice-over, accompanied by a clearly identiﬁable photographic or similar image of the candidate; and “(ii) shall also appear in writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds. “(2) COMMUNICATIONS BY OTHERS.—Any communication described in paragraph (3) of subsection (a) which is transmitted through radio or television shall include . . . in a clearly spoken manner, the following audio statement: ‘ ____ is responsible for the content of this advertising.’ (with the blank to be ﬁlled in with the name of the political committee or other person paying for the communication and the name of any connected organization of the payor). If transmitted through

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television, the statement shall be conveyed by an unobscured, full-screen view of a representative of the political committee or other person making the statement, or by a representative of such political committee or other person in voice-over, and shall also appear in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds.”. SEC. 312. INCREASE IN PENALTIES. . . . SEC. 316. RESTRICTION ON INCREASED CONTRIBUTION LIMITS BY TAKING INTO ACCOUNT CANDIDATE’S AVAILABLE FUNDS. Section 315(i)(1) of the Federal Election Campaign Act of 1971 . . . is amended by adding at the end the following: “(E) SPECIAL RULE FOR CANDIDATE’S CAMPAIGN FUNDS.— “(i) IN GENERAL.—For purposes of determining the aggregate amount of expenditures from personal funds under subparagraph (D)(ii), such amount shall include the gross receipts advantage of the candidate’s authorized committee. “(ii) GROSS RECEIPTS ADVANTAGE.—For purposes of clause (i), the term ‘gross receipts advantage’ means the excess, if any, of— “(I) the aggregate amount of 50 percent of gross receipts of a candidate’s authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held, over “(II) the aggregate amount of 50 percent of gross receipts of the opposing candidate’s authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held.”. SEC. 317. CLARIFICATION OF RIGHT OF NATIONALS OF THE UNITED STATES TO MAKE POLITICAL CONTRIBUTIONS. Section 319(b)(2) of the Federal Election Campaign Act of 1971 . . . is amended by inserting after “United States” the following: “or a national of the United States (as deﬁned in section 101(a)(22) of the Immigration and Nationality Act)”. SEC. 318. PROHIBITION OF CONTRIBUTIONS BY MINORS. Title III of the Federal Election Campaign Act of 1971 . . . as amended by section 101, is further amended by adding at the end the following new section: “PROHIBITION OF CONTRIBUTIONS BY MINORS “SEC. 324. An individual who is 17 years old or younger shall . . . not make a contribution to a candidate or a contribution or donation to a committee of a political party.”. SEC. 319. MODIFICATION OF INDIVIDUAL CONTRIBUTION LIMITS FOR HOUSE CANDIDATES IN RESPONSE TO EXPENDITURES FROM PERSONAL FUNDS. (a) INCREASED LIMITS.—Title III of the Federal Election Campaign Act of 1971 . . . is amended by inserting after section 315 the following new section: “MODIFICATION OF CERTAIN LIMITS FOR HOUSE CANDIDATES IN RESPONSE TO PERSONAL FUND EXPENDITURES OF OPPONENTS “SEC. 315A. (a) . . . “(1) IN GENERAL.—Subject to paragraph (3), if the opposition personal funds amount with respect to a candidate for election to the ofﬁce of Representative in, or Delegate or Resident Commissioner to, the Congress exceeds $350,000—

Chapter 5 • 2000 to 2010

“(A) the limit under subsection (a)(1)(A) with respect to the candidate shall be tripled; “(B) the limit under subsection (a)(3) shall not apply with respect to any contribution made with respect to the candidate if the contribution is made under the increased limit allowed under subparagraph (A) during a period in which the candidate may accept such a contribution; and “(C) the limits under subsection (d) with respect to any expenditure by a State or national committee of a political party on behalf of the candidate shall not apply. “(2) DETERMINATION OF OPPOSITION PERSONAL FUNDS AMOUNT.— “(A) IN GENERAL.—The opposition personal funds amount is an amount equal to the excess (if any) of— “(i) the greatest aggregate amount of expenditures from personal funds (as deﬁned in subsection (b)(1)) that an opposing candidate in the same election makes; over “(ii) the aggregate amount of expenditures from personal funds made by the candidate with respect to the election. “(B) SPECIAL RULE FOR CANDIDATE’S CAMPAIGN FUNDS.— “(i) IN GENERAL.—For purposes of determining the aggregate amount of expenditures from personal funds under subparagraph (A), such amount shall include the gross receipts advantage of the candidate’s authorized committee. “(ii) GROSS RECEIPTS ADVANTAGE.—For purposes of clause (i), the term ‘gross receipts advantage’ means the excess, if any, of— “(I) the aggregate amount of 50 percent of gross receipts of a candidate’s authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held, over “(II) the aggregate amount of 50 percent of gross receipts of the opposing candidate’s authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held. . . . “(4) DISPOSAL OF EXCESS CONTRIBUTIONS.— “(A) IN GENERAL.—The aggregate amount of contributions accepted by a candidate or a candidate’s authorized committee under the increased limit under paragraph (1) and not otherwise expended in connection with the election with respect to which such contributions relate shall, not later than 50 days after the date of such election, be used in the manner described in subparagraph (B). . . . “(b) NOTIFICATION OF EXPENDITURES FROM PERSONAL FUNDS.— “(1) IN GENERAL.— “(A) DEFINITION OF EXPENDITURE FROM PERSONAL FUNDS.—In this paragraph, the term ‘expenditure from personal funds’ means— “(i) an expenditure made by a candidate using personal funds; and “(ii) a contribution or loan made by a candidate using personal funds or a loan secured using such funds to the candidate’s authorized committee. “(B) DECLARATION OF INTENT.—Not later than the date Deadline. that is 15 days after the date on which an individual becomes a candidate for the ofﬁce of Representative in, or Delegate or Resident Commissioner to, the Congress, the

275

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U.S. Election Campaigns

candidate shall ﬁle a declaration stating the total amount of expenditures from personal funds that the candidate intends to make, or to obligate to make, with respect to the election that will exceed $350,000. “(C) INITIAL NOTIFICATION.—Not later than 24 hours after a candidate described in subparagraph (B) makes or obligates to make an aggregate amount of expenditures from personal funds in excess of $350,000 in connection with any election, the candidate shall ﬁle a notiﬁcation. . . . TITLE IV—SEVERABILITY; EFFECTIVE DATE SEC. 401. SEVERABILITY. If any provision of this Act or amendment made by this Act, or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and amendments made by this Act, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding. SEC. 402. EFFECTIVE DATES AND REGULATIONS. (a) GENERAL EFFECTIVE DATE.— (1) IN GENERAL.—Except as provided in the succeeding provisions of this section, the effective date of this Act, and the amendments made by this Act, is November 6, 2002. (2) MODIFICATION OF CONTRIBUTION LIMITS.—The amendments made by— (A) section 102 shall apply with respect to contributions made on or after January 1, 2003; and (B) section 307 shall take effect as provided in subsection (e) of such section. (3) SEVERABILITY; EFFECTIVE DATES AND REGULATIONS; JUDICIAL REVIEW.—Title IV shall take effect on the date of enactment of this Act. (4) PROVISIONS NOT TO APPLY TO RUNOFF ELECTIONS.—Section 323(b) of the Federal Election Campaign Act of 1971 . . . shall take effect on November 6, 2002, but shall not apply with respect to runoff elections, recounts, or election contests resulting from elections held prior to such date. (b) SOFT MONEY OF NATIONAL POLITICAL PARTIES.— (1) IN GENERAL.—Except for subsection (b) of such section, section 323 of the Federal Election Campaign Act of 1971 (as added by section 101(a)) shall take effect on November 6, 2002. . . . (2) SOFT MONEY OF POLITICAL PARTIES.—Not later than Deadline. 90 days after the date of enactment of this Act, the Federal Election Commission shall promulgate regulations to carry out title I of this Act and the amendments made by such title. SEC. 403. JUDICIAL REVIEW. 2 USC 437h note. (a) SPECIAL RULES FOR ACTIONS BROUGHT ON CONSTITUTIONAL GROUNDS.—If any action is brought for declaratory or injunctive relief to challenge the constitutionality of any provision of this Act or any amendment made by this Act, the following rules shall apply: (1) The action shall be ﬁled in the United States District Court for the District of Columbia and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code. (2) A copy of the complaint shall be delivered promptly to the Clerk of the House of Representatives and the Secretary of the Senate. (3) A ﬁnal decision in the action shall be reviewable only by appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the ﬁling of

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a notice of appeal within 10 days, and the ﬁling of a jurisdictional statement within 30 days, of the entry of the ﬁnal decision. . . . (c) CHALLENGE BY MEMBERS OF CONGRESS.—Any Member of Congress may bring an action, subject to the special rules described in subsection (a), for declaratory or injunctive relief to challenge the constitutionality of any provision of this Act or any amendment made by this Act. . . . SEC. 502. MAINTENANCE OF WEBSITE OF ELECTION REPORTS. (a) IN GENERAL.—The Federal Election Commission shall maintain a central site on the Internet to make accessible to the public all publicly available electionrelated reports and information. . . .

ANALYSIS As the amendments to the 1971 FECA were passed to address the excesses of the 1972 presidential campaign and the Watergate scandal, so was the BCRA a response to the proliferation of soft money as well as both parties’ fund-raising tactics in the 1990s, particularly the 1996 presidential election, in which President Clinton “rented” the White House’s Lincoln Bedroom to contributors and the Democratic National Committee illegally accepted contributions from foreign nationals. During the late 20th and early 21st centuries, the Democratic Party generally found itself ﬁnancially disadvantaged compared with the GOP, causing it to draw far more ﬁnancial support via soft money channels than the Republicans, who had more success attracting traditional hard money donations. When Republicans took control of the House in December 1994, their leadership introduced a campaign ﬁnance reform bill that appeared to target Democrats, as two of its provisions called for restricting union PACs’ fund-raising ability and limiting the amount of contributions a candidate could receive from outside the candidate’s district or state. Widely criticized by Democrats and even some Republicans, the bill did not advance. But in 1995 Senators John McCain (R, AZ) and Russell Feingold (D, WI) introduced the BCRA. Its major elements banned soft money in elections; severely restricted issue advocacy ads, which are ads that promoted a group’s position without expressly calling for any candidate’s election or defeat; further limited contributions by PACs; and provided free television advertising time to federal candidates who voluntarily accepted campaign spending limits. McCain and Feingold argued that the BCRA was necessary to end big money’s corrosive inﬂuence on elections. Senator Mitch McConnell (R, KY), a self-avowed opponent of all campaign ﬁnance regulation and chairman of the Republican Senate Campaign Committee (RSCC), actively blocked the legislation at every turn, because he believed that restricting the ﬂow of money in elections weakened the parties and violated the First Amendment’s free speech guarantee, as the Supreme Court had ruled in Buckley v. Valeo, 424 U.S. 1 (1976). McConnell employed ﬁlibusters to prevent BCRA from receiving a Senate ﬂoor vote that year. Concurrently in the House, Representatives Christopher Shays (R, CT) and Martin Meehan (D, MA) introduced the BCRA, yet it too failed to make any progress during the 104th Congress because of leadership’s opposition. Several things occurred during 1996 that inﬂuenced congressional and public opinion on campaign ﬁnancing. In June the Supreme Court ruled in Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996) that parties could effectively spend without limits to promote their issue positions so long as the issue

278

U.S. Election Campaigns

ads were not coordinated with any candidates’ campaigns, that is, the parties had to purchase their ads independently of the candidates’ campaign committees. In short order, both parties had raised millions in soft money, or contributions unregulated under federal law, and poured it into the 1996 presidential election. As noted above, President Clinton and the Democratic National Committee also engaged in highly questionable—and occasionally illegal—fund-raising methods that drew scorn from Republicans and outrage from the press and public. In the 105th Congress, Shays and Meehan fought to get their bill out of committee and to the ﬂoor for a vote, but Speaker Gingrich (R, GA) rebuffed them. Not to be denied, the reformers succeeded in having a discharge petition, which requires that a bill be moved directly from a committee to the House ﬂoor for a vote, signed by the necessary 218 members, and following debate a somewhat weaker version of the BCRA passed by a vote of 252–179 in the spring of 1998. Unfortunately, the Senate could not overcome a ﬁlibuster led by Majority Leader Trent Lott (R, MS), and the revised BCRA never came to a vote. This pattern was repeated in the 106th Congress, when the House again passed the BCRA in 1999 and ﬁlibusters blocked it in the Senate. While the 2000 election brought George W. Bush to the White House and Republicans held control of Congress, there were new faces in the Senate, many of whom supported campaign reforms, especially Republicans. Interestingly, however, Democrats’ support for the BCRA began to wane, as they considered the implications of losing access to soft money, their major funding source. In the 107th Congress, the Senate took up the BCRA ﬁrst. In a bargain accepted by McCain, majority leader Lott allowed a vote on the BCRA to occur under an open rule whereby all senators could offer amendments of any kind to the bill. After defeating most amendments, including all of those designed to kill the bill, the Senate passed the BCRA 51–49 on April 2, 2001. One accepted amendment, offered by Carl Levin (D, MI), allowed state and local parties to raise funds, known as Levin Funds, for voter registration and get-out-the-vote drives during federal elections. Individuals may donate up to $10,000 or whatever the limit is under applicable state law, whichever amount is lower. This new soft money pool gave state and local party organizations increased importance, and as will be seen below, helped the BCRA’s passage in the House. Because Shays had convinced enough House Republicans to support the BCRA, pressure fell on Democrats to vote for it. But Democrats, especially African Americans and Hispanics, were wary of relinquishing their access to soft money, and they threatened to oppose the bill. Shays and Meehan agreed to amend the House bill with a version of the Levin amendment (see above), which satisﬁed most Democrats. In July 2001, after a series of complicated maneuvers to avert roadblocks placed by Speaker Dennis Hastert (R, IL), including a rule vote that would have killed the bill by permitting amendments before the ﬁnal vote, Shays and Meehan appeared victorious. But Hastert pulled the bill from the ﬂoor, requiring that another discharge petition to bring the bill to the ﬂoor be ﬁled. As supporters gathered 218 signatures, Republican leaders prepared an alternative, more restrictive, version of BCRA in an effort to peel Republican votes from the Shays-Meehan bill and thereby cause both Shays-Meehan and leadership’s own bill to be defeated, since the Democrats were not expected to support the Republican leaders’ bill.

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279

A banner proclaiming that Congress is for sale is held up by members of the activist group Public Citizen at a rally on Capitol Hill for the Bipartisan Clean Congress Act, June 4, 1996. (AP Photo/Denis Paquin.)

Fortunately for reformers, the Enron scandal became public in the winter of 2002, which solidiﬁed public support for reform and pushed wavering members of both parties to vote for the BCRA. Among the embarrassing revelations were that both parties had received millions in soft money contributions from Enron and its corporate leaders since 1990. On February 14, 2002, the House voted 240–189 for the tougher, leadershipsponsored version of BCRA, and on March 20, the Senate voted 60–40 to accept the House version. President Bush, who had spoken against all versions of the BCRA as it moved through Congress, changed his position, likely because of Enron, and signed the bill on March 27. Among its major provisions, the BCRA banned national party committees, including the parties’ congressionally based campaign committees, from raising unlimited funds from corporations, unions, and individuals that were considered soft money and used for party-building activities. Party-building activities refer to voter registration drives, get-out-the-vote drives, and other such work designed to stimulate party members to vote, including public rallies intended to educate voters about a party’s platform. Party administrative expenses were also included under partybuilding work. Under the FECA, the national party committees had created two separate fundraising accounts: one, to support federal candidates, was regulated under FECA

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rules, and the other, to support nonfederal candidates and party-building work, was essentially free of FECA restrictions. The latter account was for soft money donations. The parties were thus free to raise unlimited soft money from corporations, unions, and individuals, which could give anonymously without concern for contribution limits as long as the money was given to the nonfederal account. BCRA banished the nonfederal accounts and forbade the national party committees from raising soft money. Corporations and unions were banned from making soft money donations, and individual contributions designated for party building were limited to $25,000 per person per year. National party leaders were forbidden to solicit funds from corporations and unions on behalf of state and local party organizations for party-building activities, nor could leaders direct any such contributions to other nonproﬁt, politically engaged organizations, such as 501(c) and 527 groups (see entry dealing with nonproﬁts and the tax code). Finally, national party committees were required to choose between making coordinated expenditures to support their federal candidates or “independent” (or uncoordinated) expenditures; they could not do both under the BCRA as they had under FECA. The committees had to decide immediately following the announcement of their parties’ nominees, and the parties’ decisions also bound their respective congressional campaign committees. The BCRA also banned state and local party committees from using soft money funds to engage in federal election activity, which was deﬁned as party-building activities within 120 days of a federal election. The BCRA also halted political communication by state and local party organizations that referenced federal candidates, either favorably or unfavorably in the same 120-day period. This provision was challenged in McConnell v. Federal Election Commission (2003) (see document). The Levin amendment softened the severe limits placed on state and local parties’ ability to engage in party-building work by creating exceptions. Though cumbersome, the “Levin money” amendment permitted state and local parties to raise and spend money to engage in party building and did allow some mixing of hard and soft money for generic voter mobilization drives during federal elections if there were no clear reference to a federal candidate. The BCRA permitted state and local party organizations to continue raising money for federal candidates alongside their national committee counterparts, but they were subject to the BCRA’s provisions, and the different party committees were authorized to transfer among themselves unlimited monies that were raised legally under the BCRA to support federal candidates. Issue ads came under intense regulation in the BCRA. Called electioneering communications, the ads, sponsored by nonproﬁt, issue advocacy groups and intended to inﬂuence the outcome of federal elections (even if the ad never speciﬁcally endorsed or opposed a federal candidate’s election), were banned from airing 60 days before a federal general, special, or runoff election and 30 days before a primary, convention, or caucus involving federal ofﬁces. The BCRA also required issue advocacy organizations to disclose to the FEC all expenditures for issue ads if greater than $10,000 per year. If the organization expended $10,000 or more on a single ad, the FEC had to be notiﬁed within 24 hours. Electioneering communications were required to be paid for with donations from individual citizens rather than other groups, corporations, or unions. In fact, corporations and unions were completely forbidden from contributing to issue advocacy groups for the purpose of sponsoring issue ads that

Chapter 5 • 2000 to 2010

named federal candidates within 60 days of each federal election. DID YOU KNOW? Section 318 of the FECA was amended to require that all candidate-sponsored campaign advertisements Political Parties and Campaign Finance contain written and oral (where appropriate) statements in which the candidate endorses the contents of In two major opinions, Colorado I (1996) and Colorado the ad. Reformers were adamant that candidates take II (2001), the U.S. Supreme Court provided additional full responsibility for claims made in their commercials, guidance on the amount of money political parties and they believed that candidates would be less likely to could spend on campaigns independent of and in comake unsubstantiated or false claims if they were identiordination with their favored candidates. In Colorado Republican Federal Campaign Committee v. FEC (1996) ﬁed in the ad, because it had been common practice for (Colorado I), the Supreme Court ruled that political parharsh campaign ads to appear without attribution. ties could spend an unlimited amount of hard money The BCRA’s section 307 increased the contribution independently of party candidates. Independent exlimits originally imposed in the 1974 FECA (see Table penditures are not coordinated with candidates or their 5.1) and indexed the limits to inﬂation, which allowed campaigns. Citing the unlikelihood of corruption stemthe ceilings to increase each year. The FEC was emming from truly independent expenditures and the FEC’s failure to demonstrate how corruption might occur, Juspowered to calculate the inﬂation-adjusted limits and tice Breyer maintained that the First Amendment free announce them each election season. Raising contrispeech guarantee extended to money that political parbution limits was a compromise necessary to attract the ties wished to expend to help elect their nominee. Writvotes of moderate Republicans, who believed in caming in dissent, Justice Stevens, who was joined by Justice paign reform in principle but who also realized that the Ginsburg, argued that all money a political party spent original FECA ceilings were unrealistically low given supporting candidates should be treated as contributions and, therefore, subjected to statutory limits. ever-increasing broadcasting costs. In FEC v. Colorado Republican Federal Campaign The BCRA also reafﬁrmed the ban on contribuCommittee (2001) (Colorado II), the Court addressed tions from foreign nationals and corporations and outwhether political parties also had the First Amendment lawed fund-raising, by whatever means, in all federal right to spend unlimited hard money in coordination buildings. There was also a provision, section 304, referred to as the millionaire’s amendment, that protected candidates whose opponents were exceptionally wealthy and capable of self-ﬁnancing their campaigns. In such instances, contribution limits were raised for those giving to a candidate facing a millionaire to help level the ﬁnancial playing ﬁeld. The threshold amounts that triggered the higher contribution limits required a candidate to spend from a personal account. The thresholds were $350,000 for a House candidate, and the sum, multiplied by two, of $150,000 and an amount equal to the state’s voting age population multiplied by 4¢ for a Senate candidate. Another BCRA provision allowed for an immediate challenge to be brought by any member of Congress in federal court under expedited procedures, and Senator McConnell exercised it. In 2003 the Supreme Court rendered its decision in McConnell v. FEC (see document), which upheld most of the BCRA. Subsequent challenges to the BCRA, however, have brought different outcomes. For example, in Federal Election Commission v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) the Court declared that the BCRA’s electioneering communications provision did not apply to ads aired by Wisconsin Right to Life, a nonproﬁt political advocacy corporation. The justices ruled that the group’s advertisements, which were aired within the 60-day primary window to encourage voters to contact their senators and express their opposition to ﬁlibusters of judicial nominees, were legitimate issue advertisements and, therefore, constitutional. This decision served notice that the

281

282 Table 5.1 Federal Election Campaign Act of 1974 and Bipartisan Campaign Reform Act of 2002 Contribution Limits To a Candidate5 Donating Entity

FECA

An Individual

$1,000

National Party Committee PAC (multicandidate)3 PAC (not multicandidate)4 State, District, and Local Party Committee Authorized Campaign Committee Candidate

BCRA

To a National Party Committee

To Any State, Local, or Party Committee

FECA

BCRA

FECA

$20,000

NA

$5,000

$2,000* $2,800** $5,000

Unlimited

$25,000* $30,800** Unlimited

$5,000

$5,000*

$15,000

$15,000

NA

Unlimited

$2,000* $2,400** $5,000 (combined) $2,000

Unlimited

Unlimited

NA

$25,000** $30,800** Unlimited

NA

Unlimited

***

NA NA Depends on ofﬁce†

NA

BCRA $10,000 (combined) Unlimited

To Any Other Political Committee FECA

BCRA

Total Per Year FECA

BCRA

$5,000

$5,000

$25,000

$5,000

$5,000

Unlimited

$46,200** $70,800**1 $43,100**

$5,000

$5,000

Unlimited

Unlimited

Unlimited

$5,000

Unlimited

Unlimited

NA

$5,000 (combined) $10,000 (combined) Unlimited

NA

NA

Unlimited

Unlimited

NA

Unlimited

NA

$5,000 (combined) $5,000

NA

Unlimited

***

***

***

***

***

Dependent on ofﬁce†

Unlimited

Source: Compiled from Federal Election Commission, http://www.fec.gov/pages/brochures/contriblimits.shtml. 1. $46,200 to all candidates and $70,800 to all PACs and parties of which no more than $46,200 may be contributed to state and local party PACs. 2. This limit is shared by the national committees and the national Senate campaign committees. 3. A multicandidate PAC is deﬁned as “a political committee . . . registered . . . for a period of not less than six months, which has received contributions from more than 50 persons, and, except for any state political party organization, has made contributions to ﬁve or more candidates for Federal ofﬁce” (4 U.S.C. 441[a]). 4. A non-multicandidate PAC is formed by a candidate to raise money on the candidate’s behalf or by a group that contributes to less than ﬁve candidates. 5. Candidates that contribute or lend money to their own campaigns. †

Contribution limits for candidates donating to their own campaigns were declared unconstitutional in Buckley v. Valeo (1976).

* The BCRA’s original 2002 limits. ** The BCRA’s 2011–2012 limits, as adjusted for inﬂation in odd numbered years by the FEC. *** Same as for any ordinary individual contributor.

Chapter 5 • 2000 to 2010

Roberts Court was deeply skeptical about the BCRA’s electioneering communications provision, so campaign ﬁnance scholars were not surprised when the Court, in 2010, completely eviscerated that provision of the BCRA with its ruling in Citizens United v. Federal Election Commission (see document), which declared the electioneering communications provision unconstitutional, thereby allowing corporations and unions to make independent expenditures promoting the election or defeat of a candidate.

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DID YOU KNOW? with their parties’ nominees. Writing for the ﬁve-member majority, Justice Souter maintained that coordinated expenditures were different than independent expenditures for constitutional purposes, noting that coordinated limits were needed to prevent circumvention of FECA’s contribution limits. If political parties were allowed to spend unlimited money coordinating with their candidates’ campaigns, individuals who had reached their individual contribution limit—$1,000 at the time— could still contribute money to political parties with the tacit understanding that the donation be spent in support of a particular candidate. The majority concluded that the evidence indicated that this pattern was already occurring. The four dissenters in Colorado II argued that because coordinated party expenditure limits infringed on a party’s core function—electing candidates—the provision should stand notwithstanding any strong evidence of corruption. Writing for the dissenters, Justice Thomas lampooned the supposed evidence of corruption the majority relied on, commenting that when fundamental First Amendment freedoms were at stake, the Court should not defer to the “conjectures” of “political scientists.”

Dwyre, Diana, and Victoria A. Farrar-Myers. 2001. Legislative Labyrinth: Congress and Campaign Finance Reform. Washington, DC: Congressional Quarterly Press. Farrar-Myers, Victoria, and Diana Dwyre. 2008. Limits and Loopholes: The Quest for Money, Free Speech and Fair Elections. Washington, DC: Congressional Quarterly Press. Magleby, David B., J. Quin Monson, and Kelly D. Patterson. 2007. Electing Congress: New Rules for an Old Game. Upper Saddle River, NJ: Pearson Prentice Hall. Malbin, Michael J., ed. 2003. Life after Reform: When the Bipartisan Campaign Finance Reform Act . . . Meets Politics. Lanham, MD: Rowman & Littleﬁeld. Malbin, Michael J. 2006. The Election after Reform: Money, Politics, and the Bipartisan Campaign Reform Act. Lanham, MD: Rowman & Littleﬁeld. Skinner, Richard M. 2007. More than Money: Interest Group Action in Congressional Elections. Lanham, MD: Rowman & Littleﬁeld.

• Document: McConnell v. Federal Election Commission, 540 U.S. 93 (2003) • Date: Decided December 10, 2003 • Signiﬁcance: The Supreme Court upheld the major provisions of the Bipartisan Campaign Reform Act (BCRA), reasoning Congress rationally concluded that large, unregulated soft money donations to the national political parties could easily corrupt the political process and effectively weaken, if not destroy, the candidate contribution limits created in the 1971 FECA. McConnell was a major decision, because BCRA marked the ﬁrst signiﬁcant federal campaign ﬁnance reform legislation since 1971. Proponents of the measure argued the soft money ban was necessary to prevent actual and apparent corruption. Opponents maintained the soft money ban infringed on First Amendment free speech rights. The Rehnquist Court established that the First Amendment gives Congress room to ban soft money in national elections in the interest of preserving the integrity of the political system.

DOCUMENT McConnell v. FEC, 540 U.S. 93 (2003) Justice Stevens and Justice O’Connor delivered the opinion of the Court with respect to BCRA Titles I and II, in which Justices Souter, Ginsburg, and Breyer joined The Bipartisan Campaign Reform Act of 2002 (BCRA) contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA), the Communications Act of 1934, and other portions of the United States Code that are challenged in these cases. In this opinion we discuss Titles I and II of BCRA. . . . 284

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I More than a century ago the “sober-minded Elihu Root” advocated legislation that would prohibit political contributions by corporations in order to prevent “the great aggregations of wealth, from using their corporate funds, directly or indirectly,” to elect legislators who would “vote for their protection and the advancement of their interests as against those of the public.” In Root’s opinion, such legislation would “strik[e] at a constantly growing evil which has done more to shake the conﬁdence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government.” The Congress of the United States has repeatedly enacted legislation endorsing Root’s judgment. BCRA is the most recent federal enactment designed “to purge national politics of what was conceived to be the pernicious inﬂuence of ‘big money’ campaign contributions.” As Justice Frankfurter explained. . . . the ﬁrst such enactment responded to President Theodore Roosevelt’s call for legislation forbidding all contributions by corporations “ ‘to any political committee or for any political purpose.’ ” In his annual message to Congress in December 1905, President Roosevelt stated that “directors should not be permitted to use stockholders’ money” for political purposes, and he recommended that “a prohibition” on corporate political contributions “would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.” The resulting 1907 statute completely banned corporate contributions of “money . . . in connection with” any federal election. Congress soon amended the statute to require the public disclosure of certain contributions and expenditures and to place “maximum limits on the amounts that congressional candidates could spend in seeking nomination and election.” In 1925 Congress extended the prohibition of “contributions” “to include ‘anything of value,’ and made acceptance of a corporate contribution as well as the giving of such a contribution a crime.” During the debates preceding that amendment, a leading Senator characterized “the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions” as “one of the great political evils of the time.” We upheld the amended statute against a constitutional challenge. . . . Three important developments in the years after our decision in Buckley v. Valeo (1976) persuaded Congress that further legislation was necessary to regulate the role that corporations, unions, and wealthy contributors play in the electoral process. As a preface to our discussion of the speciﬁc provisions of BCRA, we comment brieﬂy on the increased importance of “soft money,” the proliferation of “issue ads,” and the disturbing ﬁndings of a Senate investigation into campaign practices related to the 1996 federal elections.

Soft Money Under FECA, “contributions” must be made with funds that are subject to the Act’s disclosure requirements and source and amount limitations. Such funds are known as “federal” or “hard” money. FECA deﬁnes the term “contribution,” however, to include only the gift or advance of anything of value “made by any person for the purpose of inﬂuencing any election for Federal ofﬁce.” 2 U.S. C. §431(8)(A)(i). Donations made solely for the purpose of inﬂuencing state or local elections are therefore

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unaffected by FECA’s requirements and prohibitions. As a result, prior to the enactment of BCRA, federal law permitted corporations and unions, as well as individuals who had already made the maximum permissible contributions to federal candidates, to contribute “nonfederal money”—also known as “soft money”—to political parties for activities intended to inﬂuence state or local elections. Shortly after Buckley was decided, questions arose concerning the treatment of contributions intended to inﬂuence both federal and state elections. Although a literal reading of FECA’s deﬁnition of “contribution” would have required such activities to be funded with hard money, the FEC ruled that political parties could fund mixed-purpose activities—including get-out-the-vote drives and generic party advertising—in part with soft money. In 1995 the FEC concluded that the parties could also use soft money to defray the costs of “legislative advocacy media advertisements,” even if the ads mentioned the name of a federal candidate, so long as they did not expressly advocate the candidate’s election or defeat. As the permissible uses of soft money expanded, the amount of soft money raised and spent by the national political parties increased exponentially. . . . In the year 2000, for example, the national parties diverted $280 million—more than half of their soft money—to state parties. Many contributions of soft money were dramatically larger than the contributions of hard money permitted by FECA. . . . Moreover, the largest corporate donors often made substantial contributions to both parties. Such practices corroborate evidence indicating that many corporate contributions were motivated by a desire for access to candidates and a fear of being placed at a disadvantage in the legislative process relative to other contributors, rather than by ideological support for the candidates and parties. Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves. Candidates often directed potential donors to party committees and tax-exempt organizations that could legally accept soft money. For example, a federal legislator running for reelection solicited soft money from a supporter by advising him that even though he had already “contributed the legal maximum” to the campaign committee, he could still make an additional contribution to a joint program supporting federal, state, and local candidates of his party. Such solicitations were not uncommon. The solicitation, transfer, and use of soft money thus enabled parties and candidates to circumvent FECA’s limitations on the source and amount of contributions in connection with federal elections.

Issue Advertising In Buckley we construed FECA’s disclosure and reporting requirements, as well as its expenditure limitations, “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identiﬁed candidate.” As a result of that strict reading of the statute, the use or omission of “magic words” such as “Elect John Smith” or “Vote Against Jane Doe” marked a bright statutory line separating “express advocacy” from “issue advocacy.” Express advocacy was subject to FECA’s limitations and could be ﬁnanced only using hard money. The political parties, in other words, could not use soft money to sponsor ads that used any magic words, and corporations

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and unions could not fund such ads out of their general treasuries. So-called issue ads, on the other hand, not only could be ﬁnanced with soft money, but could be aired without disclosing the identity of, or any other information about, their sponsors. While the distinction between “issue” and express advocacy seemed neat in theory, the two categories of advertisements proved functionally identical in important respects. Both were used to advocate the election or defeat of clearly identiﬁed federal candidates, even though the so-called issue ads eschewed the use of magic words. Little difference existed, for example, between an ad that urged viewers to “vote against Jane Doe” and one that condemned Jane Doe’s record on a particular issue before exhorting viewers to “call Jane Doe and tell her what you think.” Indeed, campaign professionals testiﬁed that the most effective campaign ads, like the most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the magic words. Moreover, the conclusion that such ads were speciﬁcally intended to affect election results was conﬁrmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election. Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads, and those expenditures, like soft-money donations to the political parties, were unregulated under FECA. Indeed, the ads were attractive to organizations and candidates precisely because they were beyond FECA’s reach, enabling candidates and their parties to work closely with friendly interest groups to sponsor so-called issue ads when the candidates themselves were running out of money. Because FECA’s disclosure requirements did not apply to so-called issue ads, sponsors of such ads often used misleading names to conceal their identity. “Citizens for Better Medicare,” for instance, was not a grassroots organization of citizens, as its name might suggest, but was instead a platform for an association of drug manufacturers. And “Republicans for Clean Air,” which ran ads in the 2000 Republican Presidential primary, was actually an organization consisting of just two individuals—brothers who together spent $25 million on ads supporting their favored candidate. . . .

III Title I is Congress’ effort to plug the soft-money loophole. The cornerstone of Title I is new FECA §323(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. In short, §323(a) takes national parties out of the soft-money business. The remaining provisions of new FECA §323 largely reinforce the restrictions in §323(a). New FECA §323(b) prevents the wholesale shift of soft-money inﬂuence from national to state party committees by prohibiting state and local party committees from using such funds for activities that affect federal elections. These “Federal election activit[ies],” deﬁned in new FECA §301(20)(A), are almost identical to the mixed-purpose activities that have long been regulated under the FEC’s pre-BCRA allocation regime. New FECA §323(d) reinforces these soft-money restrictions by prohibiting political parties from soliciting and donating funds to tax-exempt organizations that engage in electioneering activities. New FECA §323(e) restricts federal candidates and ofﬁceholders from receiving, spending, or soliciting soft money in connection with federal elections and limits their ability to do so in connection with state and local elections. Finally, new FECA §323(f) prevents circumvention of the restrictions on national, state, and local party committees by prohibiting state and

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local candidates from raising and spending soft money to fund advertisements and other public communications that promote or attack federal candidates. Plaintiffs mount a facial First Amendment challenge to new FECA §323, as well as challenges based on the Elections Clause, U.S. Const., Art. I, §4, principles of federalism, and the equal protection component of the Due Process Clause. We address these challenges in turn.

A In Buckley and subsequent cases, we have subjected restrictions on campaign expenditures to closer scrutiny than limits on campaign contributions. . . . In these cases we have recognized that contribution limits, unlike limits on expenditures, “entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication.”. . . . We have recognized that contribution limits may bear “more heavily on the associational right than on freedom to speak” since contributions serve “to afﬁliate a person with a candidate” and “enabl[e] like-minded persons to pool their resources,” Buckley. Unlike expenditure limits, however, which “preclud[e] most associations from effectively amplifying the voice of their adherents,” contribution limits both “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 allow associations “to aggregate large sums of money to promote effective advocacy.” The “overall effect” of dollar limits on contributions is “merely to require candidates and political committees to raise funds from a greater number of persons.” Thus, a contribution limit involving even “signiﬁcant interference” with associational rights is nevertheless valid if it satisﬁes the “lesser demand” of being “ ’closely drawn’ ” to match a “ ‘sufﬁciently important interest.’ ” Our treatment of contribution restrictions reﬂects more than the limited burdens they impose on First Amendment freedoms. It also reﬂects the importance of the interests that underlie contribution limits—interests in preventing “both the actual corruption threatened by large ﬁnancial contributions and the eroding of public conﬁdence in the electoral process through the appearance of corruption.”. . . . We have said that these interests directly implicate “the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process.” Because the electoral process is the very “means through which a free society democratically translates political speech into concrete governmental action,” contribution limits, like other measures aimed at protecting the integrity of the process, tangibly beneﬁt public participation in political debate. For that reason, when reviewing Congress’ decision to enact contribution limits, “there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words strict scrutiny.” The less rigorous standard of review we have applied to contribution limits. . . . shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise. It also provides Congress with sufﬁcient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process. . . . Like the contribution limits we upheld in Buckley, §323’s restrictions have only a marginal impact on the ability of contributors, candidates, ofﬁceholders, and parties

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to engage in effective political speech. Complex as its provisions may be, §323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to inﬂuence federal elections, federal candidates, and federal ofﬁceholders. Plaintiffs contend that we must apply strict scrutiny to §323 because many of its provisions restrict not only contributions but also the spending and solicitation of funds raised outside of FECA’s contribution limits. But for purposes of determining the level of scrutiny, it is irrelevant that Congress chose in §323 to regulate contributions on the demand rather than the supply side. The relevant inquiry is whether the mechanism adopted to implement the contribution limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not. That is not the case here. . . . . The solicitation provisions of §323(a) and §323(e), which restrict the ability of national party committees, federal candidates, and federal ofﬁceholders to solicit nonfederal funds, leave open ample opportunities for soliciting federal funds on behalf of entities subject to FECA’s source and amount restrictions. Even §323(d), which on its face enacts a blanket ban on party solicitations of funds to certain taxexempt organizations, nevertheless allows parties to solicit funds to the organizations’ federal PACs. As for those organizations that cannot or do not administer PACs, parties remain free to donate federal funds directly to such organizations, and may solicit funds expressly for that purpose. And as with §323(a), §323(d) places no limits on other means of endorsing tax-exempt organizations or any restrictions on solicitations by party ofﬁcers acting in their individual capacities. Section 323 thus shows “due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views.” The fact that party committees and federal candidates and ofﬁceholders must now ask only for limited dollar amounts or request that a corporation or union contribute money through its PAC in no way alters or impairs the political message “intertwined” with the solicitation. . . . The restriction here tends to increase the dissemination of information by forcing parties, candidates, and ofﬁceholders to solicit from a wider array of potential donors. As with direct limits on contributions, therefore, §323’s spending and solicitation restrictions have only a marginal impact on political speech. Finally, plaintiffs contend that the type of associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckley’s contribution limits, and merit the type of strict scrutiny we have applied to attempts to regulate the internal processes of political parties. In making this argument, plaintiffs greatly exaggerate the effect of §323, contending that it precludes any collaboration among national, state, and local committees of the same party in fundraising and electioneering activities. We do not read the provisions in that way. . . .

New FECA §323(a)’s Restrictions on National Party Committees The core of Title I is new FECA §323(a), which provides that “national committee[s] of a political party . . . may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.” 2 U.S. C. A. §441i(a)(1) (Supp. 2003). The prohibition extends

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to “any ofﬁcer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, ﬁnanced, or maintained, or controlled by such a national committee.” §441(a)(2). The main goal of §323(a) is modest. In large part, it simply effects a return to the scheme that was approved in Buckley and that was subverted by the creation of the FEC’s allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money. Under that allocation regime, national parties were able to use vast amounts of soft money in their efforts to elect federal candidates. Consequently, as long as they directed the money to the political parties, donors could contribute large amounts of soft money for use in activities designed to inﬂuence federal elections. New §323(a) is designed to put a stop to that practice.

1. Governmental Interests Underlying New FECA §323(a) The Government defends §323(a)’s ban on national parties’ involvement with soft money as necessary to prevent the actual and apparent corruption of federal candidates and ofﬁceholders. Our cases have made clear that the prevention of corruption or its appearance constitutes a sufﬁciently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-forvotes exchanges. . . . Of “almost equal” importance has been the Government’s interest in combating the appearance or perception of corruption engendered by large campaign contributions. Take away Congress’ authority to regulate the appearance of undue inﬂuence and “the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” And because the First Amendment does not require Congress to ignore the fact that “candidates, donors, and parties test the limits of the current law,” these interests have been sufﬁcient to justify not only contribution limits themselves, but laws preventing the circumvention of such limits. ”The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty or the plausibility of the justiﬁcation raised.” Shrink Missouri. The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and ofﬁceholders is neither novel nor implausible. For nearly 30 years, FECA has placed strict dollar limits and source restrictions on contributions that individuals and other entities can give to national, state, and local party committees for the purpose of inﬂuencing a federal election. The premise behind these restrictions has been, and continues to be, that contributions to a federal candidate’s party in aid of that candidate’s campaign threaten to create—no less than would a direct contribution to the candidate—a sense of obligation. This is particularly true of contributions to national parties, with which federal candidates and ofﬁceholders enjoy a special relationship and unity of interest. . . . The question for present purposes is whether large soft-money contributions to national party committees have a corrupting inﬂuence or give rise to the appearance of corruption. Both common sense and the ample record in these cases conﬁrm Congress’ belief that they do. As set forth above, the FEC’s allocation regime has invited widespread circumvention of FECA’s limits on contributions to parties

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for the purpose of inﬂuencing federal elections. Under this system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the speciﬁc purpose of inﬂuencing a particular candidate’s federal election. It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude. The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of ofﬁceholders, with the national parties serving as willing intermediaries. Thus, despite FECA’s hard-money limits on direct contributions to candidates, federal ofﬁceholders have commonly asked donors to make soft-money donations to national and state committees “solely in order to assist federal campaigns,” including the ofﬁceholder’s own. Parties kept tallies of the amounts of soft money raised by each ofﬁceholder, and “the amount of money a Member of Congress raise[d] for the national political committees often affect[ed] the amount the committees g[a]ve to assist the Member’s campaign.” Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. National party committees often teamed with individual candidates’ campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party’s higher contribution limits while still allowing donors to give to their preferred candidate. Even when not participating directly in the fundraising, federal ofﬁceholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to ofﬁceholders. . . . Particularly telling is the fact that, in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking inﬂuence, or avoiding retaliation, rather than promoting any particular ideology. . . . In sum, there is substantial evidence to support Congress’ determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption. . . .

IV Title II of BCRA, entitled “Noncandidate Campaign Expenditures,” is divided into two subtitles: “Electioneering Communications” and “Independent and Coordinated Expenditures.” We consider each challenged section of these subtitles in turn.

BCRA §201’s Deﬁnition of “Electioneering Communication” The ﬁrst section of Title II, §201, comprehensively amends FECA §304, which requires political committees to ﬁle detailed periodic ﬁnancial reports with the FEC. The amendment coins a new term, “electioneering communication,” to replace the narrowing construction of FECA’s disclosure provisions adopted by this Court in Buckley. As discussed further below, that construction limited the coverage of FECA’s disclosure requirement to communications expressly advocating the election or defeat of particular candidates. By contrast, the term “electioneering communication”

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is not so limited, but is deﬁned to encompass any “broadcast, cable, or satellite communication” that “(I) refers to a clearly identiﬁed candidate for Federal ofﬁce; “(II) is made within— “(aa) 60 days before a general, special, or runoff election for the ofﬁce sought by the candidate; or “(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the ofﬁce sought by the candidate; and “(III) in the case of a communication which refers to a candidate other than President or Vice President, is targeted to the relevant electorate.” 2 U.S. C. A. §434(f) (3)(A)(i) (Supp. 2003). . . . In addition to setting forth this deﬁnition, BCRA’s amendments to FECA §304 specify signiﬁcant disclosure requirements for persons who fund electioneering communications. BCRA’s use of this new term is not, however, limited to the disclosure context: A later section of the Act restricts corporations’ and labor unions’ funding of electioneering communications. Plaintiffs challenge the constitutionality of the new term as it applies in both the disclosure and the expenditure contexts. The major premise of plaintiffs’ challenge to BCRA’s use of the term “electioneering communication” is that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech. Thus, plaintiffs maintain, Congress cannot constitutionally require disclosure of, or regulate expenditures for, “electioneering communications” without making an exception for those “communications” that do not meet Buckley’s deﬁnition of express advocacy. That position misapprehends our prior decisions, for the express advocacy restriction was an endpoint of statutory interpretation, not a ﬁrst principle of constitutional law. In Buckley we began by examining. . . . which restricted expenditures “relative to a clearly identiﬁed candidate,” and we found that the phrase “relative to” was impermissibly vague. We concluded that the vagueness deﬁciencies could “be avoided only by reading §608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate.” We provided examples of words of express advocacy, such as “vote for,” “elect,” “support,” . . . “defeat,” [and] “reject,” and those examples eventually gave rise to what is now known as the “magic words” requirement. . . . Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command. In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. . . . Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. . . . Buckley’s magic-words requirement is functionally meaningless. Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted. . . . Buckley’s express advocacy line,

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in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the ﬂaws it found in the existing system.

BCRA §203’s Prohibition of Corporate and Labor Disbursements for Electioneering Communications Since our decision in Buckley, Congress’ power to prohibit corporations and unions from using funds in their treasuries to ﬁnance advertisements expressly advocating the election or defeat of candidates in federal elections has been ﬁrmly embedded in our law. The ability to form and administer separate segregated funds authorized by FECA §316, 2 U.S. C. A. §441b has provided corporations and unions with a constitutionally sufﬁcient opportunity to engage in express advocacy. That has been this Court’s unanimous view, and it is not challenged in this litigation. Section 203 of BCRA amends FECA §316(b)(2) to extend this rule, which previously applied only to express advocacy, to all “electioneering communications” covered by the deﬁnition of that term in amended FECA §304(f)(3), discussed above. Thus, under BCRA, corporations and unions may not use their general treasury funds to ﬁnance electioneering communications, but they remain free to organize and administer segregated funds, or PACs, for that purpose. Because corporations can still fund electioneering communications with PAC money, it is “simply wrong” to view the provision as a “complete ban” on expression rather than a regulation. . . . . . . . Plaintiffs argue that the justiﬁcations that adequately support the regulation of express advocacy do not apply to signiﬁcant quantities of speech encompassed by the deﬁnition of electioneering communications. This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justiﬁcations for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to inﬂuence the voters’ decisions and have that effect. The precise percentage of issue ads that clearly identiﬁed a candidate and were aired during those relatively brief preelection time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. Nevertheless, the vast majority of ads clearly had such a purpose. Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may ﬁnance genuine issue ads during those time frames by simply avoiding any speciﬁc reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund . . . . . . We afﬁrm the District Court’s judgment to the extent that it upheld the constitutionality of FECA §316(b)(2); to the extent that it invalidated any part of §316(b) (2), we reverse the judgment.

ANALYSIS Campaign ﬁnance reports from 1996 to 2000 revealed extraordinary growth in soft money donations to political parties, that is, unlimited money given to parties for party-building activities and issue ads. In response, campaign ﬁnance reformers worked diligently for seven years before ﬁnally attaining success in 2002 with the passage of the Bipartisan Campaign Reform Act (BCRA) (see document). The act

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Campaign Finance Loophole, a cartoon by Mike Keefe. While the McCain-Feingold law stopped soft money from reaching the political parties, that soft money found its way to other political actors, primarily 527 interest groups. (© 2002 Mike Keefe, The Denver Post, and PoliticalCartoons.com. Courtesy of Cagle Cartoons, Inc.)

sought to limit the inﬂuence of corporations and individuals in the political process in many different ways. Titles I (soft money ban) and II (electioneering communications) constituted the two most controversial provisions. Title I amended the Federal Election Campaign Act of 1971 by banning national parties from receiving or spending soft money. The act also banned state and local parties from receiving or spending soft money to inﬂuence federal elections, although the Levin amendment created an exemption, allowing individuals to contribute up to $10,000 to state and local party organizations for party-building activities that might affect federal elections. By a 5–4 vote, the Supreme Court upheld the provisions of Title I against a constitutional challenge. Writing for the majority, Justices Stevens and O’Connor upheld the soft money ban because Congress was free to conclude that large contributions to parties would likely cause actual or apparent corruption and, without a soft money ban, contributors could skirt the contribution limits found in the FECA. In short, the Court found Congress was within its power to determine that soft money was a campaign problem and, therefore, found no First Amendment violations with the prohibition ban on receiving, directing, and spending soft money. Other provisions of Title I are listed here. •

Section 323(d) Ban on national, state, and local party committees soliciting for nonproﬁts: This provision forbade national, state, and local party committees and ofﬁcials from soliciting for, or making or directing

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•

•

contributions to, section 501(c) tax exempt organizations that make expenditures in connection with a federal election or to section 527 entities other than a political committee or a state or local political committee. This provision was upheld as a valid measure for combating circumvention of campaign ﬁnance laws. Section 323(e) Ban on federal ofﬁceholders and candidates soliciting soft money: This provision forbids federal ofﬁceholders and candidates from soliciting, receiving, directing, transferring, or spending soft money in connection with federal, state, and local elections. This provision was upheld as a valid measure for combating circumvention of campaign ﬁnance laws. Section 323(f) Ban on state and local ofﬁceholders and candidates soliciting soft money to inﬂuence federal elections: This provision forbids state and local ofﬁceholders and candidates from raising and spending soft money that will be used to discuss federal candidates. This provision was upheld as a valid measure for combating circumvention of campaign ﬁnance laws.

Title II (§203) also amended FECA by forbidding corporations and unions from directly using their treasury funds to ﬁnance electioneering communications. In Buckley v. Valeo (1976) the Supreme Court ruled that corporations and unions could not use treasuries to fund advertisements that expressly advocated the election or defeat “of a clearly identiﬁed candidate for federal ofﬁce.” In footnote 52, the Supreme Court provided several examples of words that expressly advocated, such as “vote for,” “oppose,” and “reject.” Campaign ﬁnance reformers were upset that corporations and unions had circumvented the FECA by running sham issue ads that heavily criticized or championed candidates but had not expressly called for the election or defeat of that candidate. Therefore, BCRA’s Title II deﬁned electioneering communication as “any communication that names a federal candidate for elected ofﬁce and is targeted to the electorate.” By the same 5–4 vote, the Supreme Court upheld the facial First Amendment challenge to section 203. Justices Stevens and O’Connor maintained that the new ban on electioneering communications was not

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DID YOU KNOW? Supreme Court Rulings on State Campaign Finance Schemes In its landmark campaign ﬁnance decision, Buckley v. Valeo (1976) (see document), the Court struck down expenditure caps on campaigns but upheld contribution limits. In Nixon v. Shrink Missouri Government PAC (2000), the Court upheld a $1,075 contribution ceiling for certain Missouri elected ofﬁces, but stopped short of declaring that the federal limits, with or without adjustment for inﬂation, were the legal standards for state contribution limits. Nevertheless, the Court deferred to the Missouri legislature’s judgment that the contribution limits were needed to combat corruption. The Supreme Court’s deference on state campaign ﬁnance schemes was tested in Randall v. Sorrell (2006), when it was asked to rule on the constitutionality of a Vermont campaign ﬁnance law that imposed extremely strict mandatory expenditure limits and severe contribution limits. The Court concluded that Vermont’s contribution and expenditure limits were inconsistent with the First Amendment. Concerned about the soaring costs of campaigns and the pervasive role of money in politics, Vermont passed Act 64, which took effect immediately after the 1998 elections. The law placed scaled expenditure limits on statewide ofﬁces, with the gubernatorial race the highest at $300,000 per candidate. As for Act 64’s contribution limits, the amounts individuals could give to a candidate for state ofﬁce during a “two-year general election cycle” were as follows: governor, lieutenant governor, and other statewide ofﬁces, $400; state senator, $300; and state representative, $200. The contribution limits were not indexed for inﬂation. Under the law, political parties were treated as individuals, capping their maximum contribution to a candidate’s campaign for governor at $400. The act provided for a few exceptions to the contribution limits by not placing them on candidates and their families and by not counting volunteer activities as contributions. In a 6–3 decision the Court declared Vermont’s expenditure and contribution limits unconstitutional as too strict and, therefore, inconsistent with Buckley v. Valeo (1976) and the First Amendment. Writing for the majority, Justice Breyer noted that expenditure limits had always been subject to strict judicial scrutiny and argued that many justices had expressed concern that a very low contribution limit might unjustly beneﬁt incumbents and protect them from real competition. The dissenters wished the Court had given more weight and consideration to the ﬁndings of the Vermont legislature.

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a complete ban on free speech since corporations and unions were free to spend PAC money (that is, money DID YOU KNOW? from a separate, segregated fund) on ads or engage in electioneering communications outside the windows States Differ Greatly in Their Regulations of Congress established (30 days for primaries, 60 days for Campaign Finance general elections). Four justices dissented in McConnell. Although the Justice Louis Brandeis described American state governdissenters believed the bans on soft money and electionments as the laboratories of democracy, because states eering communication by corporations and unions viofreely experimented with different approaches to solve lated the First Amendment’s Free Speech Clause, the common problems. Such is the case with funding campaigns. Beginning in the 1890s, states passed publicity justices wrote their own opinions explaining their paracts that required candidates to disclose their contribticular concerns with the law. The principal dissent was utors’ names and amounts, preceding federal laws by ﬁled by Justice Kennedy, in which he took issue with 20 years. As the use of mass media advertising and prothe majority’s new, broader conception of corruption. fessional political consultants became common after Justice Kennedy questioned the majority’s contention 1960, campaign costs escalated markedly and more that candidates could be corrupted by individual conmoney ﬂowed into federal and state elections. But federal legislation to restrict campaign contributions and tributions to political parties. Chief Justice Rehnquist spending, namely, the 1971 Federal Election Campaign believed the soft money ban to be overinclusive because Act and its amendments (see document) and the Biparthe ban forbade many small contributions to parties that tisan Campaign Reform Act (BCRA) (see document) of were clearly not intended to produce actual or apparent 2002, rarely affected the states. Most states, therefore, corruption. Justice Scalia’s opinion emphasized that the acted individually in some fashion to limit campaign real reason for the BCRA was to protect incumbents contributions, spending, or both, but not all states did. Fourteen states placed no ceilings on PACs’ contribuand hinder challengers. Justice Scalia maintained that tions to candidates; several states, notably Alaska and incumbents beneﬁted from hard money while incumWashington, banned contributions from out-of-state bents were disproportionately harmed by the soft money PACs; four states allowed unlimited cash contributions ban. Justice Thomas’s dissent criticized restrictions on to candidates from individuals (an additional 12 states contributions and called for the reversal of Buckley v. made no speciﬁc reference to cash donations), though Valeo (1976). most states required that cash contributions be itemized on campaign reports; and 13 states imposed no limits The McConnell dissenters were partially vindicated on how much individuals could give to political parties. years later. Although the Supreme Court upheld the faFourteen states restricted corporate and union contribucial challenge to section 203 in McConnell (2003), the tions to parties while simultaneously placing no limits Roberts Court took up whether (1) Title II accommoon any other source. All states have some form of camdated as-applied challenges and (2) whether the applipaign ﬁnance reporting requirements for campaign concation of section 203 to a handful of 2004 Wisconsin tributions, expenditures, or both. Thirty-six states posted their candidates’ campaign contribution reports online Right to Life television advertisements was constitutional. In 2006 in Wisconsin Right to Life, Inc. v. Federal Election Commission, 546 U.S. 410 (WRTL I), the Supreme Court unanimously ruled that McConnell did not purport to preclude future as-applied challenges to section 203. The next year the Court accepted the question of whether Wisconsin Right to Life’s television advertisements attacking Wisconsin senators Russ Feingold and Herbert Kohl for supporting the ﬁlibusters of federal court nominees were permitted under section 203. The case was Federal Election Commission v. Wisconsin Right to Life, Inc. (2007) (WRTL II). In WRTL II, the Supreme Court ruled section 203 unconstitutional as applied to Wisconsin Right to Life’s television ads, changed course on electioneering communications, and effectively gutted McConnell v. Federal Election Commission’s (2003) treatment of electioneering communications. Writing for the ﬁve-member

Chapter 5 • 2000 to 2010

majority, Chief Justice Roberts noted that the ads in question were not the “functional equivalent” of express campaign speech. Rather than allowing juries to decide whether the intent behind an issue ad was to target the electorate and change the course of an election—an enterprise deemed too subjective and open for interpretation—Chief Justice Roberts wrote that the “proper standard for an as-applied challenge to BCRA section 203 must be objective” (emphasis added). For an issue ad to be deemed the functional equivalent of express advocacy, the advertisement must be “susceptible of no reasonable interpretation other than as an appeal to vote for or against a speciﬁc candidate.” This new standard effectively stripped the McConnell principle, which said that Congress was within its power to stop sham issue ads. While the BCRA’s ban on soft money remains good law, the act’s prohibition on electioneering communications was ﬁnally declared unconstitutional in Citizens United v. Federal Election Commission (2010) (see document). In short, since the 2003 McConnell decision, the Court signiﬁcantly altered its understanding of campaign ﬁnance regulation. The primary reason for the shift in Court doctrine was the change in Court composition. In 2005 Justice Alito replaced Justice O’Connor, author of the majority opinion in McConnell. Justice O’Connor maintained that Congress has the constitutional authority to regulate campaign ﬁnance so that corporations and unions did not gain an unfair advantage in the electoral arena. Justice Alito, on the other hand, believed that restrictions, such as section 203, placed an undue free speech burden on corporations and unions by not allowing them to participate and run issue ads on issues important to their members.

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DID YOU KNOW? and 24 posted candidates’ expenditure reports, while 26 states created independent commissions to monitor campaign ﬁnancing. Since 2002 soft money has also played an increasingly important role in state elections, as have 527 and 501(c) groups (see document), adding signiﬁcantly to the total dollars contributed to all state elected ofﬁcials in all states (except Virginia, whose data were unavailable): approximately $2.4 billion (see the Money in State Politics Web site, http://www.followthe money.org/). Finally, 25 states have some form of full or partial public ﬁnancing system for some or all state ofﬁces, with Maine’s Clean Election law for its state legislature often cited as a model (See Table 4.1).

Further Reading Center for Public Integrity. http://www.publicintegrity. org/. Malbin, Michael J., and Peter W. Bruscoe. Forthcoming. “Campaign Finance Policy in the State and City of New York.” In Gerald Benjamin, ed., Handbook of New York State Politics. New York: Oxford University Press. Malbin, Michael J., and Thomas L. Greis. 1998. The Day after Reform: Sobering Campaign Finance Lessons from the States. Albany, NY: Rockefeller Institute. National Conference of State Legislatures. http://www. ncsl.org/. National Institute for Money in State Politics. http:// www.followthemoney.org/. Schultz, David, ed. 2002. Money, Politics, and Campaign Finance Reform Law in the States. Durham, NC: Carolina Academic Press. Thompson, Joel, and Gary Moncrief. 1998. Campaign Finance in State Legislative Elections. Washington, DC: Congressional Quarterly Press.

• Document: The Honest Leadership and Open Government Act, Section 204 • Date: Signed into law by President George W. Bush on September 15, 2007 • Signiﬁcance: The Honest Leadership and Open Government Act substantially amended the Lobbying and Disclosure Act of 1995. Section 204 speciﬁcally amended section 304 of the 1971 Federal Election Campaign Act to require that lobbyists disclose bundled campaign contributions to all candidates in federal elections.

DOCUMENT The Honest Leadership and Open Government Act PL 110-81 121 Stat. 735 Section 204 SEC. 204. DISCLOSURE OF BUNDLED CONTRIBUTIONS. (a) Disclosure- Section 304 of the Federal Election Campaign Act of 1971 (2 U.S.C. 434) is amended by adding at the end the following new subsection: (i) Disclosure of Bundled Contributions(1) REQUIRED DISCLOSURE- Each committee described in paragraph (6) shall include in the ﬁrst report required to be ﬁled under this section after each covered period (as deﬁned in paragraph (2)) a separate schedule setting forth the name, address, and employer of each person reasonably known by the committee to be a person described in paragraph (7) who provided 2 or more bundled contributions to the committee in an aggregate amount greater than the applicable threshold (as deﬁned in paragraph (3)) during the covered period, and the aggregate amount of the bundled contributions provided by each such person during the covered period. . . . (3) APPLICABLE THRESHOLD298

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(A) IN GENERAL- In this subsection, the ‘applicable threshold’ is $15,000, except that in determining whether the amount of bundled contributions provided to a committee by a person described in paragraph (7) exceeds the applicable threshold, there shall be excluded any contribution made to the committee by the person or the person’s spouse. (B) INDEXING- In any calendar year after 2007, section 315(c)(1)(B) shall apply to the amount applicable under subparagraph (A) in the same manner as such section applies to the limitations established under subsections (a)(1)(A), (a)(1)(B), (a)(3), and (h) of such section, except that for purposes of applying such section to the amount applicable under subparagraph (A), the ‘base period’ shall be 2006. (4) PUBLIC AVAILABILITY- The Commission shall ensure that, to the greatest extent practicable— (A) information required to be disclosed under this subsection is publicly available through the Commission website in a manner that is searchable, sortable, and downloadable; and (B) the Commission’s public database containing information disclosed under this subsection is linked electronically to the websites maintained by the Secretary of the Senate and the Clerk of the House of Representatives containing information ﬁled pursuant to the Lobbying Disclosure Act of 1995. (5) REGULATIONS- Not later than 6 months after the date of enactment of the Honest Leadership and Open Government Act of 2007, the Commission shall promulgate regulations to implement this subsection. Under such regulations, the Commission— (A) may, notwithstanding paragraphs (1) and (2), provide for quarterly ﬁling of the schedule described in paragraph (1) by a committee which ﬁles reports under this section more frequently than on a quarterly basis; (B) shall provide guidance to committees with respect to whether a person is reasonably known by a committee to be a person described in paragraph (7), which shall include a requirement that committees consult the websites maintained by the Secretary of the Senate and the Clerk of the House of Representatives containing information ﬁled pursuant to the Lobbying Disclosure Act of 1995; (C) may not exempt the activity of a person described in paragraph (7) from disclosure under this subsection on the grounds that the person is authorized to engage in fundraising for the committee or any other similar grounds; and (D) shall provide for the broadest possible disclosure of activities described in this subsection by persons described in paragraph (7) that is consistent with this subsection. (6) COMMITTEES DESCRIBED- A committee described in this paragraph is an authorized committee of a candidate, a leadership PAC, or a political party committee. (7) PERSONS DESCRIBED- A person described in this paragraph is any person, who, at the time a contribution is forwarded to a committee as described in paragraph (8)(A)(i) or is received by a committee as described in paragraph (8)(A)(ii), is— (A) a current registrant under section 4(a) of the Lobbying Disclosure Act of 1995; (B) an individual who is listed on a current registration ﬁled under section 4(b)(6) of such Act or a current report under section 5(b)(2)(C) of such Act; or (C) a political committee established or controlled by such a registrant or individual.

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(8) DEFINITIONS- For purposes of this subsection, the following deﬁnitions apply: (A) BUNDLED CONTRIBUTION- The term ‘bundled contribution’ means, with respect to a committee described in paragraph (6) and a person described in paragraph (7), a contribution (subject to the applicable threshold) which is— (i) forwarded from the contributor or contributors to the committee by the person; or (ii) received by the committee from a contributor or contributors, but credited by the committee or candidate involved (or, in the case of a leadership PAC, by the individual referred to in subparagraph (B) involved) to the person through records, designations, or other means of recognizing that a certain amount of money has been raised by the person. (B) LEADERSHIP PAC- The term ‘leadership PAC’ means, with respect to a candidate for election to Federal ofﬁce or an individual holding Federal ofﬁce, a political committee that is directly or indirectly established, ﬁnanced, maintained or controlled by the candidate or the individual but which is not an authorized committee of the candidate or individual and which is not afﬁliated with an authorized committee of the candidate or individual, except that such term does not include a political committee of a political party.’ (b) Effective Date- The amendment made by subsection (a) shall apply with respect to reports ﬁled under section 304 of the Federal Election Campaign Act after the expiration of the 3-month period which begins on the date that the regulations required to be promulgated by the Federal Election Commission under section 304(i) (5) of such Act (as added by subsection (a)) become ﬁnal.

ANALYSIS When control of Congress shifted to the Democrats following the 2006 elections, party leaders quickly held hearings on what they deemed were questionable actions taken by the Bush administration and the 109th Congress. One signiﬁcant investigation focused on the K Street Project, a project initiated by former House Majority Leader Tom DeLay (R, TX) with the help of Grover Norquist, a conservative organizer and lobbyist, who were later joined by Senator Rich Santorum (R, PA). Named for K Street in Washington where many inﬂuential lobbyists had ofﬁces, the project, begun in 1995, strongly encouraged major lobbying ﬁrms to hire Republicans and donate generously to GOP candidates. In return, lobbyists were granted access to congressional leaders and White House ofﬁcials. Delay reportedly went so far as to threaten some lobbyists with denying them access to Republican leaders if they failed to follow his recommendations (see Texans for Public Justice, http://info.tpj. org/page_view.jsp?pageid=829&pubid=594). Another investigation focused on Jack Abramoff, a former Republican congressional aide turned lobbyist, who donated lavishly to the GOP and used his connections to high-ranking leaders to enrich himself at the expense of some of his poorer clients. (Abramoff eventually pleaded guilty to three felonies for defrauding Native American tribes and bribing public ofﬁcials.) Subsequently, several White House and congressional aides, lobbyists, and a representative were convicted for corruption. The Abramoff scandal infuriated the press and the public and aided Democrats in

Chapter 5 • 2000 to 2010

recapturing Congress, but the hearings provided ammunition to develop legislation to curb the worst lobbying practices. Embarrassed Republicans joined Democrats in supporting lobbying reform and amended the outdated and relatively toothless Lobbying and Disclosure Act of 1995 (2 USC 1601). Majority Leader Harry Reid (D, NV) introduced S. 1, the Honest Leadership and Open Government Act (HLOGA) in January 2007 with cosponsors from both parties. The Senate worked quickly, passing the bill 96–2 on January 18, despite facing many amendments designed to weaken it. The bill’s progress slowed in the House, but Democrats successfully overcame some Republican resistance to pass it 411–8 on July 31, and President George W. Bush signed it on September 14. Most of the act deals with regulating lobbying—such as limiting the amount and types of gifts to federal elected ofﬁcials and their staff, requiring lobbyists to disclose their clients and their activities on their behalf, and requiring mandatory disclosure of earmarks in appropriations bills—among other things. Penalties for those found violating the law were made signiﬁcantly harsher than those in the 1995 act. Section 204 amended the 1971 FECA (see document) to regulate bundling. Bundling occurs when a person, the bundler, raises money for a candidate by asking friends, family, acquaintances, or strangers who share a common interest, such as environmental protection, to donate to a candidate. The bundler then accepts a check from each person made payable to the candidate, and bundles them for delivery to the candidate. Bundling allows candidates to circumvent the individual contribution ceilings in the BCRA, because while individual contributions to one candidate are limited, an individual can give to many candidates. For example, a Democratic bundler in Iowa can solicit donations from people in Alaska and Hawaii and deliver them to a candidate in Maine without any of the donors knowing anything about the candidate except that the bundler assured them the candidate’s issue positions match that of the donors. Bundling actually began in the late 1970s when a group of women decided to ﬁnancially support female congressional candidates. Named EMILY’s list (Early Money Is Like Yeast), the group succeeded in raising relatively large sums of money, and its methods were modeled by other organizations and the parties. In the 2004 presidential election, President Bush’s committee established monetary goals of $100,000, $250,000, and higher for its bundlers, and each level was assigned a name, such as Rangers and Pioneers. Upon reaching a target, bundlers were rewarded with access to the president relative to the total amount raised. Bundlers also were active for the Democratic Party in 2004, and the practice continued through the 2008 elections, but public interest groups decried it, and bundling was targeted by congressional reformers for inclusion in the HLOGA. Under the terms of section 204, all federal campaign committees, congressional leadership PACs, and party committees (referred to as authorized committees) must report bundled contributions to the FEC if a committee accepts two or more bundled contributions that exceed the reporting threshold during a speciﬁc period. The original reporting threshold in the law was $15,000, but the threshold was indexed to inﬂation, and the FEC issued revised thresholds each year. The threshold was $16,000 for 2010. The act also requires that the authorized committees maintain records of bundled contributions as bundled so that they can be clearly identiﬁed. In addition, the committee must inform the FEC of any recognition given to the bundler in return for the act of bundling, such as rewarding a bundler for raising money.

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Authorized committees must also report the names, addresses, and companies for whom the bundlers work and the total amount contributed by the bundlers. The FEC is required to post on its Web site the names of all registered bundlers. It is important to understand that bundling is not illegal and that the HLOGA requires only that bundlers be identiﬁed and that the money raised via bundling and its sources be reported to the FEC. Bundling continued to be an important source of candidate campaign funds through the 2010 election cycle and beyond.

FURTHER READING Common Cause. http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=4773635.

• Document: Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) • Date: Decided January 21, 2010 • Signiﬁcance: In this landmark decision, the Supreme Court ruled that corporations and labor unions can spend unlimited money in independent expenditures in political campaigns. In ruling that the First Amendment protects corporate political speech, the Court overturned Austin v. Michigan Chamber of Commerce (1990) and a part of McConnell v. Federal Election Commission (2003). While the Court overturned long-standing federal law pertaining to corporate election activity, corporations and labor unions are still prohibited from contributing directly to federal candidates.

DOCUMENT Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) Justice Kennedy delivered the opinion of the Court Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech deﬁned as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm’n, (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce (1990). Austin had held that political speech may be banned based on the speaker’s corporate identity. In this case we are asked to reconsider Austin and, in effect, McConnell. It has been noted that “Austin was a signiﬁcant departure from ancient First Amendment principles,” Federal Election Comm’n v. Wisconsin Right to Life, Inc. (2007) (WRTL) 303

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(Scalia, J., concurring in part and concurring in judgment). We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. We turn to the case now before us.

I A Citizens United is a nonproﬁt corporation. It brought this action in the United States District Court for the District of Columbia. A three-judge court later convened to hear the cause. The resulting judgment gives rise to this appeal. . . . In January 2008, Citizens United released a ﬁlm entitled Hillary: The Movie. We refer to the ﬁlm as Hillary. It is a 90-minute documentary about then-Senator Hillary Clinton, who was a candidate in the Democratic Party’s 2008 Presidential primary elections. Hillary mentions Senator Clinton by name and depicts interviews with political commentators and other persons, most of them quite critical of Senator Clinton. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video-on-demand. Video-on-demand allows digital cable subscribers to select programming from various menus, including movies, television shows, sports, news, and music. The viewer can watch the program at any time and can elect to rewind or pause the program. In December 2007, a cable company offered, for a payment of $1.2 million, to make Hillary available on a video-on-demand channel called “Elections ’08.” Some videoon-demand services require viewers to pay a small fee to view a selected program, but here the proposal was to make Hillary available to viewers free of charge. To implement the proposal, Citizens United was prepared to pay for the video-ondemand; and to promote the ﬁlm, it produced two 10-second ads and one 30-second ad for Hillary. Each ad includes a short (and, in our view, pejorative) statement about Senator Clinton, followed by the name of the movie and the movie’s Website address. Citizens United desired to promote the video-on-demand offering by running advertisements on broadcast and cable television.

B Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited— and still does prohibit—corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualiﬁed federal elections. . . . An electioneering communication is deﬁned as “any broadcast, cable, or satellite communication” that “refers to a clearly identiﬁed candidate for Federal ofﬁce” and is made within 30 days of a primary or 60 days of a general election. The Federal Election Commission’s (FEC) regulations further deﬁne an electioneering communication as a communication that is “publicly distributed.” “In the case of a candidate for nomination for President . . . publicly distributed means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.” Corporations and unions are barred from using their general treasury funds

Chapter 5 • 2000 to 2010

for express advocacy or electioneering communications. They may establish, however, a “separate segregated fund” (known as a political action committee, or PAC) for these purposes. The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union.

C Citizens United wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary elections. It feared, however, that both the ﬁlm and the ads would be covered by §441b’s ban on corporate-funded independent expenditures, thus subjecting the corporation to civil and criminal penalties under §437g. In December 2007, Citizens United sought declaratory and injunctive relief against the FEC. It argued that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer and disclosure requirements, BCRA §§201 and 311, are unconstitutional as applied to Hillary and to the three ads for the movie. We noted probable jurisdiction. 555 U.S. ___ (2008). The case was reargued in this Court after the Court asked the parties to ﬁle supplemental briefs addressing whether we should overrule either or both Austin and the part of McConnell which addresses the facial validity of 2 U.S. C. §441b. . . .

III The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been attempted at different stages of the speech process—all laws found to be invalid: restrictions requiring a permit at the outset, Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton (2002); imposing a burden by impounding proceeds on receipts or royalties, Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd.(1991); seeking to exact a cost after the speech occurs, New York Times Co. v. Sullivan; and subjecting the speaker to criminal penalties, Brandenburg v. Ohio (1969) (per curiam). The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonproﬁt advocacy corporations— either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Riﬂe Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship. Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. . . . A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2),

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does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years, and ﬁle an organization statement and report changes to this information within 10 days . . . And that is just the beginning. PACs must ﬁle detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur. . . . PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign. Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “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.” Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. . . . If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. . . . Speech is an essential mechanism of democracy, for it is the means to hold ofﬁcials accountable to the people. . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “ ‘has its fullest and most urgent application’ to speech uttered during a campaign for political ofﬁce.” Eu v. San Francisco County Democratic Central Comm.(1989). For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL (opinion of Roberts, C. J.). While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter. . . . the quoted language from WRTL provides a sufﬁcient framework for protecting the relevant First Amendment interests in this case. We shall employ it here. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. . . . Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. . . . As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identiﬁes certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use

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speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that ﬂow from each. . . . We ﬁnd no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.

A 1 The Court has recognized that First Amendment protection extends to corporations. . . . This protection has been extended by explicit holdings to the context of political speech. . . . Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” Bellotti, at 784. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U.S., at 783)). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”. . . . At least since the latter part of the 19th century, the laws of some States and of the United States imposed a ban on corporate direct contributions to candidates. . . . Yet not until 1947 did Congress ﬁrst prohibit independent expenditures by corporations and labor unions in §304 of the Labor Management Relations Act 1947. In passing this Act Congress overrode the veto of President Truman, who warned that the expenditure ban was a “dangerous intrusion on free speech.” Message from the President of the United States, H. R. Doc. No. 334, 89th Cong., 1st Sess., 9 (1947). For almost three decades thereafter, the Court did not reach the question whether restrictions on corporate and union expenditures are constitutional. . . . The question was in the background of United States v. CIO (1948). . . . In United States v. Automobile Workers (1957), the Court again encountered the independent expenditure ban, which had been recodiﬁed at 18 U.S. C. §610 (1952 ed.). After holding only that a union television broadcast that endorsed candidates was covered by the statute, the Court “[r]efus[ed] to anticipate constitutional questions” and remanded for the trial to proceed. Three Justices dissented, arguing that the Court should have reached the constitutional question and that the ban on independent expenditures was unconstitutional: ”Under our Constitution it is We The People who are sovereign. The people have the ﬁnal say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important—vitally important—that all channels of communications be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.” Id., at 593 (opinion of Douglas, J., joined by Warren, C. J., and Black, J.). ....

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Later, in Pipeﬁtters v. United States (1972), the Court reversed a conviction for expenditure of union funds for political speech—again without reaching the constitutional question. The Court would not resolve that question for another four years.

2 In Buckley, the Court addressed various challenges to the Federal Election Campaign Act of 1971 (FECA) as amended in 1974. These amendments created. . . . an independent expenditure ban separate from §610 that applied to individuals as well as corporations and labor unions. Before addressing the constitutionality of §608(e)’s independent expenditure ban, Buckley ﬁrst upheld §608(b), FECA’s limits on direct contributions to candidates. The Buckley Court recognized a “sufﬁciently important” governmental interest in “the prevention of corruption and the appearance of corruption.” This followed from the Court’s concern that large contributions could be given “to secure a political quid pro quo.” The Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. The Court emphasized that “the independent expenditure ceiling . . . fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” because “[t]he absence of prearrangement and coordination . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Buckley invalidated §608(e)’s restrictions on independent expenditures, with only one Justice dissenting. . . . Buckley did not consider §610’s separate ban on corporate and union independent expenditures, the prohibition that had also been in the background in CIO, Automobile Workers, and Pipeﬁtters. Had §610 been challenged in the wake of Buckley, however, it could not have been squared with the reasoning and analysis of that precedent. . . . The expenditure ban invalidated in Buckley, §608(e), applied to corporations and unions, and some of the prevailing plaintiffs in Buckley were corporations. . . . Notwithstanding this precedent, Congress recodiﬁed §610’s corporate and union expenditure ban at 2 U.S. C. §441b four months after Buckley was decided. Section 441b is the independent expenditure restriction challenged here. Less than two years after Buckley, Bellotti (1978) reafﬁrmed the First Amendment principle that the Government cannot restrict political speech based on the speaker’s corporate identity. Bellotti could not have been clearer when it struck down a state-law prohibition on corporate independent expenditures related to referenda issues. . . .

3 Thus the law stood until Austin. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the ﬁrst time in [this Court’s] history.” 494 U.S., at 695 (Kennedy, J., dissenting). There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a speciﬁc candidate. Michigan law, however, prohibited corporate independent

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expenditures that supported or opposed any candidate for state ofﬁce. A violation of the law was punishable as a felony. The Court sustained the speech prohibition. To bypass Buckley and Bellotti, the Austin Court identiﬁed a new governmental interest in limiting political speech: an antidistortion interest. Austin found a compelling governmental interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” 494 U.S., at 660.

B The Court is thus confronted with conﬂicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Before Austin Congress had enacted legislation for this purpose, and the Government urged the same proposition before this Court. . . . In its defense of the corporate-speech restrictions in §441b, the Government notes the antidistortion rationale on which Austin and its progeny rest in part, yet it all but abandons reliance upon it. It argues instead that two other compelling interests support Austin’s holding that corporate expenditure restrictions are constitutional: an anticorruption interest and a shareholder-protection interest. We consider the three points in turn.

1 As for Austin’s antidistortion rationale, the Government does little to defend it. . . . And with good reason, for the rationale cannot support §441b. If the First Amendment has any force, it prohibits Congress from ﬁning or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation. . . . If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books. . . . Political speech is “indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Bellotti, 435 U.S., at 777. . . . This protection for speech is inconsistent with Austin’s antidistortion rationale. Austin sought to defend the antidistortion rationale as a means to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U.S., at 659. . . . The Court reafﬁrmed these conclusions when it invalidated the BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. See Davis v. Federal Election Comm’n, 554 U.S. ___, ___ (2008). . . . The Constitution, however, confers upon voters, not

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Money Is Speech, a cartoon by Bob Englehart. The U.S. Supreme Court has ruled that money is speech, leading some to believe that the long-standing federal ban on campaign contributions might fall victim to the court’s increased skepticism of campaign ﬁnance regulations. (© 2010 Bob Englehart, The Hartford Courant, and PoliticalCartoons.com. Courtesy of Cagle Cartoons, Inc.)

Congress, the power to choose the Members of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to inﬂuence the voters’ choices”). The rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity. . . . It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. . . . Austin’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. . . . Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporations often “have little or no correlation to the public’s

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support” for those views. Austin, 494 U.S., at 660. Thus, under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment. . . . There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the colonies. . . . The censorship we now confront is vast in its reach. The Government has “mufﬂe[d] the voices that best represent the most signiﬁcant segments of the economy.” McConnell, at 257–258 (opinion of Scalia, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U.S., at 144 (Rutledge, J., concurring in result). By suppressing the speech of manifold corporations, both for-proﬁt and nonproﬁt, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false. The purpose and effect of this law is to prevent corporations, including small and nonproﬁt corporations, from presenting both facts and opinions to the public. . . . Even if §441b’s expenditure ban were constitutional, wealthy corporations could still lobby elected ofﬁcials, although smaller corporations may not have the resources to do so. And wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. . . . Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech. When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment conﬁrms the freedom to think for ourselves.

2 What we have said also shows the invalidity of other arguments made by the Government. For the most part relinquishing the antidistortion rationale, the Government falls back on the argument that corporate political speech can be banned in order to prevent corruption or its appearance. . . . With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo,” and that “the scope of such pernicious practices can never be reliably ascertained.” The practices Buckley noted would be covered by bribery laws if a quid pro quo arrangement were proved. . . . The Court, in consequence, has noted that restrictions on direct contributions are preventative,

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because few if any contributions to candidates will involve quid pro quo arrangements. The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here. . . . A single footnote in Bellotti purported to leave open the possibility that corporate independent expenditures could be shown to cause corruption. For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. . . . The appearance of inﬂuence or access, furthermore, will not cause the electorate to lose faith in our democracy. By deﬁnition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate inﬂuence over elected ofﬁcials. This is inconsistent with any suggestion that the electorate will refuse “ ‘to take part in democratic governance’ ” because of additional political speech made by a corporation or any other speaker.

3 The Government contends further that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech. This asserted interest, like Austin’s antidistortion rationale, would allow the Government to ban the political speech even of media corporations. . . . The First Amendment does not allow that power. There is, furthermore, little evidence of abuse that cannot be corrected by shareholders “through the procedures of corporate democracy.” Bellotti, 435 U.S., at 794. . . .

4 We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from inﬂuencing our Nation’s political process. Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign inﬂuence over our political process.

C Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” We have also examined whether “experience has pointed up the precedent’s shortcomings.”

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These considerations counsel in favor of rejecting Austin, which itself contravened this Court’s earlier precedents in Buckley and Bellotti. . . . For the reasons above, it must be concluded that Austin was not well reasoned. The Government defends Austin, relying almost entirely on “the quid pro quo interest, the corruption interest or the shareholder interest,” and not Austin’s expressed antidistortion rationale. When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished. Austin abandoned First Amendment principles, furthermore, by relying on language in some of our precedents that traces back to the Automobile Workers Court’s ﬂawed historical account of campaign ﬁnance laws. . . . Austin is undermined by experience since its announcement. Political speech is so ingrained in our culture that speakers ﬁnd ways to circumvent campaign ﬁnance laws. . . . Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected ofﬁcials. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with signiﬁcant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech. . . . Due consideration leads to this conclusion: Austin should be and now is overruled. We return to the principle established in Buckley and Bellotti that the Government 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.

D Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures. As the Government appears to concede, overruling Austin “effectively invalidate[s] not only BCRA Section 203, but also 2 U.S. C. 441b’s prohibition on the use of corporate treasury funds for express advocacy.” Section 441b’s restrictions on corporate independent expenditures are therefore invalid and cannot be applied to Hillary. Given our conclusion we are further required to overrule the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on corporate independent expenditures. The McConnell Court relied on the antidistortion interest recognized

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in Austin to uphold a greater restriction on speech than the restriction upheld in Austin and we have found this interest unconvincing and insufﬁcient. This part of McConnell is now overruled. . . . It is so ordered.

ANALYSIS Federal law has long prohibited corporations and labor unions from using their general treasury money to purchase their own political advertisements to inﬂuence federal elections. Under the Federal Election Campaign Act amendments of 1974 (see document), corporations and labor unions were permitted to establish separate PACs for the purpose of engaging in political activity. Furthermore, to close a perceived loophole created by the Supreme Court’s decision in Buckley v. Valeo (1976) that allowed groups to spend general treasury funds on election communications made under the guise of legal issue ads, Congress enacted section 203 of the Bipartisan Campaign Reform Act of 2002 (see document), prohibiting corporations and labor unions from engaging in electioneering communication 30 days before a primary and 60 days before a general election. In Citizens United v. Federal Election Commission (2010), the Supreme Court declared section 203 unconstitutional, overruled Austin v. Michigan Chamber of Commerce (1990) (see document), and ruled that corporations and labor unions had the First Amendment right to unlimited independent expenditures in federal, state, and local political campaigns. The Citizens United decision dramatically shifted the Court’s campaign ﬁnance jurisprudence, with farreaching ramiﬁcations. In January 2008 a nonproﬁt 501(c)(4) corporation, Citizens United, released Hillary: The Movie, an unﬂattering documentary about then Democratic candidate Hillary Clinton that it intended to provide to cable services as on-demand programming. Because Citizens United paid for the documentary from its general treasury funds and expected to broadcast it during the 30-day window prohibited under the BCRA’s electioneering communication, it went to federal district court seeking to enjoin the FEC from enforcing BCRA’s section 203, the electioneering communication provision, against Citizens United. Citizens United also requested that 2 U.S.C. section 441b, the independent expenditure ban, be declared unconstitutional. Citizens United contended that the BCRA’s disclaimer, disclosure, and reporting requirements were unconstitutional as applied to Hillary: The Movie and advertisements for it. The district court rejected Citizens United’s legal arguments, siding with the FEC. Citizens United appealed to the U.S. Supreme Court. In Justice Kennedy’s controversially broad opinion, the ﬁve members in the majority—Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito— refused to decide the case on the narrow grounds that Citizens United’s documentary was not electioneering communication as deﬁned by federal law. Rather, the Court’s majority concluded that it was ﬁnally time to overrule Austin v. Michigan Chamber of Commerce (1990) because prior Courts had erroneously ruled that political speech could be banned if the speaker was a corporation. Justice Kennedy maintained that forbidding corporate electioneering communications was especially egregious because criminal penalties were attached to corporations found guilty of engaging in political speech.

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While the government argued that banning corporate and labor direct-campaign expenditures was constitutional because those organizations could still engage in political speech by speaking through corporate-established PACs, Justice Kennedy argued that the “option to form PACs does not alleviate the First Amendment problems with §441b,” because PAC formation is “expensive,” “burdensome,” and subject to signiﬁcant FEC reporting and record-keeping regulations that greatly reduce free speech. Therefore, 441b’s outright prohibition on independent corporate expenditures was a ban on political speech that must be subject to strict judicial scrutiny. In reviewing relevant First Amendment precedents, Justice Kennedy maintained that the Court always provided strong judicial protection for political speech and never ruled that it was permissible to limit one group’s speech, for example, corporations, to enhance the relative voice of another. Furthermore, Justice Kennedy argued, the Court had long ruled that corporations, like individuals, possessed First Amendment speech rights that cannot be infringed without a compelling governmental interest. Alongside the Court’s pronouncements and rulings that the First Amendment protected corporate speech stood a body of law that consistently upheld the 1947 federal government’s ban on corporate independent expenditures, recodiﬁed after Buckley v. Valeo (1976) (see document) in 2 U.S.C. section 441b. Fourteen years after Buckley, the Court examined the issue of whether a state could prohibit direct corporate independent expenditures in state elections. In Austin v. Michigan Chamber of Commerce (1990) (see document), the Court upheld a Michigan law that prohibited corporations from making direct contributions or expenditures in state elections, citing the “corrosive and distorting effects of immense aggregations of wealth” spawned by corporations. In Citizens United, Justice Kennedy argued that the Court needed to resolve the inherent tensions in the law. Citing the importance of political speech and the government’s unpersuasive arguments in favor of barring corporate expenditures, the Court’s majority determined that Austin v. Michigan Chamber of Commerce (1990) was overruled and that section 203 of the Bipartisan Campaign Reform Act, an extension of the corporate independent-expenditure ban to electioneering communications immediately before elections, was also unconstitutional. While the government cited its interests in preventing quid pro quos, other forms of corruption, and the protection of shareholders from speech they might not agree with as the justiﬁcations for the corporate speech restrictions, the Court’s majority found the government’s concerns to be either nonexistent or unpersuasive in light of the signiﬁcant importance of political speech in elections. Lastly, the Court upheld the law’s disclosure and reporting requirements against the challenge by Citizens United. Under the provisions of the BCRA applicable to corporations, televised advertisements must include a disclaimer indicating who paid for the advertisement, which must be displayed on the screen for at least four seconds, and must include either the organization’s mailing address or Web site. Also under BCRA, section 201 required that any person who spent more than $10,000 on electioneering communications within an election year must ﬁle a disclosure statement with the FEC. Citizens United argued that these requirements were overly burdensome and, therefore, chilled speech by organizations desiring to engage in political debate. The majority disagreed, noting that the Buckley Court and subsequent courts had upheld the requirements as providing essential information to voters.

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Writing in dissent was Justice Stevens, joined by Justices Ginsburg, Breyer, and Sotomayor. According to the dissenters, the majority had engaged in judicial activism by overturning almost a century of established law that corporations could not spend general treasury money on independent campaign expenditures and failed to recognize that the Court had already adequately protected corporate free speech rights by allowing them to form PACs for the express purpose of engaging in political speech. Central to Justice Stevens’s dissent was the recognition that campaign ﬁnance regulation of corporate entities was not a historical accident but rather the sustained, careful wisdom of Congress. Congress reasoned that corporations were not members of society, “their interests might conﬂict with the interests of eligible voters,” and because of their “ﬁnancial resources, legal structure, and instrumental orientation,” might have an unfair advantage in the marketplace of ideas. The Court’s decision to extend full First Amendment protection to all forms of corporate political speech and the precedent-overturning process it used to reach that result, Justice Stevens warned, will “do damage to this institution.” In addition to its criticism of the majority for choosing to issue the broadest opinion possible and for overturning multiple precedents for no legitimate reason, the dissenters criticized the majority for claiming that Austin and McConnell banned corporate speech, for forbidding First Amendment regulations based on the speaker’s identity, and for claiming that Austin and McConnell were “radical outliers in our First Amendment tradition and campaign ﬁnance jurisprudence.” As articulated by Justice Stevens, Austin and McConnell not only were within the mainstream of the Court’s campaign ﬁnance doctrine but sustained the ability of corporations to engage in speech through PAC activity. In addition, although the majority contended that the First Amendment precluded the government from regulating speech based on the speaker’s corporate identity was an idea originating from First Bank of Boston v. Bellotti (1978) (see document), in reality that decision was more nuanced than the majority had conceded. For example, if the majority’s blanket contention was correct, Justice Stevens argued, the government could not distinguish between a “multinational corporation controlled by foreigners” and “American citizens.” Furthermore, applying the majority’s logic, Justice Stevens maintained that the government “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.” Since Citizens United was decided in early 2010, politicians, scholars, and interested parties have been speculating on the inﬂuence the decision will have on future campaigns and elections. Many agree that corporations and unions will increase their spending during federal and state elections, potentially causing signiﬁcant shifts in policy as politicians attempt to avoid alienating extremely wealthy supporters. While corporations and labor unions largely remained on the sidelines for the 2010 election cycle, the 2012 presidential election will provide the biggest arena for the decision’s impact. Michael Kang (2010) argued that perhaps what is more important is that Justice Kennedy’s deﬁnition of corruption might lead to a “transformation of campaign ﬁnance law under the Roberts Court” (248). According to Justice Kennedy and now apparently a majority of the Court, the only corruption that Congress can tackle with campaign ﬁnance regulation are quid pro quos, that is, explicit exchanges of gifts for votes. “Taken to its logical extreme,” Kang argued, this “view of corruption may limit campaign ﬁnance restrictions to not much beyond the regulation of contributions to candidates and ofﬁceholders” (250). Therefore, while the

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Rehnquist Court was deferential to Congress in campaign ﬁnance matters, the Roberts Court has clearly spoken: any campaign ﬁnance restrictions will be met with heightened judicial skepticism.

FURTHER READING Kang, Michael. 2010. “After Citizens United.” Indiana Law Review 44: 243.

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• Document: Internal Revenue Tax Code, Title 26, Sections 501(c) and 527 • Date: 2010 • Signiﬁcance: Many political organizations qualify as fully or partially tax exempt under Internal Revenue Code section 527, and many are required to register with the FEC, for example, PACs. Other tax exempt organizations, namely, those under section 501(c), have become increasingly important actors in election campaigns. They can raise and spend money independently of parties and candidates to inﬂuence public opinion during elections by purchasing issue advocacy ads and need not register with the FEC. And with the Court’s decision in Citizens United v. Federal Election Commission (2010), some groups—527s, 501 (c) (4), (5), and (6)—may also spend directly from their treasurers to ﬁnance ads that directly advocate the election or defeat of candidates.

DOCUMENT Title 26 Subtitle A Chapter 1 Subchapter F Part I § 501 and Part Vi §527 PART I Section 501. (a) Exemption from taxation An organization described in subsection (c) or (d) or section 401 (a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503. (b) Tax on unrelated business income and certain other activities An organization exempt from taxation under subsection (a) shall be subject to tax to the extent provided in parts II, III, and VI of this subchapter, but (notwithstanding 318

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parts II, III, and VI of this subchapter) shall be considered an organization exempt from income taxes for the purpose of any law which refers to organizations exempt from income taxes. (c) List of exempt organizations The following organizations are referred to in subsection (a): (1) Any corporation organized under Act of Congress which is an instrumentality of the United States but only if such corporation— (A) is exempt from Federal income taxes— (i) under such Act as amended and supplemented before July 18, 1984, or (ii) under this title without regard to any provision of law which is not contained in this title and which is not contained in a revenue Act, or (B) is described in subsection (l). (2) Corporations organized for the exclusive purpose of holding title to property, collecting income therefrom, and turning over the entire amount thereof, less expenses, to an organization which itself is exempt under this section. Rules similar to the rules of subparagraph (G) of paragraph (25) shall apply for purposes of this paragraph. (3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientiﬁc, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the beneﬁt of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to inﬂuence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public ofﬁce. (4) (A) Civic leagues or organizations not organized for proﬁt but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes. (B) Subparagraph (A) shall not apply to an entity unless no part of the net earnings of such entity inures to the beneﬁt of any private shareholder or individual. (5) Labor, agricultural, or horticultural organizations. (6) Business leagues, chambers of commerce, real-estate boards, boards of trade, or professional football leagues (whether or not administering a pension fund for football players), not organized for proﬁt and no part of the net earnings of which inures to the beneﬁt of any private shareholder or individual. . . . (h) Expenditures by public charities to inﬂuence legislation (1) General rule In the case of an organization to which this subsection applies, exemption from taxation under subsection (a) shall be denied because a substantial part of the activities of such organization consists of carrying on propaganda, or otherwise attempting, to inﬂuence legislation, but only if such organization normally—

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(A) makes lobbying expenditures in excess of the lobbying ceiling amount for such organization for each taxable year, or (B) makes grass roots expenditures in excess of the grass roots ceiling amount for such organization for each taxable year. (2) Deﬁnitions For purposes of this subsection— (A) Lobbying expenditures The term “lobbying expenditures” means expenditures for the purpose of inﬂuencing legislation (as deﬁned in section 4911 (d)). (B) Lobbying ceiling amount The lobbying ceiling amount for any organization for any taxable year is 150 percent of the lobbying nontaxable amount for such organization for such taxable year, determined under section 4911. (C) Grass roots expenditures The term “grass roots expenditures” means expenditures for the purpose of inﬂuencing legislation (as deﬁned in section 4911 (d) without regard to paragraph (1)(B) thereof). (D) Grass roots ceiling amount The grass roots ceiling amount for any organization for any taxable year is 150 percent of the grass roots nontaxable amount for such organization for such taxable year, determined under section 4911. PART VI Section 527. Political organizations (a) General rule A political organization shall be subject to taxation under this subtitle only to the extent provided in this section. A political organization shall be considered an organization exempt from income taxes for the purpose of any law which refers to organizations exempt from income taxes. (b) Tax imposed (1) In general A tax is hereby imposed for each taxable year on the political organization taxable income of every political organization. Such tax shall be computed by multiplying the political organization taxable income by the highest rate of tax speciﬁed in section 11 (b). . . . (c) Political organization taxable income deﬁned (1) Taxable income deﬁned For purposes of this section, the political organization taxable income of any organization for any taxable year is an amount equal to the excess (if any) of— (A) the gross income for the taxable year (excluding any exempt function income), over (B) the deductions allowed by this chapter which are directly connected with the production of the gross income (excluding exempt function income), computed with the modiﬁcations provided in paragraph (2). . . . (3) Exempt function income For purposes of this subsection, the term “exempt function income” means any amount received as— (A) a contribution of money or other property, (B) membership dues, a membership fee or assessment from a member of the political organization,

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(C) proceeds from a political fundraising or entertainment event, or proceeds from the sale of political campaign materials, which are not received in the ordinary course of any trade or business, or (D) proceeds from the conducting of any bingo game (as deﬁned in section 513 (f) (2)), to the extent such amount is segregated for use only for the exempt function of the political organization. (d) Certain uses not treated as income to candidate For purposes of this title, if any political organization— (1) contributes any amount to or for the use of any political organization which is treated as exempt from tax under subsection (a) of this section, (2) contributes any amount to or for the use of any organization described in paragraph (1) or (2) of section 509 (a) which is exempt from tax under section 501 (a), or (3) deposits any amount in the general fund of the Treasury or in the general fund of any State or local government, such amount shall be treated as an amount not diverted for the personal use of the candidate or any other person. No deduction shall be allowed under this title for the contribution or deposit of any amount described in the preceding sentence. (e) Other deﬁnitions For purposes of this section— (1) Political organization The term “political organization” means a party, committee, association, fund, or other organization (whether or not incorporated) organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures, or both, for an exempt function. (2) Exempt function The term “exempt function” means the function of inﬂuencing or attempting to inﬂuence the selection, nomination, election, or appointment of any individual to any Federal, State, or local public ofﬁce or ofﬁce in a political organization, or the election of Presidential or Vice-Presidential electors, whether or not such individual or electors are selected, nominated, elected, or appointed. Such term includes the making of expenditures relating to an ofﬁce described in the preceding sentence which, if incurred by the individual, would be allowable as a deduction under section 162 (a). (3) Contributions The term “contributions” has the meaning given to such term by section 271 (b) (2). (4) Expenditures The term “expenditures” has the meaning given to such term by section 271 (b) (3). (5) Qualiﬁed State or local political organization (A) In general The term “qualiﬁed State or local political organization” means a political organization—

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(i) all the exempt functions of which are solely for the purposes of inﬂuencing or attempting to inﬂuence the selection, nomination, election, or appointment of any individual to any State or local public ofﬁce or ofﬁce in a State or local political organization, (ii) which is subject to State law that requires the organization to report (and it so reports)— (I) information regarding each separate expenditure from and contribution to such organization, and (II) information regarding the person who makes such contribution or receives such expenditure, which would otherwise be required to be reported under this section, and (iii) with respect to which the reports referred to in clause (ii) are (I) made public by the agency with which such reports are ﬁled, and (II) made publicly available for inspection by the organization in the manner described in section 6104 (d). (B) Certain State law differences disregarded An organization shall not be treated as failing to meet the requirements of subparagraph (A)(ii) solely by reason of 1 or more of the following: (i) The minimum amount of any expenditure or contribution required to be reported under State law is not more than $300 greater than the minimum amount required to be reported under subsection (j). (ii) The State law does not require the organization to identify 1 or more of the following: (I) The employer of any person who makes contributions to the organization. (II) The occupation of any person who makes contributions to the organization. (III) The employer of any person who receives expenditures from the organization. (IV) The occupation of any person who receives expenditures from the organization. (V) The purpose of any expenditure of the organization. (VI) The date any contribution was made to the organization. (VII) The date of any expenditure of the organization. (C) De minimis errors An organization shall not fail to be treated as a qualiﬁed State or local political organization solely because such organization makes de minimis errors in complying with the State reporting requirements and the public inspection requirements described in subparagraph (A) as long as the organization corrects such errors within a reasonable period after the organization becomes aware of such errors. (D) Participation of Federal candidate or ofﬁce holder The term “qualiﬁed State or local political organization” shall not include any organization otherwise described in subparagraph (A) if a candidate for nomination or election to Federal elective public ofﬁce or an individual who holds such ofﬁce— (i) controls or materially participates in the direction of the organization, (ii) solicits contributions to the organization (unless the Secretary determines that such solicitations resulted in de minimis contributions and were made without

Chapter 5 • 2000 to 2010

the prior knowledge and consent, whether explicit or implicit, of the organization or its ofﬁcers, directors, agents, or employees), or (iii) directs, in whole or in part, disbursements by the organization. (f) Exempt organization, which is not political organization, must include certain amounts in gross income (1) In general If an organization described in section 501 (c) which is exempt from tax under section 501 (a) expends any amount during the taxable year directly (or through another organization) for an exempt function (within the meaning of subsection (e) (2)), then, notwithstanding any other provision of law, there shall be included in the gross income of such organization for the taxable year, and shall be subject to tax under subsection (b) as if it constituted political organization taxable income, an amount equal to the lesser of— (A) the net investment income of such organization for the taxable year, or (B) the aggregate amount so expended during the taxable year for such an exempt function. (2) Net investment income For purposes of this subsection, the term “net investment income” means the excess of— (A) the gross amount of income from interest, dividends, rents, and royalties, plus the excess (if any) of gains from the sale or exchange of assets over the losses from the sale or exchange of assets, over (B) the deductions allowed by this chapter which are directly connected with the production of the income referred to in subparagraph (A). For purposes of the preceding sentence, there shall not be taken into account items taken into account for purposes of the tax imposed by section 511 (relating to tax on unrelated business income). (3) Certain separate segregated funds For purposes of this subsection and subsection (e)(1), a separate segregated fund (within the meaning of section 610 of title 18) or of any similar State statute, or within the meaning of any State statute which permits the segregation of dues moneys for exempt functions (within the meaning of subsection (e)(2)) which is maintained by an organization described in section 501 (c) which is exempt from tax under section 501 (a) shall be treated as a separate organization. (g) Treatment of newsletter funds (1) In general For purposes of this section, a fund established and maintained by an individual who holds, has been elected to, or is a candidate (within the meaning of paragraph (3)) for nomination or election to, any Federal, State, or local elective public ofﬁce, for use by such individual exclusively for the preparation and circulation of such individual’s newsletter shall, except as provided in paragraph (2), be treated as if such fund constituted a political organization. . . . (3) Candidate For purposes of paragraph (1), the term “candidate” means, with respect to any Federal, State, or local elective public ofﬁce, an individual who— (A) publicly announces that he is a candidate for nomination or election to such ofﬁce, and (B) meets the qualiﬁcations prescribed by law to hold such ofﬁce.

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(h) Special rule for principal campaign committees (1) In general In the case of a political organization, which is a principal campaign committee, paragraph (1) of subsection (b) shall be applied by substituting “the appropriate rates” for “the highest rate”. (2) Principal campaign committee deﬁned (A) In general For purposes of this subsection, the term “principal campaign committee” means the political committee designated by a candidate for Congress as his principal campaign committee for purposes of— (i) section 302(e) of the Federal Election Campaign Act of 1971 (2 U.S.C. 432 (e)), and (ii) this subsection. (B) Designation A candidate may have only 1 designation in effect under subparagraph (A)(ii) at any time and such designation— (i) shall be made at such time and in such manner as the Secretary may prescribed by regulations, and (ii) once made, may be revoked only with the consent of the Secretary. Nothing in this subsection shall be construed to require any designation where there is only one political committee with respect to a candidate. (i) Organizations must notify Secretary that they are section 527 organizations (1) In general Except as provided in paragraph (5), an organization shall not be treated as an organization described in this section— (A) unless it has given notice to the Secretary electronically that it is to be so treated, or (B) if the notice is given after the time required under paragraph (2), the organization shall not be so treated for any period before such notice is given or, in the case of any material change in the information required under paragraph (3), for the period beginning on the date on which the material change occurs and ending on the date on which such notice is given. (2) Time to give notice The notice required under paragraph (1) shall be transmitted not later than 24 hours after the date on which the organization is established or, in the case of any material change in the information required under paragraph (3), not later than 30 days after such material change. (3) Contents of notice The notice required under paragraph (1) shall include information regarding— (A) the name and address of the organization (including any business address, if different) and its electronic mailing address, (B) the purpose of the organization, (C) the names and addresses of its ofﬁcers, highly compensated employees, contact person, custodian of records, and members of its Board of Directors, (D) the name and address of, and relationship to, any related entities (within the meaning of section 168 (h)(4)), (E) whether the organization intends to claim an exemption from the requirements of subsection (j) or section 6033, and

Chapter 5 • 2000 to 2010

(F) such other information as the Secretary may require to carry out the internal revenue laws. (j) Required disclosure of expenditures and contributions . . . (2) Required disclosure A political organization which accepts a contribution, or makes an expenditure, for an exempt function during any calendar year shall ﬁle with the Secretary either— (A) (i) in the case of a calendar year in which a regularly scheduled election is held— (I) quarterly reports, beginning with the ﬁrst quarter of the calendar year in which a contribution is accepted or expenditure is made, which shall be ﬁled not later than the ﬁfteenth day after the last day of each calendar quarter, except that the report for the quarter ending on December 31 of such calendar year shall be ﬁled not later than January 31 of the following calendar year, (II) a pre-election report, which shall be ﬁled not later than the twelfth day before (or posted by registered or certiﬁed mail not later than the ﬁfteenth day before) any election with respect to which the organization makes a contribution or expenditure, and which shall be complete as of the twentieth day before the election, and (III) a post-general election report, which shall be ﬁled not later than the thirtieth day after the general election and which shall be complete as of the twentieth day after such general election, and (ii) in the case of any other calendar year, a report covering the period beginning January 1 and ending June 30, which shall be ﬁled no later than July 31 and a report covering the period beginning July 1 and ending December 31, which shall be ﬁled no later than January 31 of the following calendar year, or (B) monthly reports for the calendar year, . . . (3) Contents of report A report required under paragraph (2) shall contain the following information: (A) The amount, date, and purpose of each expenditure made to a person if the aggregate amount of expenditures to such person during the calendar year equals or exceeds $500 and the name and address of the person (in the case of an individual, including the occupation and name of employer of such individual). (B) The name and address (in the case of an individual, including the occupation and name of employer of such individual) of all contributors which contributed an aggregate amount of $200 or more to the organization during the calendar year and the amount and date of the contribution. Any expenditure or contribution disclosed in a previous reporting period is not required to be included in the current reporting period. . . . (6) Election For purposes of this subsection, the term “election” means— (A) a general, special, primary, or runoff election for a Federal ofﬁce, (B) a convention or caucus of a political party which has authority to nominate a candidate for Federal ofﬁce, (C) a primary election held for the selection of delegates to a national nominating convention of a political party, or (D) a primary election held for the expression of a preference for the nomination of individuals for election to the ofﬁce of President. (7) Electronic ﬁling

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Any report required under paragraph (2) with respect to any calendar year shall be ﬁled in electronic form if the organization has, or has reason to expect to have, contributions exceeding $50,000 or expenditures exceeding $50,000 in such calendar year. (k) Public availability of notices and reports (1) In general The Secretary shall make any notice described in subsection (i)(1) or report described in subsection (j)(7) available for public inspection on the Internet not later than 48 hours after such notice or report has been ﬁled (in addition to such public availability as may be made under section 6104 (d)(7)). . . .

ANALYSIS The U.S. tax code has long exempted nonproﬁt and not-for-proﬁt organizations from paying taxes even as they participated on the margins of electoral campaigns without generating much controversy. For example, clergy in some churches endorsed candidates from their pulpits, while some nonproﬁt groups promoted their issues during campaigns through advertisements that appeared to favor one candidate’s position over another’s (later known as issue advocacy ads). Such behavior was noncontroversial through the 1960s, and hardly concerned candidates, parties, the press, or the public, as many religious, social welfare, and charitable groups and business, union, and trade associations had been lobbying federal, state, and local governments legally under IRC section 501(c) provisions. Before 1975 the IRS considered political parties, candidates’ campaign committees, and congressional campaign committees as traditional political organizations and extended them tax exempt status, because the IRS viewed contributions to parties and candidates as gifts, whether in the form of money, securities, or other valuable commodities. But as these political entities’ fund-raising prowess improved, Congress amended the Internal Revenue Code to add section 527, under which political organizations could receive tax exempt status. Even if a political organization qualiﬁed under section 527, it still paid taxes on its gross income. But its gross income excluded money it placed in a “separate segregated fund” that it used to pay for “exempt functions” (deﬁned in the following paragraph), resulting in the 527 group paying little, if any, federal income tax if most or all of its income came from political fund-raising and was expended on exempt functions. A political organization is deﬁned as “a party, committee, association, fund, or other organization (whether or not incorporated) organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures, or both, for an exempt function.” An exempt function is the “inﬂuencing or attempting to inﬂuence the selection, nomination, election, or appointment of any individual to any Federal, State, or local public ofﬁce or ofﬁce in a political organization, or the election of Presidential or Vice-Presidential electors, whether or not such individual or electors are selected, nominated, elected, or appointed.” Clearly, the primary purpose of political parties, candidates’ committees, and congressional campaign committees was to conduct exempt function activities. But with the passage of the 1974 FECA amendments, federal law recognized PACs and regulated how much individuals could contribute to them and how much a PAC could

Chapter 5 • 2000 to 2010

donate to a single party or candidate. A PAC, however, can raise and spend unlimited sums to elect or defeat as many candidates as it wished. A 1975 FEC advisory opinion on a question from Sun Oil Company ruled the company could establish a “separate segregated fund”—SunPAC—for the purpose of engaging in exempt function activities. Moreover, SunPAC could solicit contributions from the company’s employees. Thus, corporations, and by extension unions, that wished to engage legally in exempt functions could do so by establishing “separate segregated funds” for those purposes and ultimately ﬁle for tax exempt status under section 527, though approval was not guaranteed. PACs were required to report their contributions and expenditures, as well as their contributors’ names and amounts, to the FEC if they contributed to federal candidates or expended funds in federal elections. State PACs that do not participate in funding federal candidates are not required to report to the FEC but instead are governed by state campaign ﬁnance laws and report to the designated state agency. When the Supreme Court handed down its decision in Buckley v. Valeo (1976) (see document), the opportunities for PAC involvement in elections exploded. The Court ruled that the 1974 FECA amendments could not impose spending limits on individuals or groups that acted independently of candidates, because such regulations restricted their freedom of speech. The Buckley decision allowed PACs and other groups to spend freely during campaigns to promote their agendas by airing ads that promoted candidates’ elections or targeted candidates for defeat. PAC numbers swelled in subsequent years (see Chart 4.1 and Table 4.2), and the money that PACs raised and contributed to candidates dramatically increased. Besides corporations and unions, interest groups and other organizations also formed PACs to avail themselves of section 527 tax exempt status. The FEC recognized six types of multicandidate PACs. A multicandidate PAC is deﬁned as “a political committee . . . registered . . . for a period of not less than 6 months, which has received contributions from more than 50 persons, and, except for any State political party organization, has made contributions to 5 or more candidates for Federal ofﬁce” (4 U.S.C. 441[a]). The types of PACs are labor, corporate, trade-membershiphealth, nonconnected, cooperatives, and corporations without stocks. The latter two composed just a small percentage of all PACs, however, and so are essentially irrelevant. The ﬁrst two were discussed above. Trade, membership, and health PACs have parent organizations, for example, the National Association of Manufacturers (NAM) or the American Medical Association (AMA), that established PACs to participate legally in the political process and enjoy tax exempt status. Nonconnected PACs are formed by people with a common interest, sometimes ideologically driven, who wish to raise and spend money for exempt purposes, for example, MoveOn.org During the 1980 presidential election, conservative PACs ran ads independently of the Republican Party and the Reagan campaign committee that were critical of President Carter’s policies. In like fashion, liberal and conservative PACs placed ads on TV and radio during the 1984 and 1988 presidential campaigns. Two commercials in 1988, sponsored by the National Security Political Action Committee (NSPAC), targeted Michael Dukakis (D, MA)—the Willie Horton and Boston Harbor ads— and generated such controversy that Democrats asked the FEC to take action against the NSPAC. The FEC, however, using the Court’s reasoning in Buckley, determined that the NSPAC was within its rights to sponsor the commercials.

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While all 527 groups must ﬁle some type of return with the IRS, not all 527s must report to the FEC. When the IRS issued guidelines in 1996 on what acts constituted exempt functions for the non-FEC-reporting 527s, few people were aware of their existence, and they were referred to as stealth PACs. To force the stealth PACs to reveal themselves, however, Congress amended section 527 in 2000 and 2002 to require that they report to the IRS, the FEC, or to a state regulatory agency. In 2005 Senator McCain (R, AZ) introduced the 527 Reform Act, hoping to clarify the treatment of 527 organizations. Concerned that the spirit of the BCRA’s ban on soft money had been circumvented by wealthy contributors’ gifts to 527s, McCain’s bill required that any 527 group that raised more than $25,000 a year and expended money in congressional and presidential elections was required to register with the FEC as a PAC and, therefore, subject to the BCRA’s contribution and expenditure limits as well as disclosure requirements. The legislation permitted these groups to receive contributions of up to $25,000 from individuals per year for activity affecting federal and nonfederal candidates, which included get-out-the-vote efforts, if 50 percent of those expenses were paid using hard money. The bill never came to the Senate ﬂoor for a vote. Political organizations regulated by the FECA, as amended by the BCRA, such as political parties and candidates’ campaign committees, are covered under section 527. All 527 groups must abide by the BCRA disclosure rules if engaged in electioneering communications, which are broadcast, cable, or satellite commercials that clearly reference a candidate for a federal ofﬁce aired within 30 days of a primary or 60 days of a general election. If the election is for a seat in the House or Senate, the ads must be directed to the relevant constituencies. Individuals contributing to electioneering communications must have their names, addresses, and contribution amounts reported to the FEC and posted on the FEC Web site. All 527 groups that do not fall under the FECA’s purview, however, may be able to raise and spend money beyond the FECA’s provisions if their activities are not connected to federal elections, that is, activities intended to inﬂuence state and local elections and appointments to federal ofﬁces, or if their ads are not electioneering communications. The FEC issued a rule on August 19, 2004, that required organizations to report their activities if the organizations raised money speciﬁcally to support or defeat candidates targeted by the organizations. All 527 organizations that received donations or spent money for “exempt functions” must ﬁle disclosure reports with the IRS, and 527s with annual contributions or expenditures exceeding $50,000 must also ﬁle. Groups must ﬁle quarterly during an election year and semiannually or montly in nonelection years. Reports must include the names, addresses, occupations, employers, and amounts and dates for all contributors giving more than $200 in a year, and the amounts, dates, and purposes for all payments made to people who received $500 or more in a year and the recipients’ names, addresses, occupations, and employers. Under IR Code section 501(c), 28 categories are deﬁned as eligible for tax exempt status. Those categories most frequently associated with campaign activities, however, are (c)(3) and (c)(4), though (c)(5) and (c)(6) groups have also been involved in elections. Organizations operating under 501(c) could become subject to taxes if they spend money for an exempt function, deﬁned in section 527(e)(2) as “the function of inﬂuencing or attempting to inﬂuence the selection, nomination, election,

Chapter 5 • 2000 to 2010

or appointment of any individual to any Federal, State, or local public ofﬁce or ofﬁce in a political organizaDID YOU KNOW? tion, or the election of Presidential or Vice-Presidential electors, whether or not such individual or electors are selected, nominated, elected, or appointed.” However, The Democracy Is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act, 111th 501(c) groups may establish a separate, segregated fund Congress H.R. 5175 and S. 3628 under IR Code 527(f)(3) from which expenditures can be made for exempt functions, or they can engage in In the aftermath of Citizens United v. Federal Election exempt functions if their expenditures for political acCommission (2010) (see document), campaign ﬁnance tivities meet several criteria involving total expendireformers, especially Democrats, were stunned and detures and net investment income. Ultimately, there are nounced the Court’s reasoning as ﬂawed and partisan. ways for 501(c) groups to participate legally in camPresident Barack Obama even pointedly referenced the Court’s decision in his 2010 State of the Union address paigns and maintain their tax exempt status. as ﬂawed. Congressional Democrats vowed to craft a bill The (c)(3) category includes not-for-proﬁt groups to lessen the decision’s effects using the small remainwith religious, charitable, and educational purposes, ing opening in the Court’s reasoning. Since the Court’s among others. To qualify for tax exemption, these ormajority upheld the BCRA’s (see document) disclosure ganizations must have “no part of [their] net earnrequirements as well as its ban on direct contributions ings . . . beneﬁt . . . any private shareholder or individual” by corporations and unions to candidates and parties, House Democrats drafted H.R. 5175 to expand and engaged in any signiﬁcant lobbying “to inﬂuence legisstrengthen compulsory reporting of campaign expenlation (except as otherwise provided in subsection (h)” ditures and donor names and amounts. The DISCLOSE and must “not participate in, or intervene in (includAct amended the FECA by prohibiting independent ing the publishing or distributing of statements), any campaign expenditures and contributions to political political campaign on behalf of (or in opposition to) organizations for electioneering communications (see any candidate for public ofﬁce.” Type (c)(3) groups BCRA document for deﬁnitions) by government contractors with work valued at $10 million or more, Temmay, however, lobby for bills that beneﬁt or harm their porary Assistance Relief Act (TARP) recipients, and any members’ interests, but they are limited in how much individuals involved in gas or oil exploration under the time and money they may dedicate to lobbying. And while (c)(3) organizations may not directly campaign for or against candidates using any type of advertising, they may purchase during campaigns issue advocacy commercials in which groups criticize or praise candidates for issue positions vital to their groups’ causes; in such commercials, the group cannot exhort the viewer directly to vote for or against a candidate because of the candidate’s issue position. In addition, (c)(3) groups may conduct nonpartisan voter registration drives, organize public forums, and publish voter education guides. Political expenditures by a (c)(3) group cannot dominate its budget, for the group could risk losing its tax exempt status. There are no limits on how much money individuals may donate to (c)(3) organizations, and the amount is fully tax deductible for the donor; however, these groups must disclose their donors’ identities to the IRS. While 501(c)(3) organizations have some advantages for donors, namely, that their gifts are fully tax deductible, their strategic importance in campaigns comes from their ability to spend heavily on issue advocacy ads that can sway public opinion for or against candidates. Since 2000 groups in this category that previously hadn’t been seriously involved in elections have opted to exercise their options under the tax code by purchasing issue advocacy ads. More numerous in the political arena are the 501(c)(4) organizations, which are civic groups with a focused purpose, for example, volunteer ﬁre companies, as well as civic organizations with more general missions to promote social welfare, broadly deﬁned. Like (c)(3) organizations, they are not for proﬁt and earnings may

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not beneﬁt private shareholders or individuals. But (c) (4) organizations can engage in unlimited political acDID YOU KNOW? tivity, such as lobbying, voter registration campaigns, and purchasing ads advocating for or against the elecU.S. outer continental shelf. It extended the ban on tion of candidates, so long as its work is consistent campaign contributions by foreign nationals and corpowith the group’s purpose and is not the group’s princirations with 20 percent or more foreign ownership. It pal undertaking. Extensive political activity, however, required corporations to maintain separate accounts for removes a 501(c)(4) organization from eligibility for their political broadcast spending and report all political most federal grants. Individual contributions to 501(c) spending to the FEC. Corporate chief executive ofﬁcers (4)s are not deductible as charitable contributions, but who expended funds from their treasuries for electioneering communications or contributed to PACs also had dues or membership fees may be deductible as business to ﬁle with the FEC to conﬁrm their legal status as well expenses. 501(c)(4) organizations are not required to as appear in the corporations’ electioneering commudisclose their donors’ names or amounts publicly. Donications to state their corporations’ endorsement for nations to 501(c)(4)s that are public entities, such as the ads’ content. The act extended from 60 to 120 days volunteer ﬁre departments, are tax deductible, howthe period before general elections when an ad could ever. Because their numbers and campaign activities be considered an electioneering communication. Finally, it required all individuals, political organizahave increased markedly since 2000, 501(c)(4)s have tions, 527, and 501(c) groups that independently spend become issues unto themselves during elections as money to inﬂuence elections to register with the FEC. much because of their secrecy as the size of their monCorporations were also mandated to disclose their poetary involvement. In 2008, for example, MoveOn. litical expenditures to their shareholders and the Securiorg, a liberal group, raised and spent nearly $40 million ties and Exchange Commission (SEC). The House passed supporting Democratic candidates, drawing the ire of H.R. 1575 on June 24 by a 219–206 vote with nearly all Republicans opposed. A Senate ﬁlibuster, led by minorRepublicans, while during the 2010 elections, Amerity leader Mitch McConnell (R, KY), blocked S. 3628, icn Crossroads, a 527 group, and Crossroads GPS, conand two attempts to invoke cloture, which requires 60 servative organizations, raised and spent approximately votes, to end the ﬁlibuster failed: ﬁrst on July 27, 57–41, $71 million, outraging Democrats. MoveOn.org began and second on September 27, 59–39. The act’s future as a 527 organization (see below), but changed its stain the 112th Congress appeared bleak, as Republicans tus to 501(c)(4) to protect its donors’ identities, a praccontrolled the House and had sufﬁcient votes in the Senate to sustain any ﬁlibuster. tice that has become more popular with other groups. Though unknown 501(c)(4)s have suddenly appeared and spent heavily on attack ads during elections, and journalists have struggled to trace the groups’ origins, 501(c)(4) organizations will remain permanent ﬁxtures in the contemporary political landscape. Less prevalent and prominent, but still important, are 501(c)(5) groups, or labor unions, and 501(c)(6) groups, or corporate and business organizations. These two categories may participate in election campaigns in which they advocate for or against candidates by buying ads, so long as the activities are related to the groups’ exempt purposes and are not their primary activities. Business and labor organizations, however, may engage in lobbying as their primary activity, but only if it is directly relevant to their exempt purposes. Only if communicating with their members, these organizations may also spend their resources for supporting and opposing particular candidates, registering votes, assisting with voting, and soliciting contributions for campaign activities to be deposited into segregated funds for political activities. Fund-raising and spending by 527s and 501(c)(4) groups became an issue in the 2004 presidential campaign, when the content of some of their issue ads made controversial claims. Most referenced was the Swiftboat Veterans for Truth ad that questioned presidential candidate John Kerry’s heroism in the Vietnam War.

Chapter 5 • 2000 to 2010

The prominent role played by 501(c)s and 527s during and even between elections will continue well into the 21st century because of their ability to raise and spend money as independent actors and the IRC requirements for 501(c)(4) groups. For example, Crossroads GPS, a 501(c)(4) spin-off of American Crossroads, a conservative 527 group active during the 2010 elections, announced that it was running radio ads in December 2010 in nine Democratic representatives’ districts to inﬂuence their votes on a bill. The group’s spokesperson said the ads were part of a “legislative advocacy campaign aimed to educate concerned citizens about a crucial issue” before Congress (Overby 2010). According to the Campaign Finance Institute, since 2006 total 527 and 501(c) groups’ spending has increased every election cycle: $223 million in 2006, $397 million in 2008, and $564 million in 2010. Donors desiring anonymity can give generously to 501(c) (4)s without fear of disclosure, but voters are deprived of information necessary to evaluate the credibility of political commercials sponsored by the groups. Any attempt to limit independent expenditures by 527s and 501(c)s must overcome the Buckley decision, and legislation to require full donor disclosure for all organizations remained blocked in Congress, leaving reformers and public interest groups searching for new ways to restore the public’s faith in democratic elections.

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DID YOU KNOW? The Origin and Signiﬁcance of Super PACs Following the Supreme Court’s decision in Citizens United v. Federal Election Commission in January 2010 (see document), which freed corporations and unions to spend unlimited sums from their general treasuries for express advocacy ads, the District of Columbia’s Appellate Court ruled in March in SpeechNow.org v. Federal Election Commission (2010) that all of the BCRA’s (see document) limits on contributions to PACs were unconstitutional but only if the PACs accepting the contributions did not directly donate to or coordinate their advertising campaigns with candidates. Subsequently, two 527 organizations, the Club for Growth (conservative) and Commonsense Ten (liberal), simultaneously sought advisory opinions (AOs) from the FEC on their intention to establish new, independent, expenditure-only PACs through which they could raise unlimited funds to purchase express advocacy ads—commercials speciﬁcally supporting or opposing a candidate’s election—in light of the SpeechNow.org decision. The FEC issued both AOs on July 22 and approved the new PACs, which were quickly dubbed super PACs by the press. The AOs included several important caveats, namely, that the new super PACs must disclose their contributors’ names and amounts to the FEC, which would later release them, and that the super PACs’ spending must not be directly coordinated with any party’s or candidate’s campaign. Now able to raise unlimited funds from any source, including corporate and union treasuries and extremely wealthy individuals, and spend every cent to elect or defeat candidates, many groups rushed to form super PACs or convert traditional PACs into super ones. Between July 22 and the November election, over 40 super PACs had registered with the FEC and had raised and spent over $50 million. Their impact on the 2010 congressional elections was signiﬁcant, as Republicans won control of the House and added six Senate seats. What role super PACs play in future elections remains uncertain, however, as political organizations and their potential donors weigh super PACs’ advantages (unlimited fund-raising and spending) against their disadvantages (donor disclosure and ban on coordination with parties and candidates).

Cantor, Joseph E., and Erika K. Lunder. 2006. “527 Political Organizations: Legislation in the 109th Congress.” Washington, DC: Congressional Research Service Report for Congress. Cantor, Joseph E., Erika K. Lunder, and L. Paige Whitaker. 2007. “Section 527 Political Organizations: Background and Issues for Federal Election and Tax Laws.” Washington, DC: Congressional Research Service Report for Congress. Lunder, Erika K. 2005. “Political Organizations under Section 527 of the Internal Revenue Code.” Washington, DC: Congressional Research Service Report for Congress. Lunder, Erika K., and L. Paige Whitaker. 2009. “501(c)(4) Organizations and Campaign Activity: Analysis Under Tax and Campaign Finance Laws.” Washington, DC: Congressional Research Service Report for Congress. Overby, Peter. 2010. “Groups behind Election Ads Weighs In on Tax Deal.” National Public Radio, All Things Considered. December 14.

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AFTERWORD The respected historian Arthur M. Schlesinger Jr. (1986) argued in The Cycles of American History that the United States has experienced similar movements throughout its history, such as religious revivals, populism, or isolationism. In light of our review of campaign rules, we can agree with Professor Schlesinger. The four themes identiﬁed in the introduction appeared frequently over 200 years, in some cases with near regularity. Though the size, scale, and professionalism practiced in campaigns has indeed changed markedly since the early 19th century, as have the amounts of money and the methods of mass communication, there have been recurring campaign problems in the 21st century that prompted reform measures that were eerily analogous to those attempted in the 19th and 20th centuries. The ﬁrst theme identiﬁed is that the rules of the electoral game matter because they create winners and losers. Rules, such as ballot access laws or legislative redistricting, establish the foundation on which campaign battles occur and often help determine the outcome. Therefore, it is not surprising that many outside groups (e.g., “the losers”) have challenged various rules as being unfair or unconstitutional. With respect to redistricting and ballot access regulations, the U.S. Supreme Court has been especially supportive and understanding of the rules favored by the two major parties. The Court has been leery of involving itself in resolving disputes arising from minor parties and their candidates claiming their rights had been diminished through the redistricting process or restrictive ballot access laws. The respect that the Supreme Court has long given the rules favoring the major parties will likely continue in the near future. Likewise, politically motivated redistricting, or gerrymandering, persists despite efforts by those parties losing seats to claim foul. The Supreme Court in several decisions since Davis v. Bandemer, 478 U.S. 109 (1986) found that gerrymandering was a justiciable matter and one that, if concrete evidence of its existence was presented, would be found unconstitutional. But no Supreme Court thus far has heard a sufﬁciently egregious example to reject a political gerrymander. We anticipate this will continue to be the case. While the Roberts Court has largely continued the Court’s upholding of the political rules of the game, it has not given the same level of respect to the most recent 333

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campaign ﬁnance regulations created by Congress. Often referring to many of the recent campaign ﬁnance laws as “incumbency-protection plans,” the Roberts Court’s interpretation of the First Amendment to include “money as speech” has led it to question the restrictions imposed by Congress. In the near future, the Roberts Court is likely to continue to question the need for campaign ﬁnance regulations that place restrictions on a person’s or group’s freedom to speak. If it does so, it will force congressional reformers to pass disclosure requirements, or modern versions of the 1910 and 1911 Publicity Acts. History has also demonstrated that even the most well-intentioned reforms have unintended consequences. This theme was especially apparent with campaign ﬁnance regulations, as human behavior simply adapted to new rules: money found new avenues to inﬂuence candidates, while legislators scrambled to identify clever ways to stem the allure of contributions. As the Supreme Court has most recently shifted its emphasis to campaign ﬁnance deregulation in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), it put legislators on notice that campaign ﬁnance rules will be judged with strict First Amendment scrutiny. It remains to be seen what the consequences of the new campaign ﬁnance regulatory regime will be. In his Citizens United dissent, Justice Stevens predicted that the decision “threatens to undermine the integrity of elected institutions across the Nation” and will “do damage” to the Supreme Court. We do not yet know what effect the Court’s ruling allowing corporations to spend unlimited money on independent expenditures will have on public cynicism, participation rates, and the public’s perception that money corrupts. These are important questions for the health of our democracy. The Court’s Citizens United decision shook the foundation on which campaign ﬁnance rules stood, practically returning campaign ﬁnancing to conditions similar to those of the late 19th and early 20th centuries. Since the Tillman (1907) and TaftHartley (1948) acts, corporations and labor unions, respectively, were prohibited from making independent expenditures in federal campaigns. Now that the Court has overturned that long-standing rule, many scholars wonder whether the Court, or perhaps Congress, will be inclined to change the law’s prohibition on corporate and union campaign contributions. Future campaign ﬁnance issues potentially await the Court in light of the Court’s most recent pronouncement. If the First Amendment protects corporate speech, as First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) and Citizens United (2010) say it does, and reasonable limits can be placed on contributions to minimize corruption, will the Tillman Act’s prohibition on corporate contributions from general treasury funds be ﬁnally lifted? Finally, since Buckley v. Valeo, 424 U.S. 1 (1976) was decided, the justices have debated whether the decision’s contribution-expenditure distinction should be retained, modiﬁed, or simply rejected. While some justices are content with the law’s current treatment of the distinction, allowing for contribution restrictions but prohibiting expenditure limits, other justices, like Thomas, Scalia, and Kennedy, have questioned how well contribution limits square with the First Amendment’s protection of free speech. It is clear that a majority of the Court since Buckley has eschewed the political equality theory of campaign ﬁnance, which allowed for expenditure limits to be imposed on certain actors (the haves) in order to enhance the relative voice of others (the have-nots). Since a majority of the justices believe that money is speech, the prospects for signiﬁcant campaign ﬁnance restrictions in the near future are extremely bleak.

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As long as there are candidates running for public ofﬁce in America, we are conﬁdent that the debate over how campaigns should be conducted will continue, for as long as there is a losing party—the loyal opposition—there will be calls for changing the rules. We expect that, should there be a second edition of this book, we will ﬁnd new versions of old rules to present and analyze.

FURTHER READING Schlesinger, Arthur M. 1986. The Cycles of American History. Boston: Houghton Mifﬂin.

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Hyman, Leonard S. America’s Electric Utilities: Past, Present and Future. Arlington, VA: Public Utility Reports, 1983. Jensen, Richard. The Winning of the Midwest: Social and Political Conﬂict, 1888–1896. Chicago: University of Chicago Press, 1971. Kehl, James A. Boss Rule in the Gilded Age. Pittsburgh: University of Pittsburgh Press, 1981. Keller, Morton. Affairs of State: Public Administration in Late Nineteenth Century America. Cambridge, MA: Harvard University Press, 1977. Klieman, Howard. http://www.museum.tv/eotvsection.php?entrycode=equaltimeru. Kolodny, Robin. Pursuing Majorities: Congressional Campaign Committees in American Politics. Norman: University of Oklahoma Press, 1998. Kurland, Philip B. Watergate and the Constitution. Chicago: University of Chicago Press, 1978. Kutler, Stanley I. The Wars of Watergate. New York: Norton, 1990. Kutler, Stanley I. Abuse of Power. New York: Simon & Schuster, 1997. LaRaja, Raymond J. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press, 2008. LaRue, L. H. Political Discourse: A Case Study of the Watergate Affair. Atlanta: University of Georgia Press, 1988. Lee, Frederic P. “Federal Radio Legislation.” Annals of the American Academy of Political and Social Science 142 (suppl. Radio, 1929): 36–44. Lee, Robert D. Public Personnel Systems. 3rd ed. Gaithersburg, MD: Aspen, 1993. Lewis, David E. The Politics of Presidential Appointments: Political Control and Bureaucratic Performance. Princeton, NJ: Princeton University Press, 2008. McCartney, Laton. The Teapot Dome Scandal: How Big Oil Bought the Harding White House and Tried to Steal the Country. New York: Random House, 2008. McGinniss, Joe. The Selling of the President 1968. New York: Trident, 1969. McFarland, Andrew S. Common Cause: Lobbying in the Public Interest. Chatham, NJ: Chatham House, 1984. Milkis, Sidney M., and Michael Nelson. The American Presidency: Origins and Development, 1776–2007. 5th ed. Washington, DC: Congressional Quarterly Press, 2008. “Minority Party Access to the Ballot.” Duke Law Journal 2, no. 451 (June 1971). Mofﬁtt, Robert E. Gutting the Hatch Act: Congress’s Plan to Re-politicize the Civil Service. Washington, DC: Heritage Foundation, 1993. Mutch, Robert E. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law. New York: Praeger, 1988. Noggle, Burl. Teapot Dome: Oil and Politics in the 1920’s. Baton Rouge: Louisiana State University Press, 1962.

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Overacker, Louise. “The Regulation of Lobbying.” American Political Science Review 21 (1927): 335. Overacker, Louise. Money in Elections. New York: Macmillan, 1932. Overacker, Louise. “Campaign Funds in the Presidential Election of 1936.” American Political Science Review 31 (1937): 473–98. Overacker, Louise. Presidential Campaign Funds. Boston: Boston University Press, 1946. Paglin, Max D., ed. The Communications Act: A Legislative History of the Major Amendments, 1934–1996. Silver Spring, MD: Pike & Fischer, 1999. Patterson, James T. Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933–1939. Lexington: University of Kentucky Press, 1967. Peabody, Robert L., Jeffrey M. Berry, William G. Frasure, and Jerry Goldman. To Enact a Law: Congress and Campaign Financing. New York: Praeger, 1972. Phillips, Charles F. The Regulation of Public Utilities: Theory and Practice. Arlington, VA: Public Utilities Reports, 1993. Pollock, James. K. Party Campaign Funds. New York: Knopf, 1926. Raskin, Jamin. Overruling Democracy: The Supreme Court vs. The American People. New York: Routledge, 2003. Ravage, M. E. The Story of Teapot Dome. New York: B. Franklin, 1974. Roberts, Robert N., and Marion T. Doss Jr. From Watergate to Whitewater: The Public Integrity War. Westport, CT: Praeger, 1997. Rose, Henry. “A Critical Look at the Hatch Act.” Harvard Law Review 75, no. 3 (1962): 48. Rosenbloom, David H. Federal Service and the Constitution: Development of the Public Employee Relationship. Ithaca, NY: Cornell University Press, 1971. Rotunda, Ronald D. “Constitutional and Statutory Restrictions on Political Parties in the Wake of Cousins v. Wigoda.” Texas Law Review 53, no. 935 (1975). Rowan, Ford. Broadcast Fairness: Doctrine, Practice, Prospects: A Reappraisal of the Fairness Doctrine and Equal Time Rule. New York: Longmans, 1984. Saffell, David C., ed. Watergate: Its Effects on the American Political System. Cambridge, MA: Winthrop, 1974. Schlesinger, Arthur M. The Cycles of American History. Boston: Houghton Mifﬂin, 1986. Scott, Roy V. “Milton George and the Farmers’ Alliance Movement.” Mississippi Valley Historical Review 45, no. 1 (1958): 90. Senate Select Committee on Presidential Campaign Activities. The Senate Watergate Report. New York: Dell, 1974. Shannon, Jasper B. Money and Politics. New York: Random House, 1959.

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Shores, Venila S. “The Hayes-Conkling Controversy.” Smith College Studies in History 4, no. 4 (1919): 215–79. Siebecker, Michael R. “Building a ‘New Institutional’ Approach to Corporate Speech.” Alabama Law Review 59 (2008): 247. Simmons, Steven J. The Fairness Doctrine and the Media. Berkeley: University of California Press, 1978. Smith, Bradley A. “Judicial Protection of Ballot-Access Rights: Third Parties Need Not Apply.” Harvard Journal of Legislation 28 (1991): 167. Smith, Bradley A. Unfree Speech: The Folly of Campaign Finance Reform. Princeton, NJ: Princeton University Press, 2001. Starr, John, and M. R. Werner. Teapot Dome. New York: Viking, 1959. Stratton, David H. Tempest over Teapot Dome: The Story of Albert B. Fall. Oklahoma Western Biographies, vol. 16. Norman: University of Oklahoma Press, 1998. Taylor, Paul, and Norman Ornstein. “The Case for Free Air Time: A Broadcast Spectrum Fee for Campaign Finance Reform.” Working Paper. New America Foundation, Public Assets Program. June 2002. Thayer, George. Who Shakes the Money Tree? American Campaign Financing Practices from 1789 to the Present. New York: Simon & Schuster, 1973. Thompson, Joanne J. “Social Workers and Politics: Beyond the Hatch Act.” Social Work 39, no. 4 (1994): 457–65. U.S. Ofﬁce of Special Counsel. “Political Activity and the Federal Employee.” 2005. http:// http://www.osc.gov/documents/hatchact/Copy%20of%20haﬂyer.htm. Weisner, Herman B. The Politics of Justice: A. B. Fall and the Teapot Dome Scandal: A New Perspective. Albuquerque, NM: Creative Designs, 1988. Wicker, Tom. One of Us. New York: Random House, 1991. Williams, Charles R., ed. Diary and Letters of Rutherford Birchard Hayes: Nineteenth President of the United States. Columbus: Ohio State Archaeological and Historical Society, 1922. Zelizer, Julian E. “Seeds of Cynicism: The Struggle over Campaign Finance, 1956– 1974.” Journal of Policy History 14, no. 73 (2002).

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INDEX Abramoff, Jack, 300–301 Adams, John, 11 Adams, John Quincy, 11, 12, 16, 17 Ads, issue. See Issue ads Amendments to the Publicity Act of 1910. See Federal Corrupt Practices Act of 1911 American Crossroads, 330, 331 American Party of Texas v. White (1974), 212, 216, 217 Anderson, John, 205–6, 210, 213 Anderson v. Celebrezze (1983), 205–13; about, 139, 205; analysis, 211–13; document, 205–11; Munro v. Socialist Workers Party (1986) and, 216, 217; Timmons v. Twin Cities Area New Party (1997) and, 247 Anti-Assessment Act of 1876, 25–31, 59 Arkansas Educational Television Commission v. Forbes (1998), 139–40 Arlington Heights v. Metropolitan Housing Development Corp. (1977), 236 Armstrong Commission, 41, 46, 47 Arthur, Chester A., 23, 37 Ashmore-Goodell bill, 157 Assessment: about, 1–2; AntiAssessment Act of 1876, 25–31, 59; Civil Service Act of 1883, 32, 36, 38; executive order (1877), 21–24; Ex Parte Curtis (1882), 25–31; Harrison, William Henry and, 12, 14–18; Naval Appropriations Act of 1867, 19–20. See also Patronage

Associational rights: Buckley v. Valeo (1976), 195; California Democratic Party v. Jones (2000), 253–59; Cousins v. Wigoda (1975), 177, 178, 179; Eu v. San Francisco County Democratic Central Comm. (1989), 141, 245, 254, 306; Tashjian v. Republican Party of Connecticut (1987), 141, 245, 255, 257–58; Timmons v. Twin Cities Area New Party (1997), 243–49. See also First Amendment; 14th Amendment Austin v. Michigan State Chamber of Commerce (1990), 228–33; about, 140, 228; analysis, 232–33; Buckley v. Valeo (1976) and, 197, 309; Citizens United v. Federal Election Commission (2010) and, 303–4, 308–9, 313–14, 315, 316; document, 228–32; First National Bank of Boston v. Bellotti (1978) and, 203, 309. See also Citizens United v. Federal Election Commission (2010) Baker v. Carr (1962), 141, 174–75 Ballot access: Anderson v. Celebrezze (1983), 205–13; Jenness v. Fortson (1971), 143–48; Munro v. Socialist Workers Party (1986), 214–19; Storer v. Brown (1974), 139, 207, 210–11, 215, 217; Williams v. Rhodes (1968), 127–31 Bankhead, John, 97 Bates v. Little Rock (1960), 177, 201

Bipartisan Campaign Reform Act of 2002, 260–83; about, 251, 252, 260; analysis, 277–83; Citizens United v. Federal Election Commission (2010) and, 313, 314; document, 260–77; Honest Leadership and Open Government Act of 2007 and, 301; Internal Revenue Tax Code, Title 26, Sections 501(c) and 527, and, 328; McConnell v. Federal Election Commission (2003) and, 284–97. See also Citizens United v. Federal Election Commission (2010); Federal Election Campaign Act of 1971; McConnell v. Federal Election Commission (2003) Blanket primary elections, 252, 253–59 Borah, William, 73 Boston Gazette editorial (March 26, 1812), 5–8; about, 5; analysis, 7–8; document, 5–7 Bradley, Joseph, 30–31 Brandenburg v. Ohio (1969), 305 Broadcast regulations: Burroughs and Cannon v. United States (1934), 81–85; Fairness Doctrine, 112–18; Federal Communications Act of 1934, 86–90; Mayﬂower Doctrine, 92, 112, 117; Political Broadcast Act of 1970, 139, 155, 156; Radio Act of 1912, 42, 75, 78–79; Radio Act of 1927, 75–80; Red Lion Broadcasting Co. v. Federal Communications Commission (1969), 132–38

343

344 Brock, William E., III, 166 Brown, Fred, 97 Bryan, William Jennings, 3–4, 45 Buckley, James, 160, 194, 196 Buckley v. Valeo (1976), 180–97; about, 125, 140, 180, 252; analysis, 194–97; Austin v. Michigan State Chamber of Commerce (1990) and, 229–30, 231, 232, 309; Citizens United v. Federal Election Commission (2010) and, 308, 311–12, 313, 314, 315; document, 180–94; document: contribution limitations, 184–86; document: expenditure limitations, 186–90; document: general principles, 181–83; document: public ﬁnancing of presidential election campaigns, 192–94; document: reporting and disclosure requirements, 190–92; Federal Election Campaign Act of 1971 and, 149, 155, 160, 166; First National Bank of Boston v. Bellotti (1978) and, 202–3; Internal Revenue Tax Code, Title 26, Sections 501(c) and 527, and, 327, 331; McConnell v. Federal Election Commission (2003) and, 285, 286, 288, 289, 290, 292–93, 295 Bullock v. Carter (1972), 206 Bundling, 251, 298–302 Burroughs, Ada, 84 Burroughs and Cannon v. United States (1934), 81–85; about, 42, 81; analysis, 84–85; document, 81–84 Bush, George W., 251, 278, 279, 301 Cable, John, 73–74 California Democratic Party v. Jones (2000), 253–59; about, 252, 253; analysis, 257–59; document, 253–57 Campaign Communications Reform Act of 1971, 156–57 Campaign communications statutes: Bipartisan Campaign Reform Act of 2002, 260–83; Campaign Communications Reform Act of 1971, 156–57; Federal Communications Act of 1934, 86–90; Federal Election Campaign Act of 1971, 149–70; Political Broadcast Act of 1970, 139, 155, 156; Radio Act of 1912, 42, 75, 78–79; Radio Act of 1927, 75–80

Index Campaign ﬁnance court decisions: Austin v. Michigan State Chamber of Commerce (1990), 228–33; Buckley v. Valeo (1976), 180–97; Citizens United v. Federal Election Commission (2010), 303–17; First National Bank of Boston v. Bellotti (1978), 198–204; McConnell v. Federal Election Commission (2003), 284–97; United States v. United Auto Workers (1957), 119–26; United States v. U.S. Brewers’ Association (1916), 55–60 Campaign ﬁnance statutes and regulations: Bipartisan Campaign Reform Act of 2002, 260–83; Federal Corrupt Practices Act of 1910, 41, 49, 52, 53–54; Federal Corrupt Practices Act of 1911, 49–54; Federal Election Campaign Act of 1971, 149–70; Hatch Act of 1939, 91, 97; Hatch Act of 1939, amendments of 1940, 94–99; Honest Leadership and Open Government Act of 2007, 298–302; Internal Revenue Tax Code, Title 26, Sections 501(c) and 527, 318–31; Labor-Management Relations Act of 1947, 107–11; Naval Appropriations Act of 1867, 19–20; Presidential Election Campaign Fund Act of 1966, 93; Public Utilities Holding Company Act of 1935, 43; Radio Act of 1912, 42, 75, 78–79; Revenue Act of 1971, 139, 155, 159; Tillman Act (1907), 44–48; War Labor Disputes Act of 1943, 91–92, 107, 108–9, 110, 124–25 Candidates: fusion, 243–49; independent presidential, 205–13 Cannon, James, Jr., 84. See also Burroughs and Cannon v. United States (1934) Celebrezze, Anthony, 212. See also Anderson v. Celebrezze (1983) Chandler, William, 45, 46 CIO. See Congress of Industrial Organizations Circular letters, 14, 15–16, 17 Citizens United, 304, 305, 314 Citizens United v. Federal Election Commission (2010), 303–17; about, 119, 126, 251, 252, 303; analysis, 314–17; Austin v. Michigan State Chamber of Commerce

(1990) and, 228, 232, 233; Bipartisan Campaign Reform Act of 2002 and, 283, 297; document, 303–14; First National Bank of Boston v. Bellotti (1978) and, 203–4; Tillman Act (1907) and, 48. See also Austin v. Michigan State Chamber of Commerce (1990); Bipartisan Campaign Reform Act of 2002 City of Mobile v. Bolden (1980), 174 Civil Service Act of 1883, 32–39; about, 32; analysis, 37–38; document, 32–37 Civil Service Commission, 32–34, 37–38 Clark, Dick, 166 Clay, Henry, 17 Cleveland, Grover, 38 Clinton, Bill, 277, 278 Clinton, Hillary, 304, 314 Cockran, William B., 47 Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996), 140, 197, 277–78 Committee for the Reelection of the President (CREEP), 157 Common Cause, 155–56, 157 Communications statutes. See Campaign communications statutes Congress of Industrial Organizations (CIO): Council on Political Education, 108–9; United States v. Congress of Industrial Organizations (1948), 92, 110–11, 123, 307, 308 Conkling, Roscoe, 22–23, 37 Conservative Coalition, 108, 158 Cook, Fred J., 133, 137 Coolidge, Calvin, 74, 79 Cooper, John, 156 COPE (Council on Political Education), 108–9 Corporate PACs, 164–65, 166, 305–6, 315, 316, 327 Corporate rights: Citizens United v. Federal Election Commission (2010), 303–17; First National Bank of Boston v. Bellotti (1978), 198–204 Council on Political Education (COPE), 108–9 Court decisions. See Campaign ﬁnance court decisions; Election court decisions; speciﬁc court decisions Cousins v. Wigoda (1975), 176–79; about, 140, 176; analysis, 178–79;

Index Anderson v. Celebrezze (1983) and, 208; document, 176–78 CREEP (Committee for the Reelection of the President), 157 Crossroads GPS, 330, 331 Curtis, Newton Martin. See Ex Parte Curtis (1882) Daugherty, Harry M., 73 Davis v. Bandemer (1986), 220–27; about, 141, 220; analysis, 225–27; document, 220–24 Dawkins, Andy, 243, 247. See also Timmons v. Twin Cities Area New Party (1997) Democratic National Committee, 277, 278 Democratic National Convention (1972), 176–79 Democratic Party of the United States v. Wisconsin (1981), 140–41, 255 Dill, Clarence, 79 Dukakis, Michael, 327 Election court decisions: Anderson v. Celebrezze (1983), 205–13; California Democratic Party v. Jones (2000), 253–59; Cousins v. Wigoda (1975), 176–79; Jenness v. Fortson (1971), 143–48; Munro v. Socialist Workers Party (1986), 214–19; United States v. Classic (1941), 100–106; United States v. Gradwell (1917), 61–66; Williams v. Rhodes (1968), 127–31 Electioneering communications, 280–81, 286–87, 291–93, 295–97. See also Citizens United v. Federal Election Commission (2010) Elrod v. Burns (1976), 201 EMILY’s list (Early Money Is Like Yeast), 301 Enron, 279 Equal Protection Clause of 14th Amendment: Davis v. Bandemer (1986), 220–27; Jenness v. Fortson (1971), 145–46, 147; Reynolds v. Sims (1964), 173–74; Shaw v. Reno (1993), 234–42; Williams v. Rhodes (1968), 127, 128, 130, 131. See also 14th Amendment Equal time rule: Federal Communications Act of 1934, 89, 90; Federal Election Campaign Act of 1971, 90, 156–57; Federal Radio Commission, 42; Radio Act of 1927, 75, 79–80

345 Eu v. San Francisco County Democratic Central Comm. (1989), 141, 245, 254, 306 Ewing, Thomas, 15–16 Executive order (June 22, 1877): about, 2, 21; analysis, 22–24; document, 21 Exempt functions: deﬁned, 321, 326, 328–29 Ex Parte Curtis (1882), 25–31; about, 25, 59; analysis, 29–31; dissenting opinion, 27–29; document, 25–29; majority opinion, 25–27 Ex Parte Yarbrough (1884), 85 Fairness Doctrine, 112–18; about, 92–93, 112; analysis, 117–18; document, 112–16; Red Lion Broadcasting Co. v. Federal Communications Commission (1969) and, 132–38 FCC. See Federal Communications Commission FEC. See Federal Election Commission FECA. See Federal Election Campaign Act of 1971 Federal Communications Act of 1934, 86–90; about, 42, 86, 260; analysis, 89–90; document, 86–89. See also Bipartisan Campaign Reform Act of 2002 Federal Communications Commission (FCC): Federal Communications Act of 1934, 86–88, 90; Mayﬂower Doctrine, 92, 112, 117; Red Lion Broadcasting Co. v. Federal Communications Commission (1969), 132–38. See also Fairness Doctrine Federal Corrupt Practices Act of 1910, 41, 49, 52, 53–54 Federal Corrupt Practices Act of 1911, 49–54; about, 41, 42, 49, 72–73; analysis, 52–54; document, 49–52; United States v. Gradwell (1917) and, 65, 66 Federal Corrupt Practices Act of 1925, 67–74; about, 42, 67; analysis, 72–74; Burroughs and Cannon v. United States (1934) and, 81–85; deﬁciencies of, 155–56; document, 67–72 Federal Election Campaign Act of 1971, 149–70; about, 140, 149; analysis, 155–69; analysis: Federal Election Campaign Act of 1971,

155–57; analysis: Federal Election Campaign Act of 1971, amendments of 1974, 157–60; analysis: Federal Election Campaign Act of 1971, amendments of 1976, 160, 164–66; analysis: Federal Election Campaign Act of 1971, amendments of 1979, 166–69; Buckley v. Valeo (1976) and, 180; document: FECA as amended in 1979, 149–55; equal time rule repealed by, 90; Honest Leadership and Open Government Act of 2007 and, 298–302. See also Bipartisan Campaign Reform Act of 2002; Buckley v. Valeo (1976) Federal Election Campaign Act of 1971, amendments of 1974: analysis, 157–60; Buckley v. Valeo (1976) and, 180–97; Citizens United v. Federal Election Commission (2010) and, 314; Internal Revenue Tax Code, Title 26, Sections 501(c) and 527, and, 326–27, 328 Federal Election Campaign Act of 1971, amendments of 1976, 160, 164–66 Federal Election Campaign Act of 1971, amendments of 1979: analysis, 166–69; document, 149–55 Federal Election Commission (FEC): advisory opinions, 153, 164–65, 168, 169, 197, 252, 327; appointment process, 160, 164, 165, 196–97; Citizens United v. Federal Election Commission (2010), 303–17; Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996), 140, 197, 277–78; establishment of, 158, 159, 194, 195; Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001), 252; Federal Election Commission v. Massachusetts Citizens for Life (1986), 230, 232; Federal Election Commission v. National Right to Work Committee (1982), 140; Federal Election Commission v. Wisconsin Right to Life (2007), 126, 281, 283, 296–97, 303; McConnell v. Federal Election Commission (2003), 284–97; reports, 168; SpeechNow.org v. Federal Election Commission (2010), 251; Wisconsin

346 Right to Life, Inc. v. Federal Election Commission (2006), 296 Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001), 252 Federal Election Commission v. Massachusetts Citizens for Life (1986), 230, 232 Federal Election Commission v. National Right to Work Committee (1982), 140 Federal Election Commission v. Wisconsin Right to Life (2007), 126, 281, 283, 296–97, 303 Federal employees, 94–99 Federal Radio Commission (FRC), 42, 79, 80, 89, 90 Feingold, Russell, 277. See also Bipartisan Campaign Reform Act of 2002 Fifteenth Amendment, 236–37, 255 Finance. See Campaign ﬁnance court decisions; Campaign ﬁnance statutes and regulations First Amendment: Anti-Assessment Act of 1876, 30, 31, 59; Austin v. Michigan State Chamber of Commerce (1990), 228–33; Buckley v. Valeo (1976), 195; California Democratic Party v. Jones (2000), 253–59; Citizens United v. Federal Election Commission (2010), 303–17; Cousins v. Wigoda (1975), 177, 178, 179; Ex Parte Curtis (1882), 30, 31, 59; First National Bank of Boston v. Bellotti (1978), 198–204; Red Lion Broadcasting Co. v. Federal Communications Commission (1969), 132, 133–34, 137; Tillman Act (1907), 55, 60; Timmons v. Twin Cities Area New Party (1997) and, 243–49; United States Civil Service Commission v. National Association of Letter Carriers (1973), 99; United States v. United Auto Workers (1957), 123, 125; United States v. U.S. Brewers’ Association (1916) and, 55, 60; Williams v. Rhodes (1968), 129 First National Bank of Boston v. Bellotti (1978), 198–204; about, 140, 198; analysis, 202–4; Austin v. Michigan State Chamber of Commerce (1990) and, 231, 232, 309; Buckley v. Valeo (1976) and, 197; Citizens United v. Federal Election

Index Commission (2010) and, 308, 312, 313, 316; document, 198–202 501(c) organizations, 251, 318–20, 326, 328–31 501(c)(3) organizations, 329 501(c)(4) organizations, 318, 329–30, 331 501(c)(5) organizations, 318, 330 501(c)(6) organizations, 318, 330 527 organizations, 251, 318, 320–26, 328, 330–31 527 Reform Act of 2005, 251, 328 14th Amendment: Davis v. Bandemer (1986), 220–27; Jenness v. Fortson (1971), 145–46, 147; Reynolds v. Sims (1964), 173–74; Shaw v. Reno (1993), 234–42; Timmons v. Twin Cities Area New Party (1997), 243–49; Williams v. Rhodes (1968), 127, 128, 130, 131 Fowler, Mark, 118 FRC (Federal Radio Commission), 42, 79, 80, 89, 90 Free speech: Buckley v. Valeo (1976), 195; Citizens United v. Federal Election Commission (2010), 303–17; First National Bank of Boston v. Bellotti (1978), 198–204. See also First Amendment Fusion ban, 243–49 Gaffney v. Cummings (1973), 141, 171, 172, 174, 175 Garﬁeld, James, 24, 37 Georgia election laws, 143–48 Gerry, Elbridge, 5, 8 The Gerry-Mander. See Boston Gazette editorial (March 26, 1812) Gerrymandering. See Redistricting Gomillion v. Lightfoot (1960), 237 Great Lakes Broadcasting Co. v. Federal Radio Commission (1930), 42 Guinn v. United States (1915), 236–37 Hanna, Mark, 3, 45, 59, 155 Harding, Warren G., 73 Hargis, Billy James, 133 Harrison, William Henry: assessment, position on, 2, 12; circular letter sent on behalf of, 14, 15–16, 17; inaugural address, 14–15, 17 Hartley, Fred A., 110 Hastert, Dennis, 278 Hatch, Carl, 97 Hatch Act of 1939, 91, 97

Hatch Act of 1939, amendments of 1940, 94–99; about, 91, 94, 141; analysis, 97–99; document, 94–97 Hatch Act Reform Amendments of 1993, 99 Hatﬁeld, Mark, 166, 168 Hayes, Rutherford B., 2, 21–24 Hayes, Wayne L., 158 Hernandez v. Texas (1954), 173 Hillary: The Movie, 304, 305, 314 Hirabayashi v. United States (1943), 236 Honest Leadership and Open Government Act of 2007, 298–302; about, 251, 298; analysis, 300– 302; document, 298–300 Hoover v. Intercity Radio Co. (1923), 78–79 Hunt v. Cromartie (1999), 241 Hunt v. Cromartie II (2001), 241 Illinois Democratic Party, 176–79 Illinois Elections Bd. v. Socialist Workers Party, 208 Inaugural addresses: Harrison, William Henry, 14–15, 17; Jackson, Andrew, 9–10, 12 Independent presidential candidates, 205–13 Indiana state apportionment case, 220–27 Internal Revenue Tax Code, Title 26, Sections 501(c) and 527, 318–31; about, 251, 318; analysis, 326–31; document, 318–26; document: Section 501, 318–20; document: Section 527, 320–26 In the Matter of Editorializing by Broadcast Licensees Docket No. 8516 Report of the Federal Communications Commission. See Fairness Doctrine Issue ads, 280–81, 286–87, 291–93, 295–97. See also Citizens United v. Federal Election Commission (2010) Jackson, Andrew: Democratic Party, formation of, 17; inaugural address, 9–10, 12; spoils system, 1, 14, 16; State of the Union address, 9, 10–11, 12 Jackson, Fred S., 53, 54 Jaybird Democratic Association, 255 Jefferson, Thomas, 11–12 Jenness, Linda, 146

Index Jenness v. Fortson (1971), 143–48; about, 139, 143; analysis, 146–48; document, 143–46; Munro v. Socialist Workers Party (1986) and, 215–16, 217, 218, 219 Kenyon, William S., 73 KFKB Broadcast Association, Inc. v. Federal Radio Commission (1931), 42 Kirkpatrick v. Preisler (1969), 175 K Street Project, 300 Kusper v. Pontikes (1973), 177 Labor-Management Relations Act of 1947, 107–11; about, 92, 107; analysis, 108–11; Citizens United v. Federal Election Commission (2010) and, 307; document, 107–8; United States v. United Auto Workers (1957) and, 124 Labor unions: Citizens United v. Federal Election Commission (2010), 303–17; 501(c)(5) organizations, 318, 330; Labor-Management Relations Act of 1947, 107–11; United States v. United Auto Workers (1957), 119–26. See also speciﬁc unions Letters, circular, 14, 15–16, 17 Levin, Carl, 278 Levin money, 278, 280 Lobbying and Disclosure Act of 1995, 298, 301. See also Honest Leadership and Open Government Act of 2007 Lott, Trent, 278 Louisiana primary elections, 100–106 Lubin v. Panish (1974), 206, 218 Mahan v. Howell (1973), 174 Major parties, deﬁned, 159 Marcy, William Learned, 11 Mathias, Charles McC., 156, 166–67 Mayﬂower Doctrine, 92, 112, 117 McCain, John, 251, 277, 278, 328 McCain-Feingold Act. See Bipartisan Campaign Reform Act of 2002 McCarthy, Eugene, 160 McConnell, Mitch, 277 McConnell v. Federal Election Commission (2003), 284–97; about, 251, 252, 284; analysis, 293–97; Bipartisan Campaign Reform Act of 2002 and, 280, 281; Buckley v. Valeo (1976) and, 197; Citizens

347 United v. Federal Election Commission (2010) and, 303, 305, 313–14, 316; document, 284–93. See also Bipartisan Campaign Reform Act of 2002 McKinley, William, 3, 4, 45 Meehan, Martin, 277, 278 Michigan Campaign Finance Act, 228–33 Michigan State Chamber of Commerce, 228–33 Miller v. Johnson (1995), 8, 240, 241 Millionaire’s amendment, 281 Minnesota Democratic Farmer Labor Party, 243, 247. See also Timmons v. Twin Cities Area New Party (1997) Minnesota fusion ban, 243–49 Minor parties. See Parties, minor Minton, Sherman, 97 MoveOn.org, 330 Multicandidate PACs, 327 Multiparty candidates, 243–49 Munro v. Socialist Workers Party (1986), 214–19; about, 139, 214; analysis, 218–19; document, 214–18 NAACP v. Alabama (1958), 177, 182, 191, 195, 206 National Association of Broadcasters, 89 National Democratic Party, 176–79 National Labor Relations Act of 1935, 91, 109–10, 124 National Publicity Bill Organization, 47 National Republican Party, 16–17 National Security Political Action Committee, 327 Naval Appropriations Act of 1867, 19–20; about, 2, 19; analysis, 19–20; document, 19 NBC, Inc. v. United States (1943), 136 Newberry v. United States (1921), 42, 54, 66, 73, 92, 100–106 New York City’s custom house, 23, 37 New York Civil Liberties Union, 160 New York Times Co. v. Sullivan (1964), 182, 188, 195, 208, 305 Nixon, Richard, 139, 155, 156, 157, 158 Nixon v. Shrink Missouri Government PAC (2000), 197, 252 Norman v. Reed (1992), 139

North Carolina racial gerrymandering case, 234–42 O’Brien v. Brown (1972), 178 Ohio American Independent Party, 128, 130–31 Ohio election law cases: Anderson v. Celebrezze (1983), 205–13; Williams v. Rhodes (1968), 127–31 Packwood, Robert, 167 PACs. See Political action committees Parker, Alton B., 45–46 Parties, major, deﬁned, 159 Parties, minor: about, 139–40; Anderson v. Celebrezze (1983), 205–13; deﬁned, 159; Federal Election Campaign Act of 1971, 156–57; Jenness v. Fortson (1971), 143–48; Munro v. Socialist Workers Party (1986), 214–19; Storer v. Brown (1974), 139, 207, 210–11, 215, 217; Timmons v. Twin Cities Area New Party (1997), 243–49; Williams v. Rhodes (1968), 127–31 Party building, 168, 279–80 Party rights: Anderson v. Celebrezze (1983), 205–13; California Democratic Party v. Jones (2000), 253–59; Cousins v. Wigoda (1975), 176–79; Timmons v. Twin Cities Area New Party (1997), 243–49; United States v. Classic (1941), 100–106 Patronage: about, 1–2, 9; analysis, 11–12; circular letter on, 14, 15–16, 17; Civil Service Act of 1883, 32–39; documents, 9–11, 14–15; inaugural address (Harrison), 14–15, 17; inaugural address (Jackson), 9–10; State of the Union address (Jackson), 10–11. See also Assessment Pell, Claiborne, 157, 168 Pendleton Act. See Civil Service Act of 1883 Penrose, Boies, 2 Peoples, Dean, 215, 218. See also Munro v. Socialist Workers Party (1986) People’s Party, 2–3 Perkins, George W., 46 Pipeﬁtters v. United States (1972), 308 PL 69-632. See Radio Act of 1927

348 PL 73-416. See Federal Communications Act of 1934 PL 80-101. See Labor-Management Relations Act of 1947 PL 92-225. See Federal Election Campaign Act of 1971 PL 93-443. See Federal Election Campaign Act of 1971, amendments of 1974 PL 94-283. See Federal Election Campaign Act of 1971, amendments of 1976 PL 96-187. See Federal Election Campaign Act of 1971, amendments of 1979 PL 107-155. See Bipartisan Campaign Reform Act of 2002 PL 110-81. See Honest Leadership and Open Government Act of 2007 Police Dept. of Chicago v. Mosley (1972), 201 Political action committees (PACs): about, 108–9, 111; contributions by, 125, 126, 166; corporate, 164–65, 166, 305–6, 315, 316, 327; Internal Revenue Tax Code, Title 26, Sections 501(c) and 527, 326–27, 328; multicandidate, 327. See also speciﬁc PACs Political Broadcast Act of 1970, 139, 155, 156 Political committees, deﬁned, 67–68, 74 Political organizations, deﬁned, 321, 326 Political parties. See Parties, major, deﬁned; Parties, minor; speciﬁc political parties Political stability, 210–11, 213 Populist Party, 2–3 Port of New York customs collector, 23, 37 Postal Salary Increase Act of 1925, 73 Postal Service, 35, 38 Presidential campaigns, public ﬁnancing of, 93, 159, 192–94, 195 Presidential candidates, independent, 205–13 Presidential Election Campaign Fund Act of 1966, 93 Presidential election of 1824, 16–17 Presidential election of 1876, 22 Presidential election of 1896, 3–4, 45 Presidential election of 1900, 45 Presidential election of 1904, 45–46 Presidential election of 1944, 109

Index Presidential election of 1948, 109 Presidential election of 1972, 157, 176–79 Presidential election of 1980, 327 Presidential election of 1996, 277, 278 Presidential election of 2000, 251 Presidential election of 2004, 251, 301, 330 Presidential election of 2008, 304, 305, 330 Primary elections: California Democratic Party v. Jones (2000), 252, 253–59; United States v. Classic (1941), 100–106; United States v. Gradwell (1917), 61–66 Progressive movement, 45 Proposition 198 (California), 253–59 Prouty, Winston, 156 Public ﬁnancing of presidential campaigns, 159, 192–94, 195 Publicity Act of 1910. See Federal Corrupt Practices Act of 1910 Publicity Act of 1911. See Federal Corrupt Practices Act of 1911 Public Utilities Holding Company Act of 1935, 43 Quay, Matthew, 2 Racial gerrymandering case, 234–42 Radio Act of 1912, 42, 75, 78–79 Radio Act of 1927, 75–80; about, 42, 75, 86, 89; analysis, 78–80; document, 75–78; Federal Communications Act of 1934 and, 86, 89 Randall v. Sorrell (2006), 197, 252 Raskin, Jamin, 147–48 Ray v. Blair (1952), 178 Reagan, Ronald, 118, 137 Reapportionment, 171–75 Redistricting: Boston Gazette editorial (March 26, 1812), 5–8; Davis v. Bandemer (1986), 220–27; Gaffney v. Cummings (1973), 141, 171, 172, 174, 175; Shaw v. Reno (1993), 234–42; White v. Regester (1973), 171–75 Red Lion Broadcasting Co. v. Federal Communications Commission (1969), 132–38; about, 93, 118, 132; analysis, 136–38; document, 132–36 Reed, James A., 53, 54 Regulations. See Broadcast regulations; Campaign ﬁnance statutes and regulations; speciﬁc regulations

Reno, Janet, 239. See also Shaw v. Reno (1993) Republican National Committee, 99 Revenue Act of 1971, 139, 155, 159 Reynolds v. Sims (1964), 171, 172, 173–74, 175 Roberts Court, 126, 197, 282–83, 296–97, 316–17 Roosevelt, Franklin D., 91, 97, 108, 109 Roosevelt, Theodore, 45–48, 285 Root, Elihu, 47, 285 Rotation in ofﬁce, 11, 16 Rucker, William “Judge,” 52, 53 Scott, Hugh, 156 Shaw v. Hunt (1996), 241 Shaw v. Reno (1993), 234–42; about, 141–42, 234; analysis, 239–42; Davis v. Bandemer (1986) and, 227; document, 234–39 Shays, Christopher, 277, 278 Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. (1991), 305 Smith, Howard, 108 Smith-Connally Act of 1943, 91–92, 107, 108–9, 110, 124–25 Smith v. Allwright (1944), 106, 179, 255, 258 Socialist Labor Party, 128, 130 Socialist Workers Party, 146, 208, 215, 218. See also Munro v. Socialist Workers Party (1986) Soft money: Bipartisan Campaign Reform Act of 2002, 260–83; McConnell v. Federal Election Commission (2003), 284–97 Sorensen v. Wood (1932), 89 Speeches. See Inaugural addresses; State of the Union addresses SpeechNow.org v. Federal Election Commission (2010), 251 Spoils system. See Patronage Stability, political, 210–11, 213 Stalwarts, 22–23, 37 State of the Union addresses: Arthur, Chester A., 37; Jackson, Andrew, 9, 10–11, 12; Nixon, Richard, 158; Roosevelt, Theodore, 47–48 Statutes. See Campaign communications statutes; Campaign ﬁnance statutes and regulations; speciﬁc statutes Storer v. Brown (1974), 139, 207, 210–11, 215, 217

Index Summers, William H., 97 Sun Oil Company, 164, 327 SunPac, 164–65, 327 Sweezy v. New Hampshire (1957), 177 Taft, Robert A., 109, 110 Taft-Hartley Act. See LaborManagement Relations Act of 1947 Tashjian v. Republican Party of Connecticut (1987), 141, 245, 255, 257–58 Tax exempt organizations, 318–31 Teapot Dome Scandal, 42, 73, 74 Telecommunications Act of 1996, 90 Tenure of Ofﬁce Act of 1820, 12 Terry v. Adams (1953), 106, 179, 255, 258 Texas Democratic Party, 255 Texas reapportionment plan, 171–75 Tillman, Benjamin R., 45, 46 Tillman Act: An Act to Prohibit Corporations from Making Money Contributions in Connection with Political Elections (1907), 44–48; about, 41, 44, 285; analysis, 45–48; document, 44–45; United States v. U.S. Brewers’ Association (1916) and, 55–60 Timmons v. Twin Cities Area New Party (1997), 243–49; about, 141, 243; analysis, 247–49; document, 243–47 Treasury Department, 34–35, 38 Trinity Methodist Church, South v. Federal Radio Commission (1932), 42 Twin Cities Area New Party, 243–49 Twin Cities Area New Party v. McKenna (1994), 244 Tyler, John, 17

349 Unions. See Labor unions United Public Workers of America v. Mitchell (1947), 99 United States Civil Service Commission v. National Association of Letter Carriers (1973), 99 United States v. Classic (1941), 100– 106; about, 66, 92, 100; analysis, 104–6; document, 100–104 United States v. Congress of Industrial Organizations (1948), 92, 110–11, 123, 307, 308 United States v. Gradwell (1917), 61–66; about, 41–42, 61; analysis, 65–66; document, 61–65 United States v. United Auto Workers (1957), 119–26; about, 92, 119; analysis, 124–26; Citizens United v. Federal Election Commission (2010) and, 307, 308; dissenting opinion, 122–24; document, 119–24; majority opinion, 119–22 United States v. U.S. Brewers’ Association (1916), 55–60; about, 41, 55; analysis, 59–60; document, 55–59 United States v. Zenith Corporation (1926), 79 U.S. Criminal Code, sections 19 and 37, 61–66 Vieth v. Jubilerer (2004), 227 Voter education, 208–9, 212–13 Voting Rights Act of 1965, 141, 239, 241 Wagner Act of 1935, 91, 109–10, 124 Wallace, George C., 128, 130 Walter, Francis E., 97

War Labor Disputes Act of 1943, 91–92, 107, 108–9, 110, 124–25 Washington, George, 11 Washington state ballot access provision, 214–19 Washington State Grange v. Washington State Republican Party (2008), 252, 259 Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton (2002), 305 Watergate scandal, 74, 155, 157, 158 Webster, Daniel, 14, 15–16, 17 Wesberry v. Sanders (1964), 141, 175 West Virginia primary elections, 61–66 White, Wallace H., 79 White v. Regester (1973), 171–75; about, 141, 171; analysis, 173–75; document, 171–73 White v. Rockefeller (1969), 175 Whitney v. California (1927), 42 Wigoda v. Cousins (1972), 178. See also Cousins v. Wigoda (1975) Williams v. Rhodes (1968), 127–31; about, 93, 127, 139; analysis, 130–31; Anderson v. Celebrezze (1983) and, 206, 210, 213; Cousins v. Wigoda (1975) and, 177; document, 127–30; Jenness v. Fortson (1971) and, 143, 144–45, 146–47, 148; Munro v. Socialist Workers Party (1986) and, 215, 219; Timmons v. Twin Cities Area New Party (1997) and, 247 Wisconsin Right to Life, Inc. v. Federal Election Commission (2006), 296 Yick Wo v. Hopkins (1886), 177

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About the Authors Thomas J. Baldino is a professor of political science at Wilkes University. His teaching and research interests include legislative politics, parties and elections, and Pennsylvania government and politics. He serves as a faculty associate to the Legislative Ofﬁce of Research Liaison of the Pennsylvania House of Representatives and as the associate editor of Commonwealth, the journal of the Pennsylvania Political Science Association. His research has been published in political science and history journals and in political encyclopedias. With Kyle Kreider, he has coauthored Of the People, By the People, For the People: A Documentary Record of Voting Rights and Electoral Reform, published by Greenwood Press. Kyle L. Kreider is an associate professor of political science at Wilkes University. His teaching and research interests include the Supreme Court, civil rights and civil liberties, and courts’ use of social science. He has written articles for The Encyclopedia of American Civil Rights and Liberties (Greenwood Press, 2006) and the Encyclopedia of the First Amendment (CQ Press, 2008). In addition to teaching and research responsibilities, Dr. Kreider also serves as Wilkes University’s coordinating pre-law advisor.

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