Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues
activities which were not narrowly tailored to meet the objective of preventing such undue influence or the appearance of corruption. 123
In relation to the interest of preventing “corruption,” the Supreme Court has found that although such governmental interest is compelling, that interest is not necessarily advanced by restricting “independent expenditures” by private entities in political campaigns. In Buckley v. Valeo, the Supreme Court found “that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures.”124 Similarly, the Court found in Citizens United that a prohibition on “independent expenditures” does not advance in a sufficient manner the interest of preventing corruption: “[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”125 For this reason, it would seem that legislation which would restrict all private parties (or merely all corporations) receiving federal contracts or grants from engaging in independent political expenditures with their own non-governmental resources, may not necessarily advance the interest in the prevention of “corruption” of candidates or officeholders. As noted by the Supreme Court in Citizens United, the absence of any pre-arrangement or coordination with the candidate in the making of an “independent expenditure” by a private entity mitigates against a corrupting influence or quid pro quo agreement, and thus does not necessarily reach the concerns in so-called “pay to play” corruption schemes. 126
A governmental interest in attempting to “balance” competing voices in public policy or campaign debate, by limiting expression of one group over another, was found by the Supreme Court not to be a compelling interest to justify suppression of speech. The Supreme Court thus rejected the so-called “antidistortion” rationale that would attempt to limit the influence of monied interests over less well-funded persons or groups in a political campaign. 127
If the governmental purpose is not to prevent corruption of candidates or governmental processes, then such interest may be to protect government funds and programs. In such case the interests may be two-fold: one would be to prevent the use and diversion of federal government funds for private political or public policy advocacy activities which are not authorized by Congress; and the second would be to prevent the federal government “subsidizing” political advocacy activities of private parties by providing such private parties with federal dollars for other purposes.
Clearly the federal government need not “pay for,” nor directly “subsidize,” the political advocacy or lobbying of private entities.128 To that end, current federal provisions already
123 Buckley at 39-51 (independent expenditures); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (corporate expenditures on ballot measures); Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (non-stock, non-business corporations and electioneering communications); Citizens United v. Federal Election Commission, No. 08-205 (U.S. January 21, 2010) (corporate campaign “expenditures.”)
Buckley at 45, as quoted in Citizens United, slip op. at 40. Citizens United, slip op. at 42.
126 Any campaign “expenditure” which is coordinated or pre-arranged with a candidate is not an “independent expenditure” under federal law (11 C.F.R. § 100.16), but rather is to be treated as an in-kind “contribution” to a candidate (11 C.F.R. Part 109.20(b)), prohibited for corporations and contractors. It should be noted that a state Supreme Court recently overturned a state provision of law which had banned campaign contributions from all state contractors which received sole-source contracts, as an unconstitutionally over broad intrusion into First Amendment rights. Dallman v. Ritter, No. 09SA224 (Co. 2/ 22/2010).
Citizens United, slip op. at 35-40. Regan v. Taxation With Representation, 461 U.S. at 544-546; Cammarano v. United States, 358 U.S. 498 (1959).
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