28 December 2023
U.S. elections contain a severe and obvious flaw –– individuals and groups spend countless dollars on electoral influence while governing institutions remain relatively powerless to intervene. Every federal election since 1998 has increased in total spending, with the 2020 general election costing over 16 billion dollars (1). The state of election regulations in effect today stems from a complicated case involving the beginning of the Federal Election Commission (FEC). In a mixed per curiam opinion, Buckley v. Valeo (1976) declared limits on election spending an unconstitutional restriction on candidates’ free speech protected under the First Amendment (2). The decision also upheld contribution limits, restructured FEC leadership, and validated the existence of the FEC. This case stood as groundwork for later reform limits by the Roberts Court and linked speech rights to large private spending. The Court should recognize that campaign spending is not speech but commerce, and its regulation should be evaluated based on the degree it indirectly impacts free speech instead of being seen as equivalent. Current Court doctrine gives those with massive expenditure capability unfair advantage in candidate selection and shaping national policy.
Buckley predicated its ruling on the determination that expenditure limits on election spending unconstitutionally restrict the “quantity” of speech allowed (2). While 7 out of 8 Justices concurred in the opinion, several dissented on striking expenditure limits. Justice White correctly ascertained the regulations to not “control” speech, being “neutral as to [its] content,” and understood the regulations recognize the “mortal danger” that expenditures spent on a candidate’s behalf “may be used to secure the express or tacit understanding that the giver will enjoy political favor if the candidate is elected” (2). The Court’s majority created too narrow a “contribution” definition, extending undue speech protections to spending in a candidate’s favor while not doing so for money given to candidates with the same purpose. The ambiguous distinction between “contribution” and “expenditure” still allows the biggest contributors outsized influence over candidate success.
Allowing unlimited individual contributions gives billionaires an immediate seat at the table in primary and general elections. Ross Perot, Michael Bloomberg, Donald Trump, and Tom Steyer represent the harmful trend where self-funded campaigns gain undeserved clout simply because the candidate can stand to lose the massive expenditure. None of these candidates’ campaigns had a chance of success in their elections, except for Donald Trump’s 3rd time running. The unlimited expenditure cap crowds out the presidential pool with less qualified but highly funded candidates, yet this is not nearly Buckley’s worst consequence.
Using the expenditure-as-speech framework, Chief Justice John Roberts’s Republican-appointed Court majority, in Citizens United v. FEC (2010), struck down limits on group spending in a bipartisan “electioneering” law, treating corporations and organizations as protected entities under the First Amendment. The decision opened the capability for political organizations representing wealthy corporations and individual donors to spend infinite sums on issue-influence campaigns. Using Citizens United as precedent, a federal appeals court ruled in Speechnow.org v. FEC (2010) that groups technically outside campaigns, labeled “superPACs,” could receive infinite donations from other organizations, corporations, and donors (4). While the FEC required disclosing the donors, contributors could remain anonymous through nonprofits, creating the phenomenon of “dark money,” (4). Since these rulings, dark money expenditures increased 6000% between 2006 and 2012 (4). Citizens United inaugurates the Roberts Court’s favorable jurisprudence towards private sector election funding and an exponential increase in U.S. election spending.
Adapting to their newfound restrictions, 16 states created public campaign finance systems, where candidates could receive government funding in exchange for taking on expenditure limits along with additional contribution and disclosure requirements. Buckley allowed the FEC to implement such a system, as the program’s voluntary nature allows candidates the option to engage in a privately funded campaign without expenditure limits if they wish (2). However, the Roberts Court butchered the potential of these reforms.
In Arizona Free Enterprise Club v. Bennett (2011), the Court struck down an Arizona law compensating candidates who participated in their public finance program in amounts proportional to what private campaigns spent over the expenditure limit (5). This effectively equalized the resources between publicly and privately funded candidates while diminishing the returns privately funded campaigns gained from outspending opponents. The Roberts Court argued the law illegally drowned out the voices of the privately funded candidates with government financed opposition, but the reasoning does not consider the reverse possibility, where enormous private funding drowns out the speech of lesser funded candidates (4). Since this case, participation in Arizona’s public finance system now sits at its lowest levels, at 26% recently in 2016 (6).
While many Americans understand the problems from Citizens United, the Roberts Court merely expanded the speech-to-political-expenditure equivalence Buckley created. Reforms targeting corporate and billionaire influence will need to revise the entire string of precedent restricting the FEC. The Court should handle government restrictions on the quantity of speech with less scrutiny than qualitative restrictions, as limiting the amount of campaign ads favoring a single politician is not censorship. A possible election expenditure quantity exists where candidates and political groups can still organize and be heard. The Court should figure out these quantities rather than continuing to allow the wealthy a monopoly on electoral influence.
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Works Cited
- OpenSecrets. (2022). Cost of Election. Retrieved November 30, 2023, from https://www.opensecrets.org/elections-overview/cost-of-election?cycle=2020&display=T&infl=Y
- “Buckley v. Valeo.” 424 U.S. 1. (1976) https://supreme.justia.com/cases/federal/us/424/1/
- “Citizens United v. FEC.” 558 U.S. 310. (2010). https://supreme.justia.com/cases/federal/us/558/310/
- Lau, T. (2019, December 12). Citizens United Explained. Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/citizens-united-explained
- “Arizona Free Enterprise Club’s Freedom Club PAC, et al. v. Bennett, et al; McComish, et al. v. Bennett, et al.,” 564 U.S. 721. (2011). https://supreme.justia.com/cases/federal/us/564/721/
- Navarro-Rivera, J., & Caicedo, E. (2017). Public Funding for Electoral Campaigns. Demos. Retrieved October 27, 2023, from https://www.demos.org/sites/default/files/publications/Public_Financing_Factsheet_FA%5B5%5D.pdf
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