I am pleased to welcome Diana Dwyre and Robin Kolodny to the ELB Book Corner, authors of the new book, The Fundamentals of Campaign Finance: Why We Have the System We Have (University of Michigan Press). The 30% discount code for ELB readers is UMF24. The book is also available in open access: https://doi.org/10.3998/mpub.9813302. This is the second of three posts.
The Triumph of Free Speech
How do we both promote freedom of speech in American democracy and allow everyone to be heard? The answer is, we don’t. Today’s court doctrine on campaign finance clearly privileges freedom of speech over any other democratic value. We highlight key cases since the 1970s to show how the tension between limiting speech or limiting access happened incrementally as cases focused increasingly on the free speech rights of contributors and spenders. Whose speech is free? The 1970s reformers thought the distinction between an individual person and a corporation was clear. But critics pressed the court to allow exceptions first for non-profit corporations, then for corporations with a public purpose, and eventually for any corporation.
There have been many changes since 1976 when the Supreme Court declared in Buckley v. Valeo that contributions made directly to candidates and parties may be limited because they can cause corruption but independent expenditures do not pose a corruption concern and limiting them violates the First Amendment’s guarantee of free speech. At first, the Court upheld laws they agreed could combat corruption, such as their decision in McConnell v. Federal Election Commission (2003) upholding the 2002 Bipartisan Campaign Reform Act (BCRA) ban on party soft money. By 2007, the Court shifted its campaign finance jurisprudence in a decidedly deregulatory direction to protect corporations’ free speech rights.
President George W. Bush’s 2005 appointments of John Roberts as Chief Justice after William Rehnquist’s death and of Samuel Alito to replace retired Justice Sandra Day O’Connor gave the Court a conservative majority that applied the freedom of speech standard to rules designed to reduce the influence of money in American elections to curb corruption. Moreover, as Ann Southworth documents in Money Unleashed: The Campaign to Deregulate Election Spending (Chicago 2023), as the new conservative majority emerged, a network of conservative lawyers, advocacy groups, government officials and big contributors successfully challenged many campaign finance restrictions in the courts on First Amendment grounds. These deregulatory decisions have had a dramatic effect on who funds U.S. elections.
The relative participation of various campaign finance actors has shifted dramatically from strongly regulated candidates, parties, and PACs to hardly limited 527 groups, 501(c) nonprofits, and especially super PACs. In 1996, PAC contributions and independent expenditures constituted 84% of all non-candidate spending in federal elections, and party contributions, coordinated and independent expenditures were the remaining 16%. In 2002, the last election before BCRA, party soft money was 60% and traditional PAC contributions and independent expenditures constituted 35% of total non-candidate spending. The 2010 Citizens United and SpeechNow.org decisions extended political free speech rights to all corporations to raise and spend unlimited amounts, paving the way for the emergence of super PACs. By 2012, super PACs did over 32% of the non-candidate spending, traditional PACs 22%, and parties only 14%. By 2020, super PAC spending constituted almost 60% of all non-candidate spending, while traditional PACs made up only 9% and parties only 8% of the total. This is a striking shift in the relative participation of campaign actors from PACs (once the big spenders) and parties (thought to be the most accountable and least polarizing campaign actors), which must raise money in limited amounts to combat corruption and fully disclose all their contributors, to super PACs, which can raise and spend unlimited amounts and may receive unlimited anonymous funds from 501(c) nonprofits that do not have to disclose their contributors. So, whose speech is free?