League of Women Voters | Rochester Metropolitan Area, Rochester, NY
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Money in Politics

Part II: First Amendment Protections for Speakers and Activities in Political Campaigns

This set of questions is designed to determine the extent to which the First Amendment protections of free speech and freedom of the press should apply to different speakers or activities in the regulation of campaign finance.  Free speech and free press provide essentially the same protections to speakers, writers, publishers and advertising, whether or not they are part of the institutional press, and largely regardless of the medium.  Essentially, these protections extend to any conduct that is expressive.   Many of the options below would be found unconstitutional by the current Supreme Court, but we are seeking your League’s views, not those of the Court.  These are broad, overarching questions about spending to influence an election, including independent spending, contributions to candidates, broadcast news and other communication expenditures.   

First Amendment to the Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Passed by Congress September 25, 1789. Ratified December 15, 1791.

Understanding the current framework of campaign finances in the U.S. requires a basic understanding of the First Amendment which protects freedom of speech, the press, and association. The First Amendment guarantees citizens’ right to express and be exposed to a wide range of opinions and views.  It was intended to ensure a free exchange of ideas, whether spoken or written, even if the ideas are unpopular. It covers all types of expression (including non-verbal expressions such as sit-ins, art, and advertisements). The media (print, television, radio and the Internet) may distribute a wide range of facts, opinions, and pictures.  The amendment protects not only the speaker, but also the recipient of the information, i.e., the right to read, hear, see and obtain different points of view. The need for citizens in a democracy to hear full discussion of issues is also protected. Citizens United, as in decisions by a more liberal Court, the right to hear was included in the First Amendment reasoning.  Even if corporations should not have full free speech rights to spend unlimited sums in a candidate election, the right for the public to hear the views of corporations was constitutionally important.

Today’s communication environment differs dramatically from the one that existed at our nation’s founding and including the social media and blogs. Both the individual blogger and New York Times are protected by the First Amendment, even though the Times is a corporation. And when corporations own media outlets, are First Amendment protections changed? Should lines be drawn?

Limits on Free Speech

The right to free speech is not absolute.  The Supreme Court has ruled that the government may sometimes limit speech.

Speech is given the greatest level of protection and highest level of scrutiny by the Court. But even the content of speech can be limited if it is an incitement to violence or obscene and without any redeeming social value. Libel, slander, wrongful use of copyright material and fraudulent commercial speech are examples of speech that have crossed the boundary of protection.

Free speech is not always popular.  Protection of persons who make racist or sexist opinions can be misinterpreted as support of the statements. One federal judge stated that tolerating hateful speech is “the best protection against any Nazi-type regime in this country”.

Freedom of the Press

In addition to free speech, the First Amendment protects freedom of the press. This is important in the money and politics context because the media spend large sums of money in candidate elections and sometimes plays a decisive role through news coverage, editorial endorsements and other communications. This raises the question: if restrictions are needed to control campaign expenditures by individuals and corporations, shouldn’t the money expended by the media also be restricted?

Free speech and free press provide essentially the same protections to speakers, writers, publishers, internet communications and advertising, whether or not they are part of the institutional press.

Some argue that freedom of the press is a giant loophole in campaign finance regulations because existing contribution limits don’t apply. For example, a newspaper can spend unlimited amounts in candidate endorsements and repeated editorializing and doesn’t count as a contribution to the candidate and is not regulated in any way. Some suggest that slanted or biased news coverage can provide enormous benefit to a candidate, and, news coverage is clearly covered by freedom of the press. In an era with Fox News and MSNBC, spending big money through a media voice can have an important effect.

Under this logic, an individual with sufficient resources who wants to change the course of an election can purchase a news outlet or blog and carry his or her message through news coverage instead of making donations or large independent expenditures in favor of a candidate. Others argue that restrictions on spending and contributions can be limited in the free speech area while still protecting freedom of the press. They suggest that the courts will sort out the differences and provide different levels of protection to each. Courts have so far resisted entering this thicket.

Political Speech and Money

While some maintain that “money is speech” and argue that limitations on money in politics unconstitutionally limit free speech, others ridicule the notion that money and speech are synonymous – that a billion-dollar corporation spending unlimited amounts in political campaigns can be the same as a single person speaking at a public meeting.

In our media-saturated society, it is clearly necessary to spend money to get one’s views to the public for consideration.  Thus government regulation of what a citizen running for political office can spend implicates the First Amendment in some fundamental way.  On the other hand, it does seem strange to say that a special interest group can spend unlimited money buying a megaphone that drowns out the speech of others.

Should there be limits on the quantity of speech? Campaign finance limits (that is, the actual direct expenditures by a candidate’s campaign or an independent expenditure campaign) are prohibited, the Buckley Court said, because they “necessarily reduce the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached”. The concept that “more money allows for more speech” might mean that more people hear the ideas or it could be that some people just hear the same idea over and over.  Another argument against this is that large quantities of some speech may interfere or not allow for the speech of others. How much money is needed to provide ample opportunity for an idea to be heard?

Click here for more information about the First Amendment.

Click here for The Debate: Can Government Regulate Money in Politics?

Click here for Hard, Soft and Dark Money

Click here for more information about Independent Expenditures

Click here for The New Soft Money by Daniel P. Tokaji & Renata E. B. Strause (e-book)

All information on the Money in Politics pages has been taken from materials provided by LWVUS.

Remember when thinking about your answers to the Consensus questions, we should respond "without regard for the Supreme Court's current views on the First Amendment," or its current narrow definition of corruption.

Part II Question 1. Evaluate whether the following activities are types of political corruption: (Please respond to each item in Question 1.)

a.  Individual citizens, including wealthy individuals like George Soros and the Koch Brothers.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

b. Political Action Committees, sponsored by an organization, such as the League of Conservation Voters, Chevron, the American Bankers Association, and the International Brotherhood of Electrical Workers (IBEW), whose campaign spending comes from contributions by individuals associated with the sponsoring organization, such as employees, stockholders, members and volunteers.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

c.  For-profit organizations, like Exxon, Ben and Jerry’s, General Motors, and Starbucks, from their corporate treasury funds.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

d.  Trade associations, like the U.S. Chamber of Commerce, the American Wind Energy Association, and the American Petroleum Institute, from the association’s general treasury funds.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

e.  Labor unions, like the United Autoworkers and Service Employees International, from the union’s general treasury funds.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

f.  Non-profit organizations, like the Sierra Club, Wisconsin Right to Life, Coalition to Stop Gun Violence, American Crossroads, and Priorities USA, from the organization’s general treasury funds.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

g.  Non-partisan voter registration and GOTV (get out the vote) organizations and activities, like the LWV and Nonprofit Vote.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

h.  Political parties, like the Republicans, Libertarians, and Democrats.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

i.  Candidates for public office spending money the candidate has raised from contributors.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

j.  Candidates for public office spending their own money.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

Part II Question 2. The press plays a major role in candidate elections through editorial endorsements, news coverage, and other communications directly to the public that are often important to the outcome.  Should such spending to influence an election by any of the following be limited?(Please respond to each item in Question 2.)

a.  Newspapers, like the New York Times and the Wall Street Journal.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

b.   Television and other electronic media, like Fox News, CNN. MSNBC and CBS.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

c.   Internet communications, like Huffington Post, Breitbart, Daily Kos, and individual bloggers.
☐Spending banned  ☐Some spending limits  ☐Unlimited spending
☐ No consensus

Continue on to Part III Questions 1 and 2 and background material.
Return to Money in Politics home page.

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