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The Lonely Death of Public Campaign Financing The Lonely Death of Public Campaign Financing
Richard M. Esenberg
Marquette University Law School
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Richard M. Esenberg, The Lonely Death of Public Campaign Financing, Harvard Journal of Law &
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Harv. J.L. & Pub. Pol’y 283 (2010))
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THELONELYDEATHOFPUBLICCAMPAIGN
FINANCING
RICHARDM.ESENBERG
*
I
NTRODUCTION ............................................................284
I. SPENDITYOURSELF:THEDISTINCTIONBETWEEN
EXPENDITURESANDCONTRIBUTIONS..................290
A. OriginoftheDistinction...............................290
B. PersistenceoftheDistinction.......................293
C. TheNatureofCorruption:Setting
ExpendituresandContributionsApart .....297
II. WHACKINGTHEMOLE:EXPENDITURES
S
URVIVE..................................................................300
A. AnAttempttoLimitIndependent
Expenditures ..................................................300
B. TheProtectionofIssueAdvocacy...............303
1. TheContinuedViabilityof
IssueAds..................................................309
2. WRTLIISuggestsaNarrowView
oftheCorruptionInterest......................316
III. THEPLAYINGFIELDIS NOTFLAT:WILLPUBLIC
FINANCINGFADEAWAY?.....................................318
A. Davisv.FEC:HelpingOneSide
BurdenstheOther ......................................... 318
B. TheImplicationsofDavisandWRTLII......321
IV.LETTINGTHEMOLESGO:WRTLIIAND
D
AVISASCAUSEFORRELIEF.................................328
CONCLUSION................................................................332
*VisitingAssistantProfessorofLaw,MarquetteUniversityLawSchool.Iwant
to thank Sue Kirsling and Debbie Moore for their assistance in preparing the
manuscript, Nathan Pethrashek and Matthew Fernholz for their research assis‐
tance,andmycolleaguesatMarquetteUniversityLawSchoolfortheircomments.
284 HarvardJournalofLaw&PublicPolicy [Vol.33
I
NTRODUCTION
It may be a cliché to observe that campaign finance reform
has proved conclusively that the road to perdition is paved
withgoodintentionsandthatunforeseenconsequencesplague
the human condition.
1
Perhaps all areas of the law are, to a
greater or lesser degree, evidence of these sad truths.
2
Never‐
theless, our continuing quest for “clean” elections and cosmic
justicein therealmofcampaign financebringstomindAlbert
Einstein’s reflections on insanity: “doing the same thing over
andoveragainandexpecting differentresults.”Remarkingon
the inability of years—actually decades—of reform to wring
“excess” money out
of the process, Chief Justice John Roberts
declaredthat“[e]noughisenough.”
3
Perhapsheisright.
Much of the problem with reform arises from constitutional
stumblingblocks.AlthoughtheSupremeCourt’sguidancehas
been rather fluid,
4
the core of the problem has been the idea
thatthereisaconstitutionaldistinctionbetweentheregulation
of expenditures and contributions.
5
Restrictions on the latter
areoftenclaimedtoservemoredirectlytheinterestinavoiding
the apparent or actual quid pro quo corruption that the Court
has sometimes,
6
but not always,
7
cl aimed is the only justifica‐
1.SeeWilliam P.Marshall,The LastBest ChanceForCampaignFinanceReform,94
NW.U.L.REV.335,342–45(2000)(listingexamplesofunintendedconsequencesof
reform: a decline in grassroots campaigning, the rise of “soft money” for “party
building,”issueads,independentads,andasubstantialincreaseinthe timethat
mustbedevotedtofundraisingandbundling).
2.See, e.g., Margaret Howard, The Law of Unintended
Consequences, 31 S. ILL. U.
L.J. 451, 452 (2007) (in the context of amendments to bankruptcy law); see also
Nat’lPaint&CoatingsAss’nv.CityofChicago,45F.3d1124,1132(7thCir.1995)
(“Time and again social science research teaches that laws fail to achieve their
goals—that the laws provoke costly adjustments that make
the majority worse
off.”).
3.FECv.Wis.RighttoLife,Inc.(WRTLII),551U.S.449,478(2007).
4.SeeRichardL.Hasen,JusticeSouter:CampaignFinanceLaw’sEmergingEgalitar‐
ian,1
ALB. GOV’TL.R EV. 169,172 (2008)(“[T]heCourt’sjurisprudencehasswung
likeapendulumbetweenperiodsofCourtskepticismofcampaignfinanceregula‐
tionandCourtdeferencetocongressionalandstatejudgmentsabouttheneedfor
suchregulation.”).
5.Davis v. FEC, 128 S. Ct. 2759, 2771–72 (2008); WRTL II, 551 U.S. at 478–79;
Buckley
v.Valeo,424U.S.1,20–23(1976).
6.SeeDavis,128S.Ct.at2773(levelingopportunitiesforcandidatesofdifferent
wealthis nota legitimategovernmentobjective); WRTLII,551U.S.at479–80(in‐
terest in combating “corrosive and distorting effects of immense aggregations of
wealth” does not extend
beyond campaign speech); FEC v. Nat’l Conservative
No.1] PublicCampaignFinancing 285
tionforregulation.TheCourthassaidrestrictionoftheformer
moresubstantially impairs FirstAmendment valuesbecause it
directlylimitsthemessagechosenbythe speakerandhisabil‐
itytodisseminateit.
8
By permitting virtually no restrictions on expenditures by a
candidate
9
andrelativelyrobustregulationofcontributionstoa
candidate,
10
the Court’s interpretationof the First Amendment
has created the modern phenomenon of the self‐funded mil‐
lionaire politician for whom public office is a prerogative of
familywealthoranicecodatoasuccessfulbusinesscareer.
11
In
1972, General Motors heir Stewart Mott financed an experi‐
encedpublicservant,GeorgeMcGovern.
12
In1992,H.RossPe‐
rotandSteveForbesranforpublicofficethemselves.
There has been more room for regu l a t io n of expenditures
onbeha lf ofacandidate,
13
butstatutory interpretation,
14
regu‐
Political Action Comm., 470 U.S. 480, 496–97 (1985) (“[P]reventing corruption or
theappearanceofcorruptionaretheonlylegitimateandcompellinggovernment
interests thus far identified for restricting campaign finances.”);Buckley, 424 U.S.
at48–49 (the interest in equalizingthefinancial resources of candidates does not
justifyrestrictingcampaignexpenditures).
7.McConnell v. FEC, 540 U.S.93,143(2003);Austinv. Mich. State Chamber of
Commerce,494U.S.652,659(1990).
8.Buckley,424U.S.at19.
9.See Buckley, 424 U.S. at 52 (striking down campaign andindividualexpendi‐
turelimits).
10.SeeFECv.Beaumont,539U.S. 146,
159–60(2003)(upholdingrestrictionson
campaign contributions made by anadvocacycorporation);Nixon v. Shrink Mo.
Gov’t Political Action Comm., 528 U.S. 377, 381–82 (2000) (upholding state cam‐
paigncontribution limits);FECv.Nat’lRighttoWorkComm.,459U.S.197,209–
10 (1982) (upholding restrictions on solicitations by a corporate
Political Action
Committee(PAC));Buckley,424U.S.at29(upholdinglimitationsontheamountof
contributions).ButseeRandallv.Sorrell,548U.S.230,236–37(2006)(contribution
limitssettoolowareinsufficientlytailoredtosatisfytheFirstAmendment).
11.See Charles Krauthammer, The U.S. House Of Lords?, W
ASH. POST, Dec. 19,
2008,atA35.
12.DouglasMartin,StewartR.Mott,LongtimePatronofLiberalandOffbeatCauses,
Diesat70,N.Y.
TIMES,June14,2008,atB6 (GM heir heavily bankrolledthe cam‐
paignsofEugeneMcCarthyandGeorgeMcGovern).Mottlateropposedeffortsat
campaignfinanceregulation.Id.
13.SeeMcConnellv. FEC, 540 U.S. 93,206–07 (2003)(upholding blackoutpe‐
riod on independen t ly financed ads that are the “functional equivalent”
of ex‐
press advocacy for a candidate); Austin v. Mich. State Chamber of Commerce,
494 U.S. 652, 668–69 (1 99 0) (upholding restriction on corporate expenditures
suppo r t ing a candidate); First Nat’l. Bank of Boston v. Bellot ti, 435 U.S. 765,
788–92 (1978) (striking down restriction on corporate expenditures on refer e n ‐
dum ca mpaig n) ; Buckley,
424U.S. at 38, 47 n.53 (upholding re s tr ic tion on coo r‐
dinatedindepend en texpenditures).
286 HarvardJournalofLaw&PublicPolicy [Vol.33
latoryomissions,
15
andconstitutionallimitations
16
haveleftroom
for a brisk business in independent expenditures that, rather
thanpromoteafavoredcandidate,criticizethepositionsof his
opponent. This structure has given us the current phenome ‐
non of sepia‐tone d ad ve rtis em en ts urging us to call Senator
Foghorn and tell him to stopsta rvin g children
17
and destroy‐
ingtheRepublic.Althoughnegativecampaigningisnotacur‐
rent phenomenon or the product of regulation,
18
the modern
independent ad—attacking in the guise of attempting to per‐
suade—iscertainlyencouragedbyregulationandthedesireto
avoiditslimitations.
19
Regulatoryresponseshaveensued,butmoneyhasprovento
bedifficulttotame.Whatcannotbedonethroughcontrib ution
can be done with expenditure. Dollars that can no longer be
given to a candidate are given to a political party.Money that
cannotbecontributedtoapartyisgiven
toanindependentor‐
14.SeeFECv.Mass.CitizensforLife,Inc.(MCFL),479U.S.238,249(1986)(adopt‐
ingsamelimitingconstructionforlimitationsoncorporateandunionexpenditures);
Buckley, 424 U.S. at 43–44 (interpreting limitation on independent expenditures to
messagesexpresslyadvocatingtheelectionordefeatofacandidate).
15.
One huge “loophole” has been the freedom of political organizations that
qualify under 26 U.S.C. §527, that do not qualify as political committees, to en‐
gageinsubstantialandlightlyregulatedindependentexpenditures.
16.See,e.g.,FEC v. Wis. RighttoLife,Inc.(WRTLII),551 U.S. 449 (2007)
(strik‐
ing down application of “blackout period” on independent expenditures for
“genuine issue ads”); MCFL, 479 U.S. at 263–64 (striking down restrictions on
express advocacy by an incorporated advocacy organization that did not accept
contributionsfrom“forprofit”corporations);Bellotti,435 U.S. at 776–77(striking
downrestrictiononcorporate
expendituresonreferendumcampaign).
17.Although they were apparently run by regulated political action commit‐
tees, during the 2008 presidential campaign, for example, Brave New PAC and
DemocracyforAmericaranblackandwhitephotographsofapost‐operativeJohn
McCain spliced with interviews of doctors discussing the recurrence of mela
‐
noma. Brave New PAC, “John McCain is 72. He’s had cancer 4 times,”
http://www.youtube.com/watch?v=DHvJPGnkQxE (last visited Oct. 14, 2009). A
group called OurCountryDeservesBetter PAC ran an ad featuring mug shots of
WeatherUndergroundleaderBillAyersandclipsofReverendJeremiahWright’s
lesstemperate sermons calling on SenatorObamaand
“hisfriends”to “keep the
change.” OurCountryDeservesBetter PAC, “Obama’s Ties to Ayers, Rev. Wright
and Kilpatrick,” http://www.youtube.com/watch?v=eDcQUcAjoeI (last visited
Oct.14,2009).
18.SeeD
AVIDMARK,GOINGDIRTY:THEARTOFNEGATIVECAMPAIGNING(2006);
KERWINC.SWINT,MUDSLINGERS:THETOP25NEGATIVEPOLITICALCAMPAIGNSOF
ALLTIME(2006).
19.SeeNixonv.ShrinkMo.Gov’tPAC,528U.S.377,406–07(2000)(Kennedy,J.,
dissenting)(asserting thatBuckley“has‘given’us covertspeech”that “mocksthe
FirstAmendment”).
No.1] PublicCampaignFinancing 287
ganization. What cannot be done by a political committee is
done by a 527 or 501(c)(4) organization. Dollars that can no
longerbespentinonewaysimplyflowtoanewuse.
20
Atleast
one commentator
21
has likened campaign finance reform to a
gameof“Whac‐A‐Mole.”
22
Forthisreason, thewhitewhaleformanyCa pta in Aha b s of
thecampaignfinanceref o r m movementhasoftenbeen“effec‐
tive public financing.”
23
The current system of public financ‐
ing for presidential elections has become largely irrelevant,
24
as the fundraising prowess of George W. Bush and Bara ck
Obama far outstripped the amount of public funds available.
Giventheeffectivenessofbundling
25
andof“microdonations”
26
raised over the Internet, acceptingpublic funding (and its at‐
tendant limitations on campaign expe nd itures) would leave
anypubliclyfundedpresidentialcam pa i gn atamarkedfinan‐
cialdisadvantage.
27
20.SeeMarshall,supranote1,at342–45;seealsoSamuelIssacharoff&PamelaS.
Karlan,TheHydraulicsofCampaignFinanceReform,77T
EX.L.REV.1705,1713(1999)
(“Money,likewater,willseekitsownlevel.”).
21.Robert P. Beard, Whacking the Political Money “Mole” Without Whacking
Speech: Accounting for Congressional Self‐Dealing in Campaign Finance Reform After
WisconsinRighttoLife,2008U.
ILL.L.REV.731,731.
22.Whac‐A‐Moleisanarcadegamedevelopedintheearlyseventiesinwhicha
player accumulates points by striking moles—who periodically pop up from a
numberofholes—with amallet.Onecanapparently order“themed”gamespro‐
viding players with an opportunity to strike emerging figures
of the owner’s
choice. See, e.g., Bob’s Space Racers, http://www.bobsspaceracers.com/frames/in‐
dex/htm(lastvisitedOct.14,2009).TheAuthorisunawareofwhetheracampaign
finance–themedgame—populatedwithPACs,527s,501(c)(4)s,andfamouslyself‐
financed presidential contender H. Ross Perot—has ever been made, but he
wouldlovetoseeone.
23.
See,e.g.,PublicCampaignActionFund,http://www.publiccampaign.org.
24.Richard L. Hasen, More Supply, More Demand: The Changing Nature of
Campaign Financing for Presidential Primary Candidates 1 (Dec. 2008) (unpub‐
lishedmanuscript),availableathttp://ssrn.com/abstract=1267312.
25.”Bundling” is a technique in which a candidate’s supporters solicit and
“bundle”contributionsfrom friends
andassociates.SeeMarshall,supranote 1,at
344.Themaximumindividualcontributionwasincreasedfrom$1,000to$2,000in
2002 and indexed for inflation. 2 U.S.C. §441(a). The current limit, according to
the FEC’s website, is $2,400. Federal Election Commission, Quick Answers–
General Questions, http://www.fec.gov/ans/answers_general.shtml (last visited
Nov.23,
2009).Thehigherlimithasraisedtheeffectivenessofbundling.
26.Microdonationsaregenerallydescribedas thosebelow$200,oftenraisedin
incrementsovertheInternet.SeeHasen,supranote24,at15–16.
27.Id. at 3–5. Even candidates who initially pledge to accept public funding
havefounditin
theirbestinteresttoabandonthepledge.SeeShailaghMurray&
288 HarvardJournalofLaw&PublicPolicy [Vol.33
But the dream persists. Prominent organizations call for re‐
form of the presidential system
28
and extension of public fi‐
nancingtolegislativeraces.
29
Anumberofstatesstillemploy—
or are currently seeking to adopt or reform—public financing
of elections.
30
Often promoted under the rubric of “clean” or
“fair” elections, these systems generally involve the provision
ofpublicfundstocandidateswhohaveraisedsomeminimum
amount or aggregate number of private contributions.
31
In re‐
turnforpublicfunds,acandidateagreestorestrictionsonfur‐
ther private contributions and expenditures. The idea is to re‐
duce the role of “Big Money”—or, for that matter, money in
general—inelections.
Recognizing the constitutional limitations on reform, state
public funding laws frequently provide “relief”—referred to
by names such as “reserve funds” and “fair fight funds”—to
publicly financed candidates running against a self‐financed
or privately financed candidate
32
whose spending has ex‐
ceeded a trigger amount and to candidates who face inde‐
Perry Ba con Jr., Ob ama to Reject Pu blic Funds for Election, WASH. POST, Jun e 20,
2008,atA1.JohnMcCainalsoannounced th a thewo uldacceptpub licfund sfor
the primarie s, only to decline them lat er . Andy Sullivan, McCain says doesn’t
need publiccampaign cash, R
EUTERS, Feb. 12, 2008, http://www.reuters.com/article/
politicsNews/idUSN1118204820080212?pageNumber=1&virtualBrandChannel=0.
28.For example, Common Cause is working with the Presidential Public Fi‐
nancing Reform Project, a coalition of reform groups including the League of
WomenVoters,Public Citizens, Public Campaign, U.S. PIRG, and Democracy21
attempting to reboot the currentsystem.See Common Cause,
PresidentialPublic
Financi ng, http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=4773833
(lastvisitedOct.14,2009).
29.AjointreportoftheBrennanCenterforJustice,CommonCause,Democracy
Matters,PublicCitizen,PublicCampaign,andU.S.PIRGcallsforpublicfinancing
joined with “fair fight” funds to aid publicly financed candidates facing non–
publicoppositionspendinginexcess
ofcertainlevels.BRENNANCENTERFOR JUS‐
TICEETAL
.,BREAKINGFREEWITHFAIRELECTIONS:ANEWDECLARATIONOFINDE‐
PENDENCE
FOR CONGRESS 6 (2007), available at http://www.brennancenter.org/
content/resource/breaking_free_with_fair_elections/.
30.A summary of state public financing systems can be found on Common
Cause’s website, http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&
b=4773825(lastvisitedOct.14,2009).
31.For example, North Carolina’s statute providing for the public fundin g of
judicial elections states that its purpose is “to protect the constitutional rights
of
votersand candidates from the detrimental effectsofincreasingly large amounts
ofmoney beingraised and spenttoinfluencetheoutcome ofelections....” N.C.
GEN.STAT.§163‐278.61(2008).
32.Inotherwords,acandidatewhooptsoutofpublicfinancing.
No.1] PublicCampaignFinancing 289
pendent expenditures directed against them.
33
This relief may
include permitting the “disadvantaged” candidate to raise
more money, providing matching state funds, or some combi‐
nationofthetwo.
ThisArticlearguesthatthegameofreform,havingbeenthe
victimof two majorcampaign financedecisionsof theRoberts
Court,is over.TheSupreme Court’s
decision in Davisv.FEC
34
will prove to be fatal to most, if not all, asymmetrical public
financing schemes, and the Court’s treatment of expenditures
forissue advocacyannounced inFEC v. Wisconsin Right to Life
(WRTL II)
35
will leave most forms of independent expenditures
beyondeffectivelimitation.Thecombinationmayrenderpublic
financing systems—at least as a device to reduce substantially
theinfluenceofprivatemoneyonelections—effectivelyfutile.
Part I of this Article briefly reviews the evolution of the dis‐
tinctionbetweenexpendituresandcontributionsand
thevarious
rationales the Court has consi dered as potential justificationfor
regulation. Part II considers the degree of constitutional protec‐
tion now apparently enjoyed by independent expenditures for
issue advocacy after the Court’s decision in WRTL II. Part III
addressestheimpactofDavisontheattemptstorestrictor
blunt
the impact of independent expenditures through asymmetrical
public financing systems. Most such systems cannot be recon‐
ciled with Davis’s suggest ion that measures designed to
“counter” the constitutionally protected speech of one side of a
campaignareunconstitutionalburdensuponthatspeech.
Part IV argues that this outcome is correct
and suggests, in
Chief Justice Roberts’s words, that “enough is enough.” Al‐
though regulation to avoid actual or potential corruption re‐
mainsessential, the Court’s recent decisionsquite properly re‐
ject the restriction of speech in pursuit of “barometric”
equality,that is, thenotion thatcontending candidates andin‐
terests
ought not to be able to deploy financial resources that
are not proportionate to their public support ex ante. Rather
than trust elected officials to superintend the electoral process
inpursuit ofsome“pure”manifestationofdemocracy,itisbet‐
terto allow broad publicparticipation. We should understand
33.See, e.g., ARIZ. REV. STAT. ANN. §16‐901.01 (2008); N.C. GEN. STAT. §163‐
278.67(2008).
34.128S.Ct.2759,2775(2008).
35.551U.S.449,457(2007).
290 HarvardJournalofLaw&PublicPolicy [Vol.33
that contending factions enjoy different electoral advantages
andthatallowingthemtoengageinrelativelyunfetteredcom‐
petitionispreferableto managementofthepoliticalprocessin
a futile—and unavoidably self‐interested—effort to eliminate
unfair advantages. Happily, technological advances may have
weakened the need for reform and validated the Madisonian
approachtotheinfluenceof“special”interestsadvocatedhere.
I. S
PENDITYOURSELF:THEDISTINCTIONBETWEEN
EXPENDITURESANDCONTRIBUTIONS
A. OriginoftheDistinction
Our proble m begins with the seminal case of Buckley v.
Valeo,
36
which considered a constitutional challenge to certain
aspects of comprehensive federal campaign finance reform
passed in the wake of Watergate. Buckley considered the 1974
amendments to the Federal Election Campaign Act of 1971
(FECA).
37
FECA contained a number of provisions, including
limitationsoncontributionstoacandidateandexpendituresby
oronbehalfofacampaign.
Buckley is a lengthy and complex decision addressing multi‐
ple statutory provisions. The judgment of the Court was ex‐
pressedinapercuriamopinion,partsofwhich
werejoinedby
different groups of Justices. Full explication of the case is be‐
yond the scope—and need—of this Article.
38
It is most impor‐
tanttonotethattheCourtupheldcertainlimitationsoncontri‐
butions.
39
Alimitationupontheamountthatcanbecontributed
to a candidate “entails only a marginal restriction” upon the
contributor’s expressive rights because a contribution commu‐
nicatesonlygeneralsupportforacandidateandhisviewsand
36.424U.S.1(1976).
37.Id.at6.
38.Buckleyupheld public financing,disclosurerequirements,andcapsonindi‐
vidualcontributionstocampaigns.Itstruckdownlimitsonexpendituresbycan‐
didatesontheirownbehalf,limitsfortotalexpendituresbyacampaign, capson
independent expenditures, and certain provisions
constituting the Federal Elec‐
tionCommission.Seeid.at143.
39.FECA prohibited individuals from contributing more than $25,000 in a sin‐
gleyearormorethan$1,000toasinglecandidate.Id.at13.
No.1] PublicCampaignFinancing 291
not “the underlying basis of that support.”
40
Nor, the Court
concludedinBuckley,doesthequantityofcommunication“in‐
crease perceptibly with the size of the contribution.”
41
Contri‐
butionlimits,moreover,morereadilyservethestateinterestin
limiting “the actuality and appearance of corruption resulting
fromlargeindividualfinancialcontributions.”
42
FECA also placed limits on expenditures “relative to a
clearlyidentifiedcandidate.”
43
Beforepassingontheirconstitu‐
tional validity, the per curiam opinion, in an effort to avoid
problems of vagueness and overbreadth, construed this lan‐
guagetoapply onlyto “expendituresforcommunications that
in express terms advocate the election or defeat of a clearly
identifiedcandidateforfederaloffice.”
44
TheCourtexplained:
[T]he distinction between discussion of issues and candi‐
dates and advocacy of election or defeat of candidates may
oftendissolveinpracticalapplication.Candidates,especially
incumbents, are intimately tied to public issues involving
legislativeproposalsandgovernmentalactions.Notonlydo
candidatescampaignonthe basisoftheir positionson vari
‐
ouspublicissues,butcampaignsthemselvesgenerateissues
ofpublicinterest.
45
In drawing this distinction, the Court said that determining
what constitutes “express advocacy” would turn on a finding
of what came to be called “magic” words such as “vote for,”
“elect,”or“support.”
46
The Court upheld FECA’s reporting and disclosure require‐
ments with respect to its narrowed definition of “expendi‐
tures”—those expressly advocating the election or defeat of a
clearlyidentifiedcandidate.Itstruckdown,however,acapon
the amount of such expenditures. In doing so, it argued that
limitationson expenditures
dorestrict comm unication (spend‐
ingmoneytodisseminateaparticularmessageofthespeaker’s
40.Id. at 20–21. A subsequent opinion of the Court characterizes contributions
as“speechbyproxy.”Cal.Med.Ass’n v.FEC,453U.S.182,196(1981)(Marshall,
J.,pluralityopinion).
41.Buckley,424U.S.at21.
42.Id.at26–27.
43.Id.at1.
44.Id.at44.
45.Id.
at42.
46.Id.at44n.52.
292 HarvardJournalofLaw&PublicPolicy [Vol.33
choosing does communicate more by spending more) in away
that contribution limits do not. The Court observed that “[a]
restriction on the amount of money a person or group can
spendonpoliticalcommunicationduringacampaignnecessar‐
ilyreduces
thequantityofexpression byrestrictingthenumber
ofissuesdiscussed,thedepthoftheirexploration,andthesize
oftheaudiencereached.”
47
Moreover, independent expenditures, in the Court’s view,
didnot“appeartoposedangersofrealorapparentcorruption
comparable to those identified with large campaign contribu‐
tions.”
48
Thisreducedinterestinpreventingactualorapparent
corruption was insufficient to justify the more substantialbur‐
denonexpressionentailedinexpenditurelimits.
49
Anybroader
interest in equalizing the interests of competing interests was
“whollyforeigntotheFirstAmendment.”
50
Buckley’sdistinctionbetween expendituresandcontributions
has been criticized by opponents and advocates of regulation
alike. Justice Thomas, for example, has argued that it is based
on a false distinction between actual and proxy speech.
51
Whetheronechoosestoparticipatebyexpenditureorcontribu‐
tion,there is “usually some go‐betweenthatfacilitates thedis‐
seminationofthespender’smessage—forinstance,anadvertis‐
ing agency or a television station” such that calling a
contribution“‘speechbyproxy’...doeslittletodifferentiateit
from an expenditure.”
52
Nor is it correct in Justice Thomas’s
viewtostatethatacontributiontoacandidatedoesnotconsti‐
tute communication by the donor who, in contributing, en‐
dorses and facilitates a message(that of his candidate)that he
prefers.
53
A larger contribution communicates “more” in the
same way as a larger expenditure.
54
Buckley’s distinction be‐
47.Id.at19.
48.Id.at46.
49.Id. at 44. Ironically, given the Court’s own limiting construction, the Court
also noted that a limitation on independent expenditures would be underinclu‐
sive because expenditures for communications that avoided express advocacy
wereleftunregulated.Seeid.at45.
50.Id.at
48–49.
51.Nixonv.ShrinkMo.Gov’tPAC.,528U.S.377,413(2000) (Thomas,J.,dissenting).
52.Id. (quoting Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604,
638–39(1996)(Thomas,J.,concurringinjudgmentanddissentinginpart)).
53.Id.at414–15.
54.Id.at419.
No.1] PublicCampaignFinancing 293
tweenexpendituresandcontrib utions,inhisview,“ignoresthe
distinct role of candidate organizations as a means of individ‐
ualparticipationintheNation’scivicdialogue.”
55
JusticeTho maswouldleavelittleroomforregulation. Justice
Stevens, on the other hand, believes that expenditure limits
should be allowed just as limits on contributi ons. Expenditure
limits simply enable speech and should be analyzed as time,
place,andmannerrestrictions.
56
Inhisview:
Afterall,orderlydebateisalwaysmoreenlightening thana
shouting match that awards points on the basis of decibels
rather than reasons. Quantity limitations are commonplace
inanynumberofothercontextsinwhichhigh‐valuespeech
occurs. Litigants inthis Court pressing issues of the utmost
importance to the
Nation are allowed only a fixed time for
oraldebateandamaximumnumberofpagesforwrittenar‐
gument.Aslistenersandasreaders,judgesneedtimetore‐
flectonthemeritsofanissue;repetitiousargumentsaredis‐
favored and are usually especially unpersuasive. Indeed,
expertsin
theartofadvocacyagreethat “lawyersgoonfor
toolong,andwhentheydoitdoesn’thelptheircase.”
57
Justice Stevens continues, “Congress is entitled to make the
judgment that voters deserve the same courtesy and the same
opportunity to reflect as judges; flooding the airwaves with
slogans and sound‐bites may well do more to obscure the is‐
suesthantoenlightenlisteners.”
58
Inhisview,“thenotionthat
ruleslimitingthequantityofspeecharejustasoffensivetothe
First Amendment as rules limiting the content of speech is
plainlyincorrect.”
59
B. PersistenceoftheDistinction
Nevertheless,the distinctionbetween expenditures andcon‐
tributions has proven relatively robust.
60
In First National Bank
55.Id.at417.
56.Davisv.FEC,128S.Ct.2759,2778(2008).
57.Id.at2779(citationomitted).
58.Id.
59.Id.
60.Academic criticism has also been robust. See, e.g., David Schultz, Revisiting
Buckley v. Valeo: Eviscerating the Line Between Candidate Contributions and Inde‐
pendentExpenditures,
14J.L.&POL.33,35–36(1998)(arguingforeliminationofthe
distinction).
294 HarvardJournalofLaw&PublicPolicy [Vol.33
ofBostonv.Bellotti,
61
forexample,theCourtstruckdownaMas‐
sachusetts statute prohibiting corporations from spending on
communications relating to referenda other than those that
“materially affect [the corporation’s] business, property, or as‐
sets.”
62
The Court found no support for the proposition that
otherwise protected speech loses its protection because its
sourceisacorporation.
63
Nonetheless,corporaterestrictionson
contributions could still be valid. The Court in Bellotti distin‐
guished restrictions on corporate contributions as attempts to
prevent apparent or actual corruption, an interest not pre‐
sented by the referenda restriction.
64
And, as we will see, re‐
strictionsoncorporatecontributionshavebeenupheld.
65
In FEC v. National Conservative Political Action Committee
(NCPAC),
66
the Court struck down a restriction on expendi‐
turesbyindependent entities tofurtherthe election ofapresi‐
dentialcandidatewhohadacceptedpublicfinancing.
67
InColo ‐
radoRepublicanFederalCampaignCommitteev.FEC(Colorado I),
68
itstruckdownlimitson politicalpartyexpendituresforagen‐
eralelectioncampaignforCongress.
69
The Court has, however, permitted restrictions on expendi‐
turesthat constitute“expressadvocacy”in Buckley’sterms—at
least when undertaken by a corporation. In FEC v. Massachu‐
setts Citizens for Life (MCFL),
70
the Court considered whether
section 441b’s prohibition against corporate use of treasury
funds“inconnection”withafederalelection
71
couldbeconsti‐
tutionally applied to the activities of MCFL.
72
MCFL was a
nonprofitcorporationth atdidnotacceptdonationsfrombusi‐
ness corporations, but raised money from its individual mem‐
bers and its activities such as raffles, garage and bake sales,
61.435U.S.765(1978).
62.Id.at767.
63.Id.at784.
64.Id.at787–88&n.26.
65.Seeinfratextaccompanyingnotes86–95.
66.470U.S.480(1985).
67.Id.at482–83.
68.518U.S.604(1996).
69.Id.at608.
70.479U.S.238(1986).
71.2
U.S.C.§441b(2006).
72.MCFL,479U.S.at241.
No.1] PublicCampaignFinancing 295
picnics, and dances.
73
The Court applied the same narrowing
construction tosection 441b as it hadto the prohibitions of in‐
dependent expenditures in Buckley, holding that it prohibited
onlythoseexpendituresthatconstitute“expressadvocacy.”
74
Although MCFL’s activities did constitute express advo‐
cacy,
75
amajorityoftheCourtfoundthat,asappliedtoMCFL,
section 441bunconstitutionallyburdened MCFL’s right offree
expression.
76
Althoughsection441bcouldbejustifiedasalimit
on the capacity of corporate entities to use resources amassed
intheeconomicmarketplacetoprovideanunfairadvantagein
the political marketplace, applicatio n of the statute to MCFL
didnotservethatinterestbecauseMCFLwasformedstrictlyto
disseminate
political ideas, not to amass capital.
77
Its available
resources were not a function of its success in the economic
marketplace,butitspopularityinthepoliticalm a rketplace.
78
In short, the Courtconcluded that “MCFL is not the type of
‘traditional corporatio[n] organized for economic gain’...that
hasbeenthefocusofregulationofcorporatepoliticalactivity”
79
and announced an exception for what are now known as
MCFLcorporations.
80
ThescopeofMCFL’sconstitutionallimitationhasnotproven
to be particularly robust. For example, in Austin v. Michigan
StateChamberof Commerce,
81
the Court upheld aMichigan stat‐
ute that prohibited corporate treasury funds from being used
forindependentexpendituresinsupportof,orinoppositionto,
73.Id.at242.
74.Id.at249.
75.Id.
76.Id.at261.
77.Id.at264.
78.Id.
79.Id.at259.
80.Such an exempted organization, in the Court’s view, has three attributes.
First, “it was formed for the express purpose of promoting political ideas, and
cannotengage
inbusinessactivities.”Id.at263–64.Becauseitsfundingisattracted
forpoliticalpurposes, “[t]his ensures that political resourcesreflectpoliticalsup‐
port.”Id.at264.Second,“ithasnoshareholdersorotherpersonsaffiliatedsoasto
have a claim on its assets or earnings.” Id. Finally, it will
not have been “estab‐
lishedbyabusinesscorporationoralaborunion,anditisitspolicynottoaccept
contributions from such entities.” Id. This restriction, the Court reasoned, “pre‐
vents such corporations from serving as conduits for the type of direct spending
thatcreatesathreattothe
politicalmarketplace.”Id.
81.494U.S.652(1990).
296 HarvardJournalofLaw&PublicPolicy [Vol.33
a candidate.
82
The prohibition, the Court concluded, was nar‐
rowly tailored to serve a compelling state interest.
83
Although
the Chamber of Commerce was a nonprofit entity, it was not
formedfor thepurpose ofpoliticaladvocacy.
84
Additionally, it
did not consist entirely of members supporting its political
purposesandacceptedmoneyfromfor‐profitcorporations.
85
Nevertheless, the narrowing construction of section 441b
contributed to the ability of interested parties to engage in in‐
dependentissueadvocacyaslongastheycarefullyavoidedthe
magicwordsofexpressadvocacy.Thus,notonlydidexpendi‐
tures by individuals and unincorporated associations fall
withinthe safe harbor,but
sodid adsrunby,orwith thecon‐
tributionsof,corporationsandunions.
Restrictionsoncontributionshavefaredbetter.InFECv.Na‐
tional Right to Work Committee,
86
the Court upheld restricti ons
on contributions by corporate polit ical action committees or‐
ganizedtomakecampaigncontributions,relyingonthespecial
advantages of the corporate form and the differing nature of
contributions both with respect to communicative impact and
the potential for corruption.
87
In Nixon v. Shrink Missouri Gov‐
ernment Political Action Committee,
88
it upheld state limitations
oncampaigncontributions,notwithstandingthat,inrealterms,
the state restrictions were substantially lower than those ap‐
provedinBuckley.
89
Indoingso,itmadeclearthatcontribution
limits involving “‘significant interference’ with associational
rights,” need not survive strict scrutiny.
90
Instead, the govern‐
mentneedonlyshowthattherestrictionwas“closelydrawn”to
match a “sufficiently important interest.”
91
In FEC v. Colorado
RepublicanFederalCampaignCommittee(ColoradoII),
92
itrejecteda
facialchallengetolimitsonpartyexpenditures coordinatedwith
acampaign,continuingBuckley’sviewthatcoor di natedexpendi‐
82.Id.at654–55.
83.Id.at655.
84.Id.at672(Brennan,J.,concurring).
85.Id.at664(majorityopinion).
86.459U.S.197(1982).
87.Id.at209–11.
88.528U.S.377(2000).
89.Id.at396–98.
90.Id.at387–88(citationomitted).
91.Id.(citationomitted).
92.
533U.S.431(2001).
No.1] PublicCampaignFinancing 297
tures are very much like contributions.
93
In FEC v. Beaumont,
94
the Court upheld prohibitions on corporate contributions, even
fromnonprofitadvoca cy corporationssimilartoMCFL.
95
C. TheNatureofCorruption:SettingExpendituresand
ContributionsApart
This persistent distinction—with expenditures constituting
expressadvocacyandcontributionsbeingsubjecttosubstantial
regulation, and other expenditures being relatively free, has
coexisted with substantial disagreements between the Court’s
regulatory proponents and regulatory skeptics regarding the
nature of the State’s interest
in regulating campaign contribu‐
tions and expenditures. One perspective has suggested that
restrictions may only be based upon the interest in avoiding
actual or apparent corruption, understood as the undue influ‐
ence of individual donors upon individual candidates, that is,
quid pro quo or “play for pay” corruption. This view
has
tended to prevail—or at least receive greater emphasis—in
casesinvolvingregulationofexpenditures.
The per curiam opinion in Buckley, for example, stated that
the only compelling interest supporting such regulations was
thepreventionofactualorapparentcorruption.
96
Itarguedthat
the “concept that government may restrict the speech of some
elementsofoursocietyinordertoenhancetherelativevoicesof
others is wholly foreign to the First Amendment.”
97
In NCPAC,
the majority again claimed that “preventing corruption or the
appearance of corruption are the only legitimate and compel‐
ling interests thus far identified for restricting campaign fi‐
nances.”
98
It defined corruption as elected officials being “in‐
fluenced to act contrary to their obligations of office by the
prospectof financial gain to themselvesor infusions of money
into their campaigns.”
99
Restrictions of independent expendi‐
turesdonotservethatinterestbecause“anexchangeofpolitical
favors for uncoordinated expenditur e s remains a hypothetical
93.Id.at437.
94.539U.S.146(2003).
95.Id.at149.
96.SeeBuckleyv.Valeo,424U.S.1,25–26(1976).
97.Id.at48–49.
98.FECv.Nat’lConservativePoliti calActionComm.,470U.S.480,496–97(1985).
99.Id.at497.
298 HarvardJournalofLaw&PublicPolicy [Vol.33
possibilityandnothing more.”
100
Themajority, quotingBuckley,
reasoned that “[t]he absence of prearrangement and coordina‐
tion of an expenditurewith the candidate or hisagentnotonly
undermines the value of the expenditur e to the candidate, but
also alleviates the danger that expenditur es will be given as a
quidproquoforimproper
commitmentsfromthecandidate.”
101
That these communications might have an effect, the Court
concluded,isamattertobeembracedandnotlamented:
Thefactthatcandidatesandelectedofficialsmayalterorre‐
affirmtheir own positions on issues in response to political
messagespaidforbythePACscanhardlybecalledcorrup‐
tion, for one of the essential features of democracy is the
presentationtotheelectorateofvaryingpointsof
view.
102
Atthesametime—incasesupholdingregulation,ofteninvolv‐
ingcontributions—theCourtoften hassuggestedaninterestin
combating an expanded form of corruption. In MCFL, for ex‐
ample,theCourtrecognizedthatrestrictionsoncorporatecon‐
tributionsandexpressadvocacymightbejustifiedby:
[T]he need to restrict “the influence of political war chests
funneled through the corporate form,” to “eliminate the ef‐
fect of aggregated wealth on federal elections,” to curb the
politicalinfluence of “thosewho exercise control over large
aggregationsofcapital,”andtoregulatethe“substantialag‐
gregations of wealth amassed
by the special advantages
whichgowiththecorporateformoforganization.”
103
Thisinterestinlimitingwhatthemajoritycalled“thecorrosive
influence of concentrated corporate wealth reflects the convic‐
tion that it is important to protect the integrity of the market‐
placeofpoliticalideas.”
104
Thatrationaleis,ofcourse,broaderthanthetypeofquidpro
quocorruptionemphasizedinBuckleyandNCPAC,suggesting
a legitimate state interest in counteracting the impact of un‐
equalfinancialresourcesin political campaigns. In ShrinkMis‐
100.Id.at498.
101.Id.at497(quotingBuckley,424U.S.at47).
102.Id.at498.
103.FEC v. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238, 257 (1986) (cita‐
tionsomitted).
104.Id.
No.1] PublicCampaignFinancing 299
souri, the Court again recognized a broader “corruption” con‐
cern:
In speaking of “improper influence” and “opportunities for
abuse” in addition to “quid pro quo arrangements,” we rec‐
ognizedaconcernnotconfinedtobriberyofpublicofficials,
but extending to the broader threat from politicians too
compliantwiththewishesoflargecontributors.Thesewere
theobviouspointsbehind
ourrecognitionthattheCongress
could constitutionally address the power of money “to in‐
fluencegovernmentalaction”inwaysless“blatantandspe‐
cific”thanbribery.
105
This interest was expressly rooted not only in actual threats,
butalsoinpublicperception.
106
Itinvolvedbothcorporatecon‐
tributionsandindividualdonations.
Thismoreexpansiveviewofcorruptionisonlypartiallycon‐
cerned with corruption as commonly understood, that is, the
idea of improper influence. It suggests that money‐bought ac‐
cess—or widespread belief in its existence—can justify regula‐
tion. Beyond that, it
seeks to address the disproportionate in‐
fluenceofthosewith moneytospend.AsJusticeBrennanputit
in MCFL, the concern is that “[d]irect corporate spending on
political activity raises the prospect that resources amassed in
the economic marketplace may be used to provide an unfair
advantage in the
political marketplace.”
107
The availability of
funds is—or ought to be—a “rough barometer of public sup‐
port,”butfundsaccumulatedbya businesscorporationreflect
successintheeconomicratherthanthepoliticalmarketplace.
108
This theory, with its emphasis on insulation of the political
marketplacefrom thedisparities ofwealth createdin amarket
economy, rests uneasily on the distinction between expendi‐
tures and contributions. Even if contributions do not raise the
sameprospectofquidproquocorruption,theypermittheeco‐
nomic
marketplace to influence the political process. They
105.Nixonv.ShrinkMo.Gov’tPAC.,528U.S. 377,389(2000)(quoting Buckley,
424U.S.at28).
106.Id. at 388–89(“Congress could legitimately conclude that the avoidanceof
the appearance of improper influence ‘is also critical...if confidence in the sys‐
tem of representative Government
is not to be eroded to a disastrous extent.”
(alteration in original) (quoting Buckley, 424 U.S. at 26–27) (internal quotation
marksomitted)).
107.MCFL,479U.S.at257.
108.Id.at258.
300 HarvardJournalofLaw&PublicPolicy [Vol.33
permitthosewithmoremoneytospeaklouder.Ifthestateac‐
tually wishes to construct a more egalitarian system of cam ‐
paign finance in the sense of divorcing—or at least distanc‐
ing—it from the distribution of private wealth, then its
objective is at war with the strong and robust constitutional
protectionofexpenditures.
II. W
HACKINGTHEMOLE:EXPENDITURESSURVIVE
A. AnAttempttoLimitIndependentExpenditures
TheresultofBuckley’sdistinction betweencontributionsand
expenditures and between express and issue advocacy has
beena substantialmovement ofmoney toindependent expen‐
ditures. During the 1998 election cycle, spending on issue ads
doubled to between $270 and $340 million and
exceeded $500
million in 2000.
109
Independent expenditures related to 527 or‐
ganizationsexceeded$240millionin2008,$198millionin2006,
and $440 million in 2004.
110
During the 2008 election cycle, in‐
dependent money shifted, to some extent, from 527 organiza‐
tionsto 501(c)organizations.
111
This movemayhave beenpro‐
motedbymorelenientdisclosurerequirementsforthelatter.
112
Concern over the proliferation of these ads and the relative
lackof restrictionson thewayin whichthey are financedulti‐
mately led to passage of the Bipartisan CampaignReform Act
of 2002 (BCRA), popularly known as the McCain‐Feingold
Act.
113
The pertinent part of BCRA prohibits electioneering
communications paid for with corporate or union treasury
fundswithin thirtydays ofaprimaryandsixty days ofa gen‐
eral election for a federal office.
114
Electioneering communica‐
tions are defined as any“broadcast, cable, or satellite commu‐
109.SeeMcConnellv.FEC,540U.S.93,127n.20(2003).
110.OpenSecrets.org, 527s: Advocacy Group Spending in the 2010 Elections,
https://www.opensecrets.org/527s/index.php(lastvisitedOct.14,2009).
111.TheCampaignFinanceInstitute,OutsideSoftMoneyGroupsApproaching
$400 Million in Targeted 2008 Election, http://www.cfin st.org /pr/prR e
lease.aspx?ReleaseID=214(lastvisitedOct.14,2009).
112.
SeeJeffreyH.Birnbaum,ToConcealDonors,SomePoliticalGroupsLooktothe
TaxCode,W
ASH.POST,April17,2007,atA19.
113.2U.S.C.§§431–434(2006).
114.See2U.S.C.§434(f)(3)(A).
No.1] PublicCampaignFinancing 301
nication” that “refers to a clearly identified candidate for Fed‐
eraloffic e ”andthatis“targetedtotherelevantelectorate.”
115
ThisaspectofBCRAwasupheldagainstafacialchallengein
McConnell v. FEC.
116
Writing for a 5‐4 majority, Justices
O’Connor and Stevens explained that Buckley’s distinction be‐
tween express and issue advocacy was a matter of statutory
interpretation, not constitutional command.
117
It was adopted
to cure the potentially fatal vagueness of FECA’s definition of
restricted expenditures “to include the use of money or other
assets‘for the purpose of...influencing’ a federal election.”
118
These vagueness concerns, in the view of the Court, are not
presentinthe morespecific definitionof prohibitedcommuni‐
cationsinBCRA.
119
Alladsmentioningacandidateareprohib‐
itedduringtheblackoutperiod.
Although the Court declined to abandon Buckley’s differing
approachestocontributionsand expenditures,
120
a majorityre‐
jectedtheideathat“theFirstAmendmentrequiresCongressto
treat so‐called issue advocacy differently from express advo ‐
cacy.”
121
The majority rejected the idea that the First Amend‐
menterectsarigidbarrierbetweenrestrictionofexpressadvo ‐
cacy and of issue advocacy. Regulation of the former was
necessary to serve Congress’s goal to combat real or apparent
corruption.Thedistinctionbetweenthepresenceorabsenceof
Buckley’s“magic
words”was“functionallymeaningless.”
122
Thereis“[l]ittledifference,”themajoritystated,“betweenan
ad that urged viewers to ‘vote against Jane Doe’ and one that
condemned Jane Doe’s record on a particular issue before ex‐
horting viewers to ‘call Jane Doe and tell her what you
think.’”
123
In fact, some campaign professionals claim that the
mosteffectiveadsavoidtheuseofmagicwords.
124
115.Id.
116.540U.S.93(2003).
117.Id.at190.
118.Id.at191(quotingBuckleyv.Valeo,424U.S.1,77(1976)).
119.Id.at194.
120.Id.at137–38.
121.Id.at194.
122.Id.at193.
123.Id.at126–27.TheCourtnotedthatveryfewcandidate
adscontainedwords
ofexpressadvocacy.Id.at127n.18.
124.Id.at193n.77.
302 HarvardJournalofLaw&PublicPolicy [Vol.33
The ads may have been functionally equivalent, but the
methodsbywhichtheywerefinancedwerenot:
Corporationsandunionsspenthundredsofmillionsof dol‐
larsoftheirgeneralfundstopayfortheseads,andthoseex‐
penditures, like soft‐money donations to the political par‐
ties, were unregulated under FECA. Indeed, the ads were
attractive toorganizationsand candidates precisely because
they were beyond FECA’s
reach, enabling candidates and
theirpartiestoworkcloselywithfriendlyinterestgroupsto
sponsorso‐called issueadswhenthecandidatesthemselves
wererunningoutofmoney.
125
The ads, moreover, are usually run by groups with bland and
mysterious names, often falsely suggesting a grassroots prove‐
nance.
126
Votersmaybeu nlikelytoknowwhosponsoredthem.
127
The Court observed that political candidates and parties
would ask those who had donated their permitted quota of
hard money to contribute additional funds for issue advo‐
cacy.
128
In the pre‐BCRA world, such candidates and parties
“knew who their friends were.”
129
Requiring words of express
advocacy,intheviewofthemajority,createdamassiveoppor‐
tunity for evasion that Congress chose to address through the
BCRA’s blackout period for electioneering communication fi‐
nancedbycorporateanduniontreasuryfunds.
Once again, the Court recognized a stateinterest in combat‐
ing
abroaderformofcorruptionsoastodiminishthepolitical
influenceof wealth.
130
Theprohibitionagainst useof corporate
and union treasury funds was justified by Congress’s interest
inrestraining“‘thecorrosiveanddistortingeffectsofimmense
aggregations of wealth that are accumulated with the help of
thecorporate form and that have little or no correlation to the
public’ssupportforthe
corporation’spoliticalideas.’”
131
This holding has—or, at least for a brief period of time,
had—two implications for the future of issue advertising. The
125.Id.at127–28(citationsomitted).
126.Seeid.at128.
127.Seeid.at205.
128.Id.at129.
129.Id.
130.Seeid.at205.
131.Id. (quoting Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 660
(1990)).
No.1] PublicCampaignFinancing 303
interest in avoiding the fact or appearance of corruption justi‐
fiesthe restriction of communicationsthat may have the effect
ofaidinga candidateeven inthe absence ofanyconnectionor
coordinationwith thecandidate,orwordsofexpressadvocacy.
Althougha majority retained
the distinctionbetween expendi‐
tures and contributions, expenditures could be restricted in
supportoflimitationsoncontributions.
In addition, as in MCFL and Austin, a majority once again
heldthatrestrictingtheadvantagesinamassingresourcessup‐
posedly enjoyed by corporations justifies restriction on corpo‐
ratespeech.Itsuggested,moreover,
arelatedinterestinequal‐
izingresourcesinpoliticalcampaigns—inachievingwhatRick
Hasen, borrowing from Justice Brennan in MCFL, calls baro‐
metric equality—the notion that financial support should
roughlyreflectpopular support.
132
Although raisedin the con‐
text of corporations and unions, McConnell suggested again
thatthestatehasaninterestinensuring,atleast,somerelation‐
shipbetweenfinancialandpopularsupport.
McConnell itself did not end or even diminish issue adver‐
tisements. Regulatory gaps and legal ingenuity enabled con‐
tinued
growthinindependent expenditures.
133
Thesecouldstill
befinancedby individuals and certain groups, such as527 or‐
ganizations,which continued to be outside mostfederal statu‐
toryrestrictions.Moneyfoundaway.
Yetthepathtogreaterrestrictionseemedclear.Thebreadthof
the McConnell rationale encompassed not only the capacity of
corporations
andunionstoamasslargeamountsofwealth,buta
broadernotion of theanticorruptionrationale.It suggested that
many of the remaining legislative lacunae could be readily
closedandissueadvertisingcouldbesubstantiallyrestricted.
B. TheProtectionofIssueAdvocacy
But not for long. In Wisconsin Right to Life
, a nonprofit pro‐
lifeorganizationsought to run adsduring the blackout period
addressing the filibuster of Bush administration judicial nomi‐
132.See Richard L. Hasen, THE SUPREME COURT AND ELECTION LAW: JUDGING
EQUALITYFROMBAKERV.CARRTOBUSHV.GORE111–12(2003).
133.Seesupratextaccompanyingnotes20–22.
304 HarvardJournalofLaw&PublicPolicy [Vol.33
nees.
134
The ads in question were fairly standard representa‐
tions of the genre. They called upon Wisconsin Senators Kohl
andFeingoldtosupportupordownvotesonPresidentBush’s
judicialnominees.
135
WisconsinRighttoLife(WRTL)wishedto
runtheadsduringtheblackoutperiodprecedingSenatorFein‐
gold’s bid for reelection.
136
It wished to use general treasury
funds to pay for the ads and admitted that these funds in‐
cludedsomefromcorporatedonors.
ThemattercametotheCourttwice.InFECv.WisconsinRight
to Life (WRTL I),
137
the Court held that McConnell did not fore‐
close “as applied” challenges to BCRA.
138
One year later, in
WRTL II, the Court upheld Wisconsin Right to Life’s “as ap‐
plied” challenge, splitting three ways.
139
Justices Scalia, Ken‐
nedy, and Thomas, who dissented in McConnell, reiterated
their belief that the blackout provision was either unconstitu‐
tionally vague or facially unconstitutional.
140
Justices Souter,
Stevens, Ginsburg, and Breyer, all of whom (with Justice
O’Connor)wereintheMcConnellmajority,wouldhaveupheld
application of the blackout provision to the ads in question.
141
134.FEC v. Wis. Rightto Life, Inc. (WRTL II), 551 U.S. 449, 458–59. One of the
ads,called“Wedding,”featuredabrideandgroomatthealtar:
Pastor:Andwhogivesthiswomantobemarriedtothisman?
Bride’s Father: Well, as father of the bride, I
certainly could. But instead,
I’d like to share a few tipsonhow to properlyinstalldrywall. Now you
putthedrywallup...
Voice–Over:Sometimesit’sjustnotfairtodelayanimportantdecision.
But in Washington it’s happening. A group of Senators is using the
filibuster
delay tactic to block federal judicial nominees from a simple
‘yes’or‘no’vote.Soqualifiedcandidatesdon’tgetachancetoserve.
It’spoliticsatwork,causinggridlockandbackingupsomeofourcourts
toastateofemergency.
ContactSe nat or sFeingoldandKohlandtellthemto
opposethefilibuster.
Visit:BeFair.org
Paid for by WisconsinRightto Life (befair.org),which is responsible for
the content of this advertising and not authorized by any candidate or
candidate’scommittee.
Id.(internalquotationmarksomitted).ThetextoftheothertwoWRTLadvertise‐
mentswassimilar.Seeid.at
459.
135.Id.at459.
136.Id.at460.
137.546U.S.410(2005).
138.Id.at412.
139.WRTLII,551U.S.449.
140.Id.at483–84(Scalia,J.,concurringinpartandconcurringinthejudgment).
141.Id.at504(Souter,J.,dissenting).
No.1] PublicCampaignFinancing 305
The twonew members of the Court, Chief Justice Roberts and
JusticeAlito,agreedin a“principal opinion”(writtenbyChief
Justice Roberts) that WRTL and its corporate donors have a
FirstAmendment right tocommunicate on issuesof interest—
evenduringtheelection and
eveniftheynameacandidatefor
federal office.
142
Restriction of this right cannot, in the absence
of coordination with the candidate, be justified by the interest
inavoidingactualorapparentimpropriety.Theprincipalopin‐
ion nevertheless purported to follow McConnell’s holding that
the “functional equivalent” of express advocacy may be re‐
stricted,
143
butitadoptedanextraordinarilygenerousdefinition
of“genuineissueadvocacy.”
144
Inordertoprotect“thelibertytodiscusspubliclyandtruth‐
fullyallmattersofpublicconcernwithoutpreviousrestraintor
fear of subsequent punishment,”
145
the principal opinion ar‐
guedthatthetestforexpressadvocacyoritsfunctionalequiva‐
lent “must be objective, focusing on the substance of the com‐
munication ratherthanon amorphous considerations of intent
andeffect.”
146
Therefore,neithertheintentnortheeffect(inthe
sense of examining whether an ad actually influences—or is
likelytoinfluence—votes)isrelevant.Thus,theprincipalopin‐
ion held that BCRA’s blackout provisions can only be applied
to ads that are “susceptible [to] no reasonable interpretation
other than as an
appeal to vote for or against a specific candi‐
date.”
147
Inotherwords,ifacommunicationcanreasonably be
calledanissuead,thenitisanissuead.
Althoughonecouldimagineaninquiryintothenatureofan
ad that is highlycontextualized anddriven by the roleplayed
by that ad in the particular race, the principal
opinion made
clear that WRTLII was not that case.
148
Because the possibility
of a lengthy, indeterminate, and necessarily subjective inquiry
would chill speech, the inquiry into whether an ad cannot be
construed as an issue ad must be objective and straight‐
142.Id.at481–82.
143.Id.at457.
144.Id.at469–70.
145.Id. at 469 (quoting First National Bank of Boston v. Bellotti, 435 U.S. 765,
776(1978)).
146.Id.at469.
147.Id.at469–70(emphasisadded).
148.Seeid.at469.
306 HarvardJournalofLaw&PublicPolicy [Vol.33
forward in a way that will minimize uncertainty and that will
not deter protected speech.
149
Because the “benefit of the
doubt” ought to go to “speech, not censorship,”
150
this inquiry
mustnotbeoverlyconcernedwithcontext,andthedetermina‐
tion should involve little, if any, discovery.
151
Thus,thedebate
overwhethersomethingis a“phony” or“genuine”issue adis
reducedtowhetheritdiscusses...issues.
TheCourtagreedthat“thedistinction betweendiscussionof
issues and candidates and advocacy of election or defeat of
candidates may often dissolve in practical application.
152
But,
unlike the Court in McConnell, the Court in WRTL II held that
such a tendency “is not enough to establish that the ads can
onlyreasonablybevie wedasadvocatingoropposingacandi‐
date in a federal election.”
153
“Discus s ion of issues,” it contin‐
ued,“cannotbesuppressedsimplybecause theissuesmayalso
bepertinentinan election. Wherethe First Amendmentisim‐
plicated,thetiegoestothespeaker.”
154
The Court had little difficulty finding that WRTL ads were
genuineissueadvertising:
Under this test, WRTL’s three ads are plainly not the func‐
tional equivalent of express advocacy.First, their content is
consistentwiththatofagenuineissuead:Theadsfocusona
legislativeissue,takeapositionontheissue,exhortthepub‐
lictoadoptthatposition,andurge
thepublictocontactpub‐
lic officials with respect to the matter.Second, their content
lacksindiciaofexpressadvocacy:Theadsdonotmentionan
election, candidacy, political party, or challenger; and they
do not take a position on a candidate’s character, qualifica‐
tions,orfitnessforoffice.
155
That WRTL and its PAC opposed Senator Feingold’s reelec‐
tion,intheCourt’sview,wentonlytoitssubjectiveintentand
wasthereforeirrelevant.Nordiditmatterthattheadrannear
149.Seeid.at468–69.
150.Id.at452.
151.Id.at469.
152.Id.at474(quotingBuckleyv. Valeo, 424 U.S.1,42(1976)).Themajority in
McConnell thought them “functionally identical in important respects.” McCon‐
nellv.FEC,540U.S.93,126(2003).
153.WRTLII
,551U.S.at474.
154.Id.
155.Id.at470.
No.1] PublicCampaignFinancing 307
an election but after the Senate had recessed.
156
An issue ad
might reasonably be run when a legislator is back home or “to
coincidewithpu blic interestratherthanafloorvote.”
157
Thead’s
directionofviewerstoawebsitethatsetforththeSenators’posi‐
tions on judicial filibusters and allowed visitors to sign up for
“‘e‐alerts,’someofwhichcontainedexhortationstovoteagainst
SenatorFeingold,”
158
alsodi dnotimpresstheCourt.
Regulationofissueadscouldnot,intheviewoftheprincipal
opinion,be justifiedbythestate’sinterestin preventingactual
or apparent corruption or in promoting a more “egalitarian”
systemofcampaignfinance:
ThisCourthaslongrecognized“thegovernmentalinterestin
preventing corruption and the appearance of corruption” in
electioncampaigns.Thisinteresthasbeeninvokedasareason
for upholding contribution limits. As Buckley explained, “[t]o
theextentthatlargecontributionsaregiventosecureapoliti‐
calquid proquofrom
current and potentialoffice holders,the
integrity of our system of representative democracy is un‐
dermined.” We have suggested that this interest might also
justifylimits onelectioneeringexpenditures because it may be
that,insomecircumstances,“largeindependentexpenditures
pose the same dangers of actual or apparent quid pro
quo ar‐
rangementsasdolargecontributions.”
159
The majority rejected the interest in combating a broader
formofcorruptionandminimizingthe influenceofcorporate
wealth relied upon in Austin and McConnell.
160
Specifically,
the corruption represented by “the corrosive and distorting
effects of immense aggregations of wealth that are accumu‐
latedwithth e helpofthe corpo rateform”was notenough to
trump First Amendment rights.
161
This “different type of co r ‐
ruption,” he said, does not apply outside the scope of cam‐
paign speech and “genuin e issue ads” (as WRTL II de fines
them)arenotthat.
162
156.Id.at472.
157.Id.at472–73.
158.Id.at473.
159.Id.at478(citationomitted).
160.Id.at479.
161.Id.(quotingAustinv.Mich.StateChamberofCommerce,494U.S.652,660
(1990)).
162.Id.at480.
308 HarvardJournalofLaw&PublicPolicy [Vol.33
McConnell arguably applied this interest—which this Court
had onlyassumed could justify regulation of express advo‐
cacy—to ads that were the “functional equivalent” of ex‐
pressadvocacy.ButtojustifyregulationofWRTL’sads,this
interestmustbestretchedyetanothersteptoadsthatarenot
the functional equivalent of
express advocacy. Enough is
enough.
163
“Issue ads like WRTL’s,” according to Chief Justice Roberts,
“arebynomeansequivalenttocontributions,andthequidpro
quo corruption interest cannot justify regulating them. To
equate WRTL’s ads with contributions is to ignore their value
aspoliticalspeech.”
164
Finally, the principal opinion declined tocontinue the game
of“Whac‐A‐Mole.”Itrejectedtheideathat“anexpansivedefi‐
nition of ‘functional equivalent’ is needed to ensure that issue
advocacy does not circumvent the rule against express advo‐
cacy, which in turn helpsprotect against circumvention of the
rule against contributions.”
165
This “prophylaxis upon prophy‐
laxis” approach is inconsistent with strict scrutiny.
166
That
WRTL had the option of forming a PAC could not justify the
restriction of any speech other than express advocacy or its
functionalequivalent.
167
Thedissentraisedagainthethemeoftheneedtocounterthe
political impact of “concentrations of money in self‐interested
hands”that“threatensthecapacityofthisdemocracytorepre‐
sent its constituents and the confidence of its citizens in their
capacity to govern themselves.”
168
These interests, critical in
MCFL, Austin and McConnell, justify, as opposed to a laissez
faire approach to the electoral process, “clear and reasonable
boundaries...to limit ‘the corrosive and distorting effects of
immense aggregations of wealth.’”
169
The principal opinion,
theyargued,leftlittleroomfortheseboundaries:
[I]t is hard to imagine the Chief Justice would ever find an
ad to be “susceptible of no reasonable interpretation other
163.Id.at478(citationomitted).
164.Id.at478–79.
165.Id.at479.
166.Id.
167.Id.at477n.9.
168.Id.at507(Souter,J.,dissenting).
169.Id.at535(citationomitted).
No.1] PublicCampaignFinancing 309
thanasanappealtovotefororagainstaspecificcandidate,”
unless it contained words of express advocacy. The Chief
Justice thus effectively reinstates the same toothless “magic
words” criterion of regulable electioneering that led Con‐
gresstoenactBCRAinthefirstplace.
170
There was, in the view of the four dissenting justices, no way
that the hypothetical “Jane Doe ad,” regarded as the “func‐
tional equivalence” of express advocacy in McConnell, would
not be considered genuine issue advocacy under the test
adoptedby the principalopinioninWRTL II.
171
Thethree con‐
curring justices agreed.
172
To the dissent, McConnell had been
“invert[ed].”
173
“[W]emeant,”theysaid,“thatanissueadwith‐
out campaign advocacy could escape the restriction.”
174
The
principal op inion, however, “wrings the opposite conclusion”
from McConnell stating thatif there is any way to characterize
anadasissueadvocacy,itisfreefrom restriction.
175
1. TheContinuedViabilityofIssueAds
WRTL II has two implications that are important here. It af‐
firms the continued viability of the now over thirty‐year‐old
distinction between expenditures and contributions. The latter
canberestrictedtoavoid actualorapparentcorruption,butthe
former—even ifcandidates
areableto know whotheir friends
are—cannot.And whiletheCourtdoes notexplicitly return to
theregimeofmagicwords,itshouldnotbedifficultforadver‐
tiserstoframeelectioncyclecommunicationsas“genuineissue
advocacy.”Asaconsequence,themarketforissueadsislikely
to remain
robust. As the WRTL II dissent
176
and a number of
170.Id.at531.
171.Id.at525–27.
172.Id. at 498 n.7 (Scalia, J., concurring). One is tempted to observe that any
proposition of law agreed upon by Justices Scalia, Thomas, Kennedy, Stevens,
Souter,Breyer,andGinsburgmaywellbetakenasconclusivelyproven.
173.Id.at526
(Souter,J.,dissenting).
174.Id.
175.Id.AlthoughitseemsindisputablethattheWRTLIIprincipalopinionisin‐
consistentwithMcConnell,itislessclearthatit“inverts”it.Itdoesnotsuggest,for
example,thatonlycampaignadswithoutissuecontentaresubjecttorestrictionor
even
thatanyissuecontentwillimmunizeanadfromrestriction.
176.Id. at 536 (“After today, the ban on contributions by corporations and un‐
ions and the limitation on their corrosive spending when they enter the political
arena are open to easy circumvention, and the possibilities for regulating corpo‐
rate
andunioncampaignmoneyareunclear.”).
310 HarvardJournalofLaw&PublicPolicy [Vol.33
commentatorshavenoted,
177
WRTLIIcreatesaratherlargesafe
harbor for independent expenditures mentioning candidates
butpurportingtofocusonissues.
FECregulationsseekingtoimplementWRTLIIdonotsuggest
otherwise.Aftersettingforththetestfromtheprincipalopinion,
thatis, thatcorporationsandlabororganizations areprohibited
from making
electioneering communications only if “the com‐
munication is susceptible of no reasonable interpretation other
thanasanappealtovotefororagainstaclearlyidentifiedFed‐
eral candidate,”
178
the rules provid e for a safe harbor. In perti‐
nentpart,acommunicationwillfallwithinthesafeharborifit:
[d]oes not mention any election, candidacy, political party,
opposing candidate, or voting by the general public; [d]oes
nottakeapositiononanycandidate’sorofficeholder’schar‐
acter,qualifications,orfitnessforoffice[and][f]ocusesona
legislative, executive or judicial matter or issue [while it]
[u]rges a candidate to take
a particular position or action
with respect to the matter or issue, or [u]rges the public to
adoptaparticularpositionandtocontactthecandidatewith
respect to the matter or issue; or [p]roposes a commercial
transaction,suchasthepurchaseof...aproductorservice,
orattendance(forafee)atafilmexhibitionorotherevent.
179
177.See,e.g.,LillianR.BeVier,FirstAmendmentBasicsRedux:Buckleyv.Valeoto
FEC v. Wisconsin Right to Life, 2006–2007 C
ATO SUP. CT. REV. 77,99; Richard L.
Hasen,BeyondIncoherence:TheRobertsCourt’sDeregulatoryTurninFECv.Wiscon‐
sin Right toLife, 92
MINN. L. REV. 1064, 1089 (2008) (“Ratherthan most election‐
eeringcommunicationsbeingsubjecttosection203,WRTLIImandatesthatmost
such communications be exempted from section 203.”); Frances R. Hill, Exempt
Organizationsinthe2008Election:WillWisconsinRighttoLifeBringChanges?,19U.
FLA. J.L. & PUB. POL’Y 271, 286 (2008); Matthew Modell, Protecting Free Speech in
ElectioneeringCommunications:FECv.WisconsinRighttoLife,9N.C.
J.L. &TECH.
ON. 30, 44–45 (2007), (“The WRTL ruling essentially brings us back to a ‘magic
words’ test.”); cf. Margaret G. Perl and Kimberly A. Demarchi, Direct Democracy
and Indirect Regulation: The Brewing Conflict Between Federal Campaign Finance Law
and State Ballot Measure Campaigns, 34 W
M. MITCHELL L. REV. 591, 624 (2008)
(“WRTLhasarguablyremovedmostoftherestrictionsthatBCRA’selectioneering
communications provisions placed on ballot measure committee advertisements
featuringafederalcandidate.”).ButseePaulS.Ryan,WisconsinRighttoLifeand
theResurrectionofFurgatch,19S
TAN.L.&POL’YREV.130,159(2008)(arguingthat
WRTL II should not be read to require magic words,but tosay that an ad is the
functionalequivalentofexpressadvocacy “when read as a whole,and with lim‐
itedreferencetoexternalevents,[itis]susceptibleofnootherreasonableinterpre‐
tation
but as an exhortation to vote for or against a specific candidate” (quoting
FECv.Furgatch,807F.2d857,864(9thCir.1987))).
178.11C.F.R.§114.15(a)(2009).
179.11C.F.R.§114.15(b).
No.1] PublicCampaignFinancing 311
Butevenanadoutsidethisrelatively deepsafeharbormust
nevertheless be examined for “indicia of express advocacy” to
determine whether it “has an interpretation other than as an
appealtovotefor oragainsta clearlyidentified Federalcandi‐
date.”
180
Drawing on Chief Justice Roberts’s controlling opin‐
ion,
181
it identifies such indicia as mention of “any election,
candidacy,politicalparty,opposingcandidate,orvotingbythe
generalpublic”orexpressionof“aposition onanycandidate’s
or officeholder’s character, qualifications, or fitness for of‐
fice.”
182
Content that would support an interpretation other
than as an appeal to vote for or against a candidate includes
focusingonapublicpolicyissueandcallingforacandidateto
takeapositionorforthepublictocontactthecandidate.Itmay
consistofanadthat“[i]ncludes
acalltoactionorotherappeal
thatinterpretedinconjunctionwiththerestofthecommunica‐
tion urges an action other than voting for or against” a candi‐
date.
183
Only “the communication itself and basic background
informationthatmaybenecessarytoputthecommunicationin
contextandwhichcanbeestablishedwithminimal,ifany,dis‐
covery”maybeconsidered.
184
The FEC “indicia” are easily avoidable—the WRTL ads
avoidedthemallandsodomostissueads.Intheeventthatthe
speaker has not happened upon a current legislative issue,
theredoesremainroomtoargue overexactlywhatconstitutes
commentary on a candidate’s “character, fitness, or qualifica‐
tion
foroffice,”butthislimitationisnotmeaningless.Themost
straightforward understanding of this phrase would limit itto
comments on a candidate unrelated to issues. But that line is
far from clear. Ads raising the specters of Senator McCain’s
cancer and President Obama’s radical associates may not be
180.11C.F.R.§114.15(c).
181.The principalopinioninWRTLII observed that the adsinquestionlacked
“indicia of express advocacy.” They did not “mention an election, candidacy,
political party, or challenger; and they do not take a position on a candidate’s
character,qualifications,orfitnessforoffice.”WRTL
II,551U.S.at470.
182.11C.F.R.§114.15(b).
183.11C.F.R.§114.15(c)(2)(iii).
184.11 C.F.R. §114.15(d).This information may include whether an individual
is a candidate or whether the communication describes a public policy issue. Id.
The rules provide that “any doubt will be resolved
in favor of permitting the
communication.”11C.F.R.§114.15(c)(3).
312 HarvardJournalofLaw&PublicPolicy [Vol.33
genuine issue ads.
185
What of criticizing a candidate’s relation‐
ship with lobbyists and calling for the reform of ethics stan‐
dards?WRTLII’sprotectionof issue advoca cywouldseemto
requiresomesubstantialroom fordiscussion ofaca nd id a te ’s
positiononthe issues,notwiths tandin g thatobje ct iona blepo‐
sitions on the issues could , in
some sense, bear on his “fit‐
ness”foroffice.
186
A person who wished to make a ca se for a more narrow
constructionofWRTLIImightseizeupon WRTL’sad’sfailure
to state Senator Feingold’s posit i on (although it featured the
URLforawebsiteonwhichthatin f ormationcouldbefound),
as the principal opinion noted when dist inguis hing WRTL’s
ad from the hypothetical “Jane Doe” ad discussed in McCon‐
nell.
187
Could it be argued that an ad that mentions and then
criticizes a candidate’s position is the functional equivalence
ofexpressadvocacy?
Butitwouldbeanextraordinarilycrampedviewofanissue
adthatlimitedittocallingforadvocacywithoutsettingforth
the position of the officeholder to
whom th at advocacy is to
bedirected.Itseemsreasonabletosus pectthatcitizenswillbe
farmorelikelytocontact anofficialwhoisthoughttooppose
the position that they prefer. Outside the context of an elec‐
tion, advocacy organizations, in attempting to rouse support
for or against a
particular piece of legislation, typically offer
arguments for their position and identify the position of vari‐
ouslegislatorsandofficials.
188
Thus,theidentificationandcriti‐
cism of an official’s position does not distinguish “genuine”
from“phony”ads.
185.Although one could argue that the Obama ad calls on him to repudiate
radicalideologies.
186.Responding to a request for an advisory opinion, the FEC deadlocked on
whetherproposedadsbytheNationalRighttoLifeCommitteediscussingBarack
Obama’sactionswithrespecttoanabortionbillwhilehe
wasintheIllinoisSenate
constituted issue ads. Both ads questioned his honesty and one concluded with
the phrase “Barack Obama: a candidate whose word you can’t believe in.” Alex
Knott, FEC Deadlocks Over Issue Ads, CQ
TODAY ONLINE NEWS, Oct. 23, 2008,
http://www.cqpolitics.com/wmspage.cfm?parm1=5&docID=news–000002978532.
187.FECv.Wis.RighttoLife,Inc.(WRTLII),551U.S.449,470–71n.6(2007).
188.Advocacyorganizationsfrequently communicate the positions of elected of‐
ficials—”scorecards”—onissuesofinterest.See,e.g.,NARALProChoiceAm.,2008
Congressional Record on Choice, http://www.prochoiceamerica.org/assets/files/
2008
‐congressional‐record‐on‐choice.pdf; Nat’l Right to Life Comm., NRLC Vote
Scorecard,http://www.capwiz.com/nrlc/home/.
No.1] PublicCampaignFinancing 313
More fundamentally, the philosophical orientation of WRTL
II’sprincipalopinion,sharedbytheconcurrence,doesnotsug‐
gest a narrow reading. Its insistence on the need to resolve all
doubtsinfavorofspeechmakessuchareadingunlikely.
Nor have post‐WRTL II
cases suggested a narrow construc‐
tion.InNorthCarolinaRighttoLife,Inc.v.Leake(NCRTLIII),the
Fourth Circuit upheld a challenge to North Carolina’s two‐
pronged test for e xpress advocacy or its functional equiva‐
lent.
189
The court found a variety of infirmities, including lan‐
guagesuggestingthatspeechmayberegulatedbasedonhowa
“reasonable person” would interpret its “essential nature” in
lightoffourcontextualfactors.
190
In Center for Individual Freedom, Inc. v. Ireland,
191
the United
States District Court for the Southern DistrictofWest Virginia
struckdownafacialchallengetoastatutethatprovidedthata
message may constitute express advocacy if it “‘can only be
interpreted by a reasonable person’ as advocating the election
or defeat of a candidate because ‘the
electoral portion’ is clear
and ‘[r]easonable minds could not differ’ as to whether the
messageencourageselectoralaction.”
192
Thisrelian ce onapos‐
ited “reasonable person,” in the court’s view, is inconsistent
with WRTL II.
193
Although Ireland’s outcome may be better ex‐
plainedbythelackofinterpretiveguidelinesinWestVirginia’s
statutes,
194
IrelandandNCRTLIII’srejectionofastandardbased
uponhow a reasonable personwould(as opposed to “could”)
interpretanadseemsconsistentwithWRTLII’sinsistencethat
a“tie”gotothespeaker.
195
Otherpost‐WRTLIIcasesprovidelittleguidance.InTheReal
Truth About Obama, Inc. v. FEC, the Fourth Circuit rejected the
plaintiff’s claims that the FEC’s regulations defining express
advocacywereunconstitutional.
196
InHumanLifeofWashington,
Inc. v. Brumsickle, a district court upheld disclosure require‐
189.525F.3d274(4thCir.2008).
190.Id.at280–81.
191.613F.Supp.2d777(S.D.W.Va.2009).
192.Id.at791.
193.Id.
194.Id.
195.FECv.Wis.RighttoLife(WRTLII),551U.S.449,474(2007).
196.575F.3d342,344–45
(4thCir.2009).
314 HarvardJournalofLaw&PublicPolicy [Vol.33
mentson issue advocacythat addressedan issuepresentedby
apendingreferendum.
197
The Supreme Court may provide some guidance in Citizens
Unitedv.FEC.
198
CitizensUnitedinvolvesapplicationofBCRA’s
restriction on electioneering communications to a film entitled
Hillary: The Movie, produced by a 501(c)(4) organization called
Citizens United.
199
The film focused on then‐presidential can‐
didate Senator Hillary Rodham Clinton’s “‘Senate record, her
White House record during President Bill Clinton’s presi‐
dency,...her presidential bid,’ and include[d] ‘express opin‐
ions on whether she would make a good president.’”
200
Al‐
thoughdisplayofthefilmintheatresanddistributionbyDVD
are outside the scope ofBCRA, Citizens United also sought to
makethefilmavailableona“videoondemand”cablechannel,
and the FEC took the position that the prohibition on broad‐
castingelectioneeringcommunicationsapplies.
The
districtcourt denied CitizensUnited’s motionfor apre‐
liminaryinjunction,findingthatthefilmdidnotreferenceleg‐
islative issues, referenced the election and Senator Clinton’s
candidacy, and “[took] a position on her character, qualifica‐
tions,andfitnessforoffice.”
201
Inthecourt’sview,thefilmwas
“susceptible of no otherinterpretation than to informthe elec‐
torate that Senator Clinton is unfit for office, that the United
Stateswould beadangerousplaceina PresidentHillary Clin‐
ton world, and that viewers should vote against her.”
202
Citi‐
zens United appealed directly to the United States Supreme
Courtpursuanttosection403(a)ofBCRA.
203
The Court noted probable jurisdiction and oral argument
washeldonMarch24,2009.Atoralargument,thegovernment
argued that Congress could, subject to a possible “media ex‐
ception,”constitutionallyprohibittheuseofcorporatefundsto
publish or distribute a book containing express advocacy dur‐
197.No.C09‐0590‐JCC,2009WL62144,at*24(W.D.Wash.Jan.8,2009).
198.530F.Supp.2d274(D.D.C.2008).
199.Id.at275.
200.Id.
201.Id.at279.
202.Id.
203.Jurisdictional statement at 3, Citizens United v. FEC, No. 07‐953 (U.S. Jan.
22,2008).
No.1] PublicCampaignFinancing 315
ingtherelevantblackoutperiod.
204
AlthoughthecurrentBCRA
doesnot,by itsterms,applytopublication ofa book,the gov‐
ernmentdidsaythatitsprohibitioncouldbeappliedtolengthy
anddetailedcommunications such as Hillary: The Movie, argu‐
ing that a corporation could not, for example, publish or dis‐
tribute a
book through satellite transmission to be read on a
Kindledevice.
205
This argument seemed to trouble the Court. Following ar‐
gument, the Court ordered rehearing and directed the parties
to brief the question of whether Austin’s approval of bans on
the use of corporate treasury funds to support or oppose can‐
didatesandMcConnell’sapprovalofabanonthe
useofcorpo‐
rateoruniontreasuryfunds forexpressadvocacy duringelec‐
tion season should be overruled or modified.
206
The case was
rearguedonSeptember9,2009,andthe Courtwill likelyhand
downadecisionsoon.
207
Should th e Court overrule Austin and the pertinent part of
McConnell, the distinction between “express” and “genuine
issue advocacy” would presumably become irr e le van t. The
safe harbor would then include not on ly issue advocacy but
uncoordinated express advocacy. It is also possible that the
Court will modify the earliercases to
limit their reach to for‐
profitcorporations.
Thereareways forthecasetobedecided,however,thatwill
notshedfurtherlightonWRTLII.TheCourtmightsimplyde‐
cidethatthe statutedoesnot applytovideo ondemand. Even
if the Court rules for the FEC,
it seems likely to do so on the
basis that Hillary: The Movie contains (indeed is apparently
filledwith)commentaryonHillaryClinton’scharacter,qualifi‐
cations, and fitness for office.
208
But if the district court’s de‐
scriptionisaccurate,theconclusionthatHillary:TheMoviecon‐
stitutes the“functional equivalent” of express advocacyseems
unexceptional under McConnell and WRTL II. Given what ap‐
204.TranscriptofOralArgumentat29–30,CitizensUnited,No.07‐953(Mar.24,
2009), available at http://www.supremecourtus.gov/oral_arguments/argument_tra
nscripts/08‐205.pdf.
205.Id.at28–29.
206.129S.Ct.2893(2009).
207.Adam Liptak, Justices Are Pressed for a Broad Ruling in CampaignCase, N.Y.
TIMES,Sept.10,2009,atA28.
208.TranscriptofOralArgument,supranote204,at11,20.
316 HarvardJournalofLaw&PublicPolicy [Vol.33
pears to bethediscomfortof atleast some of theJustices with
application ofBCRA’s blackout restriction to things likebooks
and movies, the Court might choose to expand on the defini‐
tionof“genuineissueadvocacy”inaway
thatmakesclearthat
someexpressadvocacy(whichseemsclearlytohavebeenpre‐
sent in the film) cannot justify application of the blackout pe‐
riod to communications which also include substantial issue
advocacy. It seems unlikely, however, that it will retreat from
thebroadprotectionthatitannouncedonly
twoyearsearlier.
209
2. WRTLIISuggestsaNarrowViewoftheCorruptionInterest
WRTLII’ssecondimplicationisthatthemajorityunambigu‐
ously dismissed the posited state interests that supported the
outcome in McConnell. That an ad may have been intended to
influence an election and had that effect is insufficient
to re‐
strictitonanticorruptiongrounds,notwithstandingthatpoliti‐
cians will “know who their friends are.” It roundly rejects the
“egalitarian”justificationforreform.
Thispartoftherulinghasimplicationsforthepublicfinanc‐
ingofelections.Arelativelyfreereinforindependentexpendi‐
tures makes public financing
difficult. Even if some combina ‐
tion of campaign restrictions and enhanced funding makes
opting into a system of public financing more attractive than
reliance on private funds, the ability of private money to flow
toindependentsthreatenstoswampthepubliclyfinancedmes‐
sagesof the candidates.It is unlikely
thatany politically feasi‐
bleamountofpublicfinancingwillcomeclosetomatchingthe
flow of independent money to critical races. As noted earlier,
oneresponsetorelativelyunconstrainedindependentexpendi‐
tures, enacted in various states, is to provide favorable treat‐
menttocandidatesfacingindependentexpenditures(orcandi‐
dates
who abjure public funding and, by self financing or
contributions, exceed certain spending levels). Most simply,
states with public financing systems may provide additional
fundstosuchcandidates.
209.There is alsoacase moving through the lower courts that raises the ques‐
tionofwhetheranorganizationthatqualifies asapoliticalcommitteeunderfed‐
erallaw(because,forexample,itsmajorpurposeisthenominationandelectionof
a candidate) can constitutionally be subjected to contribution limits
upon its do‐
nors. A district court recently denied the plaintiff’s motion for a preliminary in‐
junction.SpeechNow.orgv.FEC,567F.Supp.2d70(D.D.C.2008).
No.1] PublicCampaignFinancing 317
So far, these systems have fared well in the lower courts. In
NorthCarolinaRighttoLifeCommitteeFundforIndependentPoliti‐
cal Expenditures v. Leake (Leake III), the Fourth Circuit upheld a
state scheme that provided additional funding to certain can‐
didates facing
well‐financed, nonparticipating candidates.
210
Suchasystem,inthecourt’sview,“‘furthers,notabridges,per‐
tinentFirstAmendment values.’”
211
To the extentthat nonpar‐
ticipatingcandidatesorindependentgroupsaredeterredfrom
speech,it is a result of “astrategic, politicalchoice, not from a
threatofgovernmentcensureorprosecution.”
212
In Daggettv. Commission on Governmental Ethics and Election
Practices,theFirstCircuitupheldasimilarsysteminMaine.
213
The court declined to “e quat[e] responsive speech with an
impairment to th e initial speaker”
214
and observed that “the
purpose of the First Amen dment is to secure the widest pos‐
sible dissemination of information from diverse and antago‐
nisticsources.”
215
In Gable v. Patton, the Sixth Circuit upheld a Kentucky
schemethatraised contributionlimitsforthosefacing nonpar‐
ticipating candidates who have exceeded the public financing
systemlimitonexpendituresandmatchedtheadditionalfunds
raised on a two for one basis until the expenditure limit was
reached.
216
Thesystemwassofavorableto participatingcandi‐
datesthat the courtcouldconceive ofonlya narrowset ofcir‐
cumstances in which a candidate would choose not to partici‐
pate(forexample,whereheintendstoexceedtheexpenditures
limitandbelievesthathecanadvancehisopportunity
bymore
thanthreetoone).
217
Nevertheless,itupheldthesystem.
218
Priortolastyear,onlyonecasehadstruck downsuchasys‐
tem. In Day v. Holahan, the Eighth Circuit concluded that a
Minnesota law that increased a candidate’s expenditure limits
and provided additional public funding in response to inde‐
210.524F.3d427,432(4thCir.2008).
211.Id.at436(quotingBuckleyv.Valeo,424U.S.1,92–93(1976)).
212.Id.at438.
213.205F.3d445(1stCir.2000).
214.Id.at465.
215.Id.at464(internalquotationmarksomitted).
216.142F.3d940,953
(6thCir.1998).
217.Id.at948.
218.Id.at953;seealsoWilkinsonv.Jones,876F.Supp.916(W.D.Ky.1995).
318 HarvardJournalofLaw&PublicPolicy [Vol.33
pendent expenditures burdened the speech of those making
theindependentexpenditures.
219
ButWRTLIIitselfsuggestsaproblem.Thesesystemsareex‐
plicitlydesignedto“equalize”resources(or,atleast,toinsulate
campaignsfromtheprivatedistributionofwealth)andtodeter
largedonors ororganized interestsfrom spendingmoneyout‐
side the regulated system in an effort to influence elections.
WRTLIIsuggeststhatamajorityofthecurrentCourtdoesnot
believethatsuchexpendituresposeathreatofactualorap par‐
ent corruption. Nor does that majority appear to believe that
regulation of expenditures should seek to “level the playing
field”betweencandidatesandcontendingpoliticalfactions—to
prevent, in
the words of Cass Sunstein, “disparities in wealth
[frombeing]translatedintodisparitiesinpoliticalpower.”
220
TheCourt’sattitudeposesnothreattopublicfinancingitself,
butitmayendangereffortstocountertheconstitutionallypro‐
tected speech of independent organizations engaging in issue
advocacy or candidates who have opted out of such a scheme
and wish to self finance or to raise and spend larger
sums of
money obtained through lawful contributions. What if such
effortsareseenasrestrictionsorpenaltiesonprotectedspeech?
Onwhatbasismighttheybejustifiedifthedesireto“eventhe
playingfield”isunavailable?
III. T
HEPLAYINGFIELDISNOTFLAT:WILL
P
UBLICFINANCINGFADEAWAY?
A. Davisv.FEC:HelpingOneSideBurdenstheOther
Sure enough, yet another mole has sprung up. In Davis v.
FEC, the Supreme Court conside red a challenge to BCRA’s
“Millionaire’sAmendment”—aprovisionthatbothraisedcon‐
tribution limits and lifted caps on coordinated party expendi‐
tures for
candidates facing a self‐financed candidate with a fi‐
219.34 F.3d 1356, 1363–66 (8th Cir. 1994). But the Eighth Circuit has upheld a
lawthat permitted publicly financed candidatesto exceed anexpenditureceiling
iftheirnonparticipatingopponentsraisedfundsinexcessofatriggeramount.See
Rosenstielv.Rodriguez,101F.3d1544(8thCir.1996).However,unlikethe
system
underreviewinDay,theRosenstielschemeprovidednoadditionalpublicfunds.
220.Cass Sunstein, Political Equality and Unintended Consequences, 94
COLUM. L.
REV.1390,1390(1994).
No.1] PublicCampaignFinancing 319
nancialadvantageexceedingatriggeramount.
221
Theseliberal‐
ized limits were to remain in place until the self‐financed ad‐
vantagehadbeeneliminated.
222
The Supreme Court, once again by a 5‐4 vote, held that the
amendment impermissibly burdened the right of a self‐
financing candidate to aggressively advocate his election.
223
A
candidatewho choosestoexercise thatrightmust “endurethe
burden that is placed on that right by the activation of a
scheme of discriminatory contribution limits.”
224
This burden
couldnot,intheviewofthemajority,bejustifiedbyaninterest
in avoiding real or apparent corrupt ion.
225
Self‐financed candi‐
dates,itreasoned,cannot“corrupt”themselves.
226
And that ended the matter. The majority, once again, flatly
rejectedthenotionthatrestrictionsonspeechcouldbejustified
by a desire to “level electoral opportunities for candidates of
different personal wealth.”
227
As in WRTL II, this “broader”
definition of corruption or interest in creating a more egalitar‐
iansystemofcampaignfinancewasdeemedinsufficienttosup‐
port the abridgment of speech stemming from asymmetrical
contributionlimits.Intheviewofthemajority,onlytheinterest
intheprev ent ionofactual
orapparentcorruptionisco mpel ling:
On the contrary, in Buckley, we held that “[t]he interest in
equalizing the financial resources of candidates” did not
provide a “justification for restricting” candidates’ overall
campaign expenditures, particularly where equalization
“might serve...to handicap a candidate who lacked sub‐
stantialnamerecognitionorexposureofhis
viewsbeforethe
start of the campaign.” We have similarly held that the in‐
terest “in equalizing the relative ability of individuals and
groups to influence the outcome of elections” cannot sup‐
portacaponexpendituresfor“expressadvocacyoftheelec‐
221.Davisv.FEC,128S.Ct.2759,2766(2008).
222.Essentiallythelawcalledforcalculationofanumberreferredtoasthe“op‐
position personal funds amount” (OPFA) obtained by adding each candidate’s
expenditureofpersonalfundsto50%ofthefundsraisedfromcontributors.Ifone
candidate enjoyed
an advantage in excess of $350,000, the asymmetrical limits
would apply to the disadvantaged candidate until the OFPA advantage was
eliminated.Id.at2766n.5.
223.Id.at2774.
224.Id.at2772.
225.Id.at2773.
226.Id.
227.Id.
320 HarvardJournalofLaw&PublicPolicy [Vol.33
tion or defeat of candidates,” as “the concept that govern‐
mentmayrestrictthespeechofsomeelementsofoursociety
inordertoenhancetherelativevoiceofothersiswhollyfor‐
eigntotheFirstAmendment.”
228
Suchanobjective,accordingtoJusticeAlito,wouldhave“omi‐
nous implications because it would permit Congress to arro‐
gate the voters’ authority to evaluate the strengths of candi‐
datescompetingforoffice.”
229
Hecontinued:
Different candidates have different strengths. Some are
wealthy;othershavewealthysupporterswhoarewillingto
make large contributions. Some are celebrities; some have
thebenefit ofa well‐knownfamily name. Leveling electoral
opportunities means making and implementing judgments
about which strengths should be permitted to contribute to
theoutcome
ofanelection.TheConstitution,however,con‐
fers upon voters, not Congress, the power to choose the
Members of the House of Representatives, and it is a dan‐
gerous business for Congress to use the election laws to in‐
fluencethevoters’choices.
230
Finally, the asymmetrical limitations at issue in Davis coul d
notbejustifiedtoremedythedisadvantagethatrestrictionson
campaign contributions and coordinated expenditures imp ose
upon candidates who are not wealthy.
231
As in WRTL II, the
Courtheldthatrestrictionsonprotectedspeechcannotbejusti‐
fied by a desire to “mitigate the untoward consequences of
Congress’sownhandiwork.”
232
Justice Stevens, joined by Justices Souter, Ginsburg, and
Breyer,concurredinpartanddissentedinpart.
233
Thoughonly
Justice Stevens would have abandoned Buckley’s distinction of
contributions and expenditures,
234
the four dissenters did not
see the asymmetrical limits as a burden on the self‐financing
candidate:
228.Id.(quotingBuckleyv.Valeo,424U.S.1,48–49,56–57(1976)).
229.Davis,128S.Ct.at2773.
230.Id. at 2774 (citations omitted); accord First Nat’l Bank of Boston v. Bellotti,
435U.S.765,791n.31(1978).
231.Id.at2773–74.
232.Id.at2774.
233.Id.at
2777(Stevens,J.,concurringinpartanddissentinginpart).
234.Id.at2777–79.
No.1] PublicCampaignFinancing 321
TheMillionaire’sAmendmentquietsnospeechatall.Onthe
contrary,itdoesnomorethan assisttheopponent ofaself‐
funding candidate in his attempts to make his voice heard;
this amplification in no way mutes the voice of themillion‐
aire, who remains able to speak as loud
and as long as he
likes in support of his campaign. Enhancing the speech of
the millionaire’s opponent, far from contravening the First
Amendment, actually advances its core principles. If only
onecandidatecanmake himselfheard,thevoter’s abilityto
make an informed choice is impaired. And the self‐
funding
candidate’s ability to engage meaningfully in the political
processisinnowayunderminedbythisprovision.
235
The dissenters challenged the majority’s assertion that only
thegovernment’sinterestinpreventingactualorapparentcor‐
ruptioncouldjustify sucharegulation.
Indeed, we have long recognized the strength of an inde‐
pendent governmental interest in reducing both the influ‐
enceofwealthontheoutcomesofelections,andtheappear‐
ance that wealth alone dictates those results. In case after
case, we have held that statutes designed to protect against
theundue
influenceofaggregationsof wealthon thepoliti‐
calprocess—wheresuchstatutesareresponsivetotheiden‐
tifiedevil—donotcontravenetheFirstAmendment.
236
“Although,” the dissent continued, “the focus of our cases
has been on aggregations of corporate rather than individual
wealth, there is no reason that their logic—specifically, their
concernsaboutthecorrosiveanddistortingeffectsofwealthon
ourpoliticalprocess—isnotequallyapplicab le inthecontextof
individualwealth.”
237
B. TheImplicationsofDavisandWRTLII
IfWRTLIIensures thecontinued vitalityofindependentex‐
penditures, Davis seems to limit the potential for regulatory
response.It suggeststhat aidingtheopposition isa burden on
protected speech that cannot be justified by a desire to reduce
the
influenceof money and tolevelthe playing field. Ifthat is
so, asymmetrical schemes of public financing that provide ad‐
235.Id.at2780.(citationomitted).
236.Id.at2781.
237.Id.
322 HarvardJournalofLaw&PublicPolicy [Vol.33
ditional funding or raise contribution limits in response to in‐
dependentexpendituresare presumablyunconstitutional.
In response to a blog post in which I initially set forth the
argument developed here,
238
a case comment in the Harvard
LawReviewarguesthatasymmetricalfundingcanbesavedby
the distinction between government subsidies and penal‐
ties.
239
At least under certain circumstances, the government
can fund speech without also funding analogous speech. It
can, for example, fund only fami ly planning clinics that do
notcounselpatientsaboutabortion.
240
Itcanconsider“general
standardsofdecency”inmakin ggrantstoartists
241
andforbid
nonprofits that engage in lobbying from receiving tax de‐
ductiblecontributions.
242
In the viewof theHarvard author,the government can also
choose to provide additional funding to those candidates who
face substantial independent expenditures.
243
Davis, according
totheauthor,involvesagovernmentrestrictiononspeech,that
is,thelower(actuallyunchanged)campaigncontributionlimits
applicable to candidates choosing to self‐finance above a cer‐
tain level.
244
Asymmetrical financing, the comment argues, is
not a restriction, but a subsidy that enhances the “speech
power”ofacandidatewhomustcontendwithaself‐financing
opponent.
245
The Harvard author argues that Justice Alito,
givenhisself‐professedjudicialmodesty,couldnothavemeant
to discard, sub silentio, the distinction between subsidies and
penalties
and its “clear doctrinal line” between asymmetrical
restrictionsandasymmetricalfunding.
246
Itcertainlyisthecase tha t,subjecttocertainlimitationsand
under certain circumstances, the government can pick and
238.Shark and Shepherd, http://sharkandshepherd.blogspot.com (June 26,
2008, 13:22 EDT). The same argument was sugges t ed on the same day (several
hours earlier) by Rick Hasen at the Election Law Blog. Election Law Blog,
http://electionlawblog.org/(June26,2008,7:55EDT).
239.TheSupremeCourt,2007Term—LeadingCases,122H
ARV.L.REV.276,375–76
(2008).
240.Rustv.Sullivan,500U.S.173(1991).
241.Nat’l.EndowmentfortheArtsv.Finley,524U.S.569(1998).
242.Reganv.TaxationWithRepresentation,461U.S.540(1983).
243.TheSupremeCourt,2007Term—LeadingCases,supranote239,at381.
244.Id.at383–84.
245.
Id.at384.
246.Id.
No.1] PublicCampaignFinancing 323
choose what speech it will subsidize. It is also the case that
courts have upheld the decision not to fund the expression of
certain points of view. The Supreme Court has, from time to
time,usedthelanguageofpenaltyandsubsidytocharacterize
prohibited
and permitted government responses to private
speech. It is not the case that the distinction between penalties
and subsidies—a branch of the law of unconstitutional condi‐
tions
247
—is readily discerned or consistently applied.
248
It is, in
fact,oneofthemostconfusingareasofFirstAmendmentlaw
249
andcertainlycannotbenavigatedbytheapplic ati o noflabels.
250
Thelanguageofpenaltyandsubsidyisnotitselfveryhelpful
here.BothwerepresentinDavisandarepresentina systemof
asymmetrical public financing. In Davis, one could, with the
majority, characterize the Millionaire’s Amendment as a pen‐
altyonthosewhoexercisetheirconstitutionallyprotectedright
to self finance. Relaxing contribution restrictions for one’s op‐
ponent will certainly be perceived as a penalty and it is well
withinourcustomaryusesoflanguagetocallitsuch.
251
But one might also, with the minority, characterize it as an
attempt to promote (if not exactly subsidize) the speech of
those faced by self‐financed candidates. Indeed, Justice Ste‐
vens’spositionindissentwasthatDavisdidnomorethanem‐
powerresponsivespeech,thatis,enable“speechpower.”
252
Similarly,whileonecanseethegovernmentsubsidycasesas
selective “empowerment” of only certain types of speech, that
247.See Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV.
1413, 1420 (1989) (“Neither the Court nor the commentary...has developed a
satisfyingtheoryofwhatiscoerciveaboutunconstitutionalconditions.”).
248.See Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine Is an
Anachronism (With Particular Reference to Religion, Speech, and Abortion),
70 B.U. L.
REV. 593 (1990) (citing cases inwhich the Courtinexplicitly optednot to employ
theunconstitutionalconditionsdoctrine).
249.Martin H. Redish & Daryl I. Kessler,Government Subsidies and Free Expres‐
sion, 80 M
INN. L. REV. 543, 546 (1996) (proposing a complicated framework that
distinguishesnegativeandpositivesubsidies;positivesubsidiesthatare“policy”
and“auxiliary;”auxiliarysubsidiesthat are “categorical,” “viewpoint–based,”or
subsidiesof“judgmentalnecessity”).
250.CassR. Sunstein,HalfTruthsof the First Amendment, 1993
U. CHI. LEGAL F.
25,39–40(arguingthatthedistinctionbetweenpenaltiesandsubsidies“forcesus
tochaseghosts”andisirrelevant).
251.Kathleen M. Sullivan, Unconstitutional Conditions, 102
HARV. L. REV. 1413,
1420(1989)(“Conclusorylabelsoftentaketheplaceofanalysis.”).
252.Davisv.FEC,128S.Ct.2759,2780(2008)(Stevens,J.,concurringinpartand
dissentinginpart).
324 HarvardJournalofLaw&PublicPolicy [Vol.33
is,asasubsidy,itisjustaseasytocallitapenalty.Thefamily
planningclinic thatwishes toprovide informationabout abor‐
tion must forego government funding as a condition of doing
so.Anonprofitlosesitstax
exemptionforexercisingitsrightto
lobby its elected representatives. Referring to something as a
“penalty” or a “subsidy” is an interpretive choice that is not
guidedbythetermsthemselves.
Although this distinction could be made to turn on whether
governmentcuts achec k, thatseemsoverlyfo rmalisticand,
in
any event, inconsistent with the precedent. Loss of a tax de‐
ductible contribution because of lobbying is not the receipt of
fundsbut, asinDavis, theimposition ofamore oneroussetof
rulesimpactingthesolicitationoffunds.
Thelanguageofpenaltyandsubsidyisaway
ofcharacteriz‐
ing the impact of a selective subsidy or a different set of rules
onthedisfavoredparty.Thus,althoughaspeakerhasnoright
togovernment largesse (subsidy),he does have the right to be
free from undue interference (penalty). Whether one calls a
regulatory scheme a more
attractive set of limitations or a di‐
rect subsidy is not the critical question. What is important is a
judgmentaboutthewayinwhichagovernmentactionimpacts
protectedspeech, and that judgmentmust now be understood
inlightofDavis.
TheprobleminDavis—anditisalsopresent
inanasymmet‐
rical financing system—is that an election is, in the words of
Justice Stevens, a “zero‐sum” game.
253
This characterization is
not true—at least not in the same way—in the government
subsidycases.Thelossofataxexemptionforlobbyingapplies
equally to, say, Wisconsin Right to Life and Planned Parent‐
hood.Althoughonemight arguethatfundingfamilyplanning
clinics that do not provide information about
abortion or sub‐
sidizingartthatisnottransgressive“burdens”thosewhowish
to provide abortion information or lay bare the horror of con‐
ventionalvalues,theharmisquiteindirect.Inanelection,what
helps one side directly and immediately harms the other. The
subsidytoanopponentnecessarilyburdens
thespeaker.
Thus, Davis regarded the benefit (higher contribution limits
and unlimited coordinated expenditures) as “an unprece‐
dentedpenaltyonanycandidatewhorobustlyexercises[hisor
253.Id.
No.1] PublicCampaignFinancing 325
her] First Amendment right”
254
because increased contribution
limitsforone’s opponentconstitutesa “specialandpotentially
significant burden.”
255
Significantly, the Court cited Day v.
Holahan, the only case striking down asymmetrical public fi‐
nancing and expenditure limits, in support of that position.
256
Theburden,itexplained,wasthat“thevigorousexerciseofthe
right to use personal funds to finance campaign speech pro‐
ducesfundraisingadvantagesforopponentsinthecompetitive
context of electoral politics.”
257
Rather than justifying the bur‐
den,theeffortto“levelthe playingfield”byassistingacandi‐
datewhoopposedthespeaker’spositionistheburden.
Itistriggered,moreover,bythedecisiontospeak.Itisnotthe
decision to provide information on abortion that causes a sub‐
sidy
tobeprovidedtoanotherclinicthatdoesnotwishtodoso.
Althoughthelossof thetax deductionsubsidyforanorganiza‐
tion’sdonorsdoesturnonthechoicetospeak(thatis,tolobby),
itdoesnotdosoinawaythatimpairsthe“speechpower”of
the
speaker relative to opposing points of view (although it does
make it more difficult to raise money for other purposes, some
ofwhichmightincludespeech).Particularlyinthecontextofan
election, the effect and intent of such a scheme is to dissuade
constitu ti o nal ly protectedspeechandto
dosoinawaythatthe
Davismajorityregardedwithextremeskepticism.
The latterpoint is also critical. After WRTL II and Davis, the
Courtisunlikely toapplyalinguisticdistinctionbetweensub‐
sidiesandpenaltiesapartfromconsiderationoftheirimpacton
the election context and a
distrust of the ability of incumbent
politicians to neutrally regulate the political process. The “sub‐
sidy”thatisprovided(orthe“penalty”thatisimposed)doesso
in a context that is ripe for mischief and self‐dealing. The rules
that silence election speech are drawn by the incumbents who
will
then get to play by them to win reelection. As the Davis
courtnoted,itis“dangerousbusiness”toallowelectedofficials
toacttominimizesomeelectoraladvantagesandnotothers.
258
A better argument might distinguish Davis by arguing that
the constitutionally protected right is to speak on issues and
254.Id.at2771(Alito,J.,majorityopinion).
255.Id.at2772.
256.Id.;seesupranote219.
257.Davis,128S.Ct.at2772.
258.Id.at2774.
326 HarvardJournalofLaw&PublicPolicy [Vol.33
that the additional subsidy would be provided to a targeted
candidate and not to some individual or organization seeking
topresenttheopposingviewonthepertinentissue.Onecould
arguethattheburdenonthespeakerisan“indirect”burden
in
a way that the burden imposed by the Millionaire’s Amend‐
ment is not. Asymmetrical public financing or “rescue” fund‐
ing does not necessarily pay for amessage advocating the op‐
posing position on the pertinent issue (although it might) but
onlyforamessagesupportingthecandidatewhothe
issuead‐
vocacyisseekingtopersuade.
But that would seem to exalt form over substance. The pro‐
tected interest does not simply involve communication di‐
rected to the targeted candidate but to the public at large as
well. The burden on the constitutionally protected right of the
advocacy organization is
clear. If it chooses to speak, the gov‐
ernment will give money to a candidate who opposes what it
supports. Whether one characterizes this as “direct” or “indi‐
rect” seems wholly beside the point. The bur d en is real and
substantial.AstheEighthCircuitnotedinDay:
[T]heknowledgethatacandidatewhoonedoesnotwantto
be elected will have her spending limits increased and will
receive a public subsidy equal to half the amount of the in‐
dependent expenditure, as a direct result of that independ‐
ent expenditure, chills the free exercise of that protected
speech.
259
Onemightalsoarguethatthestateinterestinregulatingthe
impactofin dependent expendituresisstrongerthanitsinterest
in limiting the advantages of a self‐financed candidate. Pre‐
sumably,a candidate will not be beholdento himself for part‐
ing with some of his own fortune in seeking
public office (al‐
thoughhemaybepartialtothoseinterestsandpoliciesthathe
perceivedtohavehelpedhimaccumulateandmaintainit),but
itishardlyunreasonabletothinkthatacandidatewillperceive
a need to remain on friendly terms with those who supported
hiselectionandwho
mayattempttowieldsimilarinfluencein
futurecampaigns.
There is much that could be asked about whether this is, in
fact,thewayinwhichthepoliticalworldreallyworks.Itisun‐
clear, for example, that interested parties support candidates
259.Dayv.Holahan,34F.3d1356,1360(8thCir.1994).
No.1] PublicCampaignFinancing 327
whose views are tabula rasa, up for auction to whoever offers
the most support. Interested parties may well prefer to invest
in candidates who hold views that they feel are conducive to
theirinterests.
260
It is unclear, moreover, whether the provision of additional
fundingmateriallyreducesthethreatofactualorapparentcor‐
ruption.Providing funds to one’s opponentdoes not, afterall,
change whatever dependence the candidate benefitting from
independentexpenditures has uponthose whofinancedthem.
Thepotentiallycorrupti ng influenceofthese
expenditureswill
be eliminated only if the provision of matching funds or
asymmetrical contribution limits dissuades them from being
made, and that is precisely the effect that Davis found to be
constitutionallyproblematic.
Morefundamentally,thisargumentrestspreciselyonthein‐
terestthatwasrejectedinWRTLII.
Thepossibilityofgratitude,
asopposedtoaquidproquo,wasnotenoughtojustifythere‐
strictionofspeech.ForthefiveJusticesconcurringintheresult
inWRTLII,uncoordinatedindependentexpenditures—atleast
aslongastheycanbeinterpretedtobeissueadvocacy—donot
create a
threat of actual or apparent corruption sufficiently
strong to warrant BCRA’s restrictions on constitutionally re‐
strictedspeech.
261
Asymmetrical financing schemes have also been upheld as
effortstoencouragecandidatestoparticipateinsystemsofpub‐
licfinancing.
262
Onthisview,astatemightofferadditionalhelp
(or relaxed restrictions) to candidates who agree to abide by
whateverlimitationsoptingintothesystemofpublicfinancing
entails.Ifpublicfinancingisseen asaresponsetoactualorap‐
parentcorruption,thenprotectingcandidateswhooptin from
being swamped by independent expenditures might further
thatend.Butthatinterest—thatis,avoidingactualorapparent
corruption—is apparently not enough to justify the restriction
of genuine issue ads. If that is so, it is difficult to see why the
260.SeeNixonv.ShrinkMo.Gov’tPAC,528U.S.377,394–95(2000)(citingcon‐
flictingstudies).
261.FECv.Wis.RighttoLife,Inc.(WRTLII),551U.S.449,457(2007).
262.See,e.g.,Gablev.Patton,142F.3d940,953(6thCir.1998);Rosenstielv.Rod‐
riguez,
101F.3d1544,1546(8thCir.1996).
328 HarvardJournalofLaw&PublicPolicy [Vol.33
encouragement of public financing—which is only a means
ratherthantheend—addsanythingtothestate’sinterest.
263
IV. L
ETTINGTHEMOLESGO:WRTLIIAND
D
AVISASCAUSEFORRELIEF
GiventhesharpdivisionontheCourtandthepossibilityfor
changesinitscomposition,itmaybethatwewillseetheCourt
abandonWRTL II’srejection(repeated in Davis)of anegalitar‐
ian rationale for reform and its expansive protection for indi‐
vidual expenditures. Perhaps it will
retreat from Davis’s treat‐
ment of efforts to achieve equality by providing financial
benefits to a candidate who faces an opponent who has ob‐
tainedadisfavoredformoffinancialadvantage.ButDavisand
WRTL II suggest that it may be time to abandon our genera‐
tion‐longgameof
Whac‐A‐Mole.
Certainly, reasonable regulation of campaign finance is ap‐
propriate, but the more ambitious manifestations of reform
seek to improve participatory democracy in a way suggested
by Justice Breyer in his recent book, Active Liberty. Justice
Breyerargues foran interpretive hermeneuticthatis informed
by what he
believes to be the Constitution’s democratic na‐
ture
264
androotedinwhathecallsthe“libertyoftheancients,”
that is, the participatory self‐government evoked by the citi‐
zens of ancient Athens.
265
In the context of campaign finance
reform, the idea is to actin a way that removes the presumed
improper interference of wealth and to “facilitate a conversa‐
tion among ordinary citizens that will encourage their in‐
formed participation in the electoral process.”
266
Limiting the
influence of money is presumed to build public confidence in
the process, broaden the base of a candidate’s financial sup‐
port, and encourage “greater public participation.”
267
It will,
263.Shortlybeforethefall2008election,adistrictjudgeinArizonafoundthata
challenge to Arizona’s asymmetrical public financing scheme had a substantial
likelihood of success on the merits but declined to enjoin its enforcement due to
the short period of time before the election. McComish v. Brewer, No.
CV‐08‐
1550‐PHX‐ROS,2008WL4629337(D.Ariz.Oct.17,2008).
264.S
TEPHENBREYER,ACTIVELIBERTY46(2005).
265.Id.at5.
266.Id.at46.
267.Id.at47.
No.1] PublicCampaignFinancing 329
the argument continues, help to ensure that a candidate’s fi‐
nancialsupportmorecloselyreflectshispopularsupport.
A full consideration of this objective is beyond the scope of
thisArticle.Butthereare,Ithink,threefatalproblemswith the
project of campaign finance
egalitarianism and the search for
“barometric” equality. The first is the improbability, if not im‐
possibility,ofsuccess.Itishardlysurprisingthatthecollective
publicbodyiswillingtospendhundredsofmillionsofdollars
to influence a government that spends trillions. In fact, the
moneyspentonpolitical
advertisingremainsafractionofwhat
is spent on advertising movies, automobiles, and beer along
with other products and services.
268
Given the stakes, it seems
unlikelythat regulators willbe able tostop money,like water,
from seeking its own level. Even if, for example, reform effec‐
tively prevented donors from purchasing paid media, it could
not prevent them from purchasing the media outlets them‐
selves. Although current doctrine arguably
permits regulation
of broadcast outlets,
269
emerging technologies have multiplied
thewaysinwhichmessagescanbedelivered.
Even if the flow of money could be stemmed, it is unlikely
thatitwillbedoneinawaythatfurtherstheobjectivesofsome
presumablypureformofparticipatorydemocracy.Thereareat
least two stumbling
blocks. As the Court in Davis observed,
270
different candidates have a variety of different advantages.
Manyarewhollyunrelatedtotheparticipationofthecitizenry
in an open public conversation and exchange of ideas. Elimi‐
nating some and not others will benefit certain candidates at
the expense of others. Removing the advantage of those who
can attract
wealthy donors benefits incumbents whose advan‐
tageliesnotonlyintheirexistingnamerecognition,butalsoin
their ability to use the resources of the state and the guise of
268.The size of the advertising industryin the United States was estimated
to be over $150 billion in 2007. Press Release, TNS Media Intelligence, TNS
Media Intelligence Forecas ts 2.6 Percent Increase in U.S. Adverti s in g Spending
for 2007 (Jan. 8, 20 07 ), available at http://www.tns–mi.com/news/01082007.htm.
Spendingon politicaladvertisin gin2008has
been estimatedat$2.6billion.Post‐
ing of Katharine Q. Seelye to The Caucus, http://thecaucus.blogs.nytimes.com
(Dec.2,2008,16:15EST).
269.SeeRedLionBroad.v.FCC,395U.S.367,389(1969).
270.Davisv.FEC,128S.Ct.2759,2774(2008).
330 HarvardJournalofLaw&PublicPolicy [Vol.33
“communicating” with constituents
271
to enhance their own
electoralprospectsandshapepublicopinion.
Reduction of the influence of those who wish to financially
support can didates will benefit celebrities and those who al‐
ready have access to the public. It will enhance the power of
themediaandwhatJohnMcGinniscallsthe“scribal
class.”
272
It
may enhance the prospects of candidates further to the left or
theright whocan attract larger numbersof small donors if, as
seems plausible, it turns out that the ideologically committed
aremorelikelytocontribute.Itmayhelpthoseinapositionto
attract the endorsement of
large membership organizations—
suchasunions—whosemembersarelikelytofollowthecueof
theirleadership.
Wecannoteliminatealloftheseadvantag e stoattainapublic
conversation unsullied by confounding elem ent s unrelated to
thecollectivedeliberationregardingcandidates’ideasandquali‐
fications. There is, in fact, no public conversation and
no prior
distributionofsupport apartfr o m theseconfoundin gelements.
Ofcourse,wishingfortheperfectshould notbetheenemyof
achievingthegood.Butthere isanotherstumblingblockon the
way to Athenian democracy. As th e majority in Davis empha‐
sized, campaign finance rules are not set by
disinterested per‐
sons.
273
It is incumbents, acting on an arcane and technical
topic, who fashion the rules that will govern the process by
which they will seek to retain their offices. It takes a rather
sunny view of human nature to remain sanguine about the
mannerinwhichtheywillundertakethattask.
274
Finally, it is not clear that restricting the speech of groups
thought to be spending “too much” money is consistent with
271.Althoughwefrequentlyhearreferenceto“phony”or“sham”issueads,we
lessoftenhearof“shamnewsletters”distributedthroughthecongressionalfrank‐
ingprivilege.
272.JohnO.McGinnis,AgainsttheScribes:CampaignFinanceReformRevisited,24
H
ARV.J.L.&PUB.POL’Y25,27–28(2000)(referringtothepress,academia,andthe
entertainmentindustry).
273.Davis,128S.Ct.at2774.
274.In fact, one commenter has suggested that Justice Breyer’s position repre‐
sents a Pelagian view of our Augustinian Constitution. William E. Thro, A Pela‐
gian Vision For Our Augustinian Constitution:
A Review of Justice Breyer’s Active
Liberty, 12 J.C.
& U.L. 491, 491–92 (2006). Pelagius was a fifth‐century British
monk who taught that humanity was inherently virtuous and that individuals
could achieve their own salvation. Augustine taught that individuals are fallen
andcanachievesalvationonlythroughthegraceofGod.Id.at491.
No.1] PublicCampaignFinancing 331
democratic principles. One of the purposes of efforts to reduce
the role of money in politics is to bolster populism. But, of
course, themost successful populistsare those who canusethe
coercive authority of the state to deliver benefits to a working
majority.
Itisnotclearwhytippingthebalancetowardthema‐
jorityismorelegitimatethantheexanteallocationofresources.
There is a great danger to democracy from the majority’s
temptationtoserve their selfinterest atthe expense of the mi‐
nority. In the absence of robust
constitutional protection for
property rights and economic liberty, the ability of the pros‐
perousminoritiestobeheard(asopposedtobuyingpoliticians
through contributions) may be one way in which populism is
preventedfromdescendingintodemagoguery.
275
The wealthy, as Judge Richard Posner argues, are “not a
monolith” and, in any event, “lack the votes.”
276
Wealthy do‐
norsmustcraftmessagesthatappealtothemassesand,ifthose
messages provoke or call for a populist response, other candi‐
dates will seek to raise money from the much larger pool of
nonwealthysmalldonors.
277
Another way to achieve the good and not the perfect is the
Madisonian notion of allowingfactions to check each other. As
explainedinFederalistNo.10,thetriumphoftheprivateinterest
over the public good—of partiality over justice—might well in‐
clude the tyranny of the majority: “The apportionm en t
of taxes
onthevariousdescriptionsofproperty”providesthe“opportu‐
nity and temptation...[for] a predominant party[] to trample
ontherulesofjustice”because“[e]veryshillingwithwhichthey
over‐burdentheinferiornumber,isashillingsavedtotheirown
pockets.”
278
The“causes offaction,”—definedascontendingpar‐
ties often driven by self interest—“cannot be removed; and [so]
reliefisonlytobesoughtinthemeansofcontrollingitseffects.”
279
275.Cf.McGinnis,supranote272,at29–30(citingMANCUR OLSON,POWER AND
PROSPERITY: OUTGROWING COMMUNIST AND CAPITALIST DICTATORSHIPS 15–16
(2000)) (suggesting that “societies grow faster and have less conflict when the
political poweris diffused throughout...those involved in producing the social
surplusofsociety”).
276.R
ICHARDA.POSNER,HOWJUDGESTHINK331(2008).
277.Id.
278.T
HEFEDERALISTNO.10,at51(JamesMadison)(J.R.Poleed.,2005).
279.Id.(emphasisinoriginal).
332 HarvardJournalofLaw&PublicPolicy [Vol.33
Madisondespairedofthenotionthat“enlightenedstatesmen”
would choose the public over the private interest.
280
For Madi‐
son,iffactionscouldnotbeeliminated,thecontendinginterests,
through competition, may come to check one another. Applied
here, the idea is that candidates may benefit from a variety of
advantages that we may regard as more or less legitimate.
Rather than trusting interested parties to choose
among them,
wearebetterservedbyregulationwitha lighterhand.
TheInternethasmadethelatterapproachfarmoreeffective,
asdemonstratedbythefundraisingsuccessofPresidentBarack
Obama.
281
Given thesuccess ofInternet fundraising, itmayin‐
creasinglybethecasethatsmallmoneycounters bigmoney.
282
Although allowing competition between initially unequal par‐
ties seems unlikely to result in a world where the distributi on
ofcontributions andexpenditures reflectssome presumeddis‐
tributionofpublicopinionoroneinwhichthewealthywillnot
give more than the nonwealthy, the “distorting” impact of
wealthmayturn
outtobelessthanfeared.
C
ONCLUSION
The Court’s campaign finance jurisprudence may be a bit
like the weather in my home state of Delaware. If you do not
likeit,thesayinggoes,justwait.Buttheprinciplesunderlying
WRTL II and Davis have a longstandingpedigree in that juris‐
prudence. Expenditures differ from contributions. It
is not the
roleofthestatetolevelthepoliticalplayingfield.Recognizing
theimplication ofthese principles mayremind usthat democ‐
racymaybebetterservedbycompetitionthanbycontrol.
280.Id.
281.ButseeC
AMPAIGNFIN.INST.,REALITYCHECK:O BAMARECEIVEDABOUTTHE
SAME PERCENTAGE FROM SMALL DONORS IN 2008 AS BUSH IN 2004 (2008),
http://www.cfinst.org/pr/prRelease.aspx?ReleaseID=216 (finding that, although
49%ofObama’scontributionswere$200orless,only26%camefromdonorswho
gavelessthan$200intheaggregate).
282.Richard L. Ha sen, Politic al Equality, the Internet, and Campaign Finance
Regulation, 6(1) T
HE FORUM art. 7 (2008), available at http://www.bepress.com/
forum/vol6/iss1/art7/.
