Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues
status and any burden on their speech could be avoided by restructuring their activities.166 It seems difficult to fully extend a similar rationale to a tax on corporate campaign expenditures.
Public Financing For Congressional Campaigns167
Proposals to enact public financing for congressional candidate campaigns have been introduced in the 111th Congress.168 Public financing programs are generally voluntary and traditionally offer grants or matching funds in exchange for candidates agreeing to limit spending. It appears that legislation establishing such public financing programs, requiring compliance with spending limits, would pass constitutional muster on the condition that they are voluntary.
In the 1976 landmark case of Buckley v. Valeo,169 the Supreme Court held that spending limitations violate the First Amendment because they impose direct, substantial restraints on the quantity of political speech. The Court found that expenditure limitations fail to serve any substantial government interest in stemming the reality of corruption or the appearance thereof, and that they heavily burden political expression.170 Reaffirming Buckle , in Citizens United v. FEC, the Court reiterated this determination finding that truly independent expenditures, with no prearrangement and coordination with a candidate, not only lessen the value of the expenditure to the candidate, but also mitigate any danger that expenditures will be made as a quid pro quo for
improper commitments from the candidate.171 they are voluntary.
As a result, spending limits may only be imposed if
In Buckle , the Supreme Court upheld the constitutionality of the voluntary public financing program for presidential elections.172 The Court concluded that presidential public financing was within the constitutional powers of Congress to reform the electoral process, and that public financing provisions did not violate any First Amendment rights by abridging, restricting, or censoring speech, expression, and association, but rather encouraged public discussion and participation in the electoral process. According to the Court:
Congress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size ofthe contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding. 173
166 See, e.g., American Soc’y of Ass’n Execs. v. United States, 195 F.3d 47, 50 (D.C. Cir. 1999) (upholding the § 6033 proxy tax regime, finding that “[a] § 501(c)(6) association can avoid any alleged burden on its First Amendment rights by splitting itself into two § 501(c)(6) organizations—one that engages exclusively in lobbying on behalf of its members and one that completely refrains from lobbying.”).
This portion of the report discussing public financing was written by L. Paige Whitaker.
168 For further discussion of public financing, see CRS Report RL33814, Public Financing of Congressional Campaigns: Overview and Analysis, by R. Sam Garrett.
169 424 U.S. 1 (1976). 170 Id. at 55. Citizens United, slip op. at 41 (quoting Buckley at 47). 171
172 For further discussion of presidential public financing, see CRS Report RL34534, Public Financing of Presidential Campaigns: Overview and Analysis, by R. Sam Garrett.
Buckley, 424 U.S. at 57 n. 55.
Congressional Research Service