Reevaluating Campaign Finance on a State by State Basis: A First Amendment Analysis

In the mid 1970s, the intersection of campaign finances and the perception of the ideal democratic system perplexed the nation. Congress attempted to address the issue in the later days of Nixon’s presidency with the Federal Election Campaign Act (FECA) amendments of 1974. In early 1975, James Buckley, a former senator from the state of New York, spearheaded a lawsuit against Francis Valeo, the Secretary of the Senate and representative of the United States Federal government, and argued that the limits imposed by the 1974 amendments violated the First Amendment right to freedom of speech. The court approached the case in a way that aimed to tackle this specific form of corruption (or the appearance thereof). Ideals of democracy, they contended, required public officials to prioritize the needs of the public over an obligation to few. In his concurrence, Justice Thurgood Marshall argued that there is a reasonable expectation that a candidate who received thousands of dollars from a corporation would aim to pass legislation benefiting the same company. Still, Buckley set the precedence for linking political contributions to the First Amendment. Justice Potter Stewart articulated the relationship by stating, “We are talking about speech, money is speech and speech is money.”[1] In this pithy statement, Justice Potter Stewart established the letter of Buckley, and, whereas subsequent campaign finance cases have cited Justice Stewart’s standard, the court cases have ignored the spirit behind the Buckley opinion.

Perhaps the greatest development in campaign finance law after Buckley was established in McCutcheon v. FEC. Shaun McCutcheon, a private businessman, wished to donate to a total of twenty-eight federal candidates in addition to non-candidate oriented organizations. He had already donated $33,088 to sixteen federal candidates and $25,000 to the Republican Party, a non-candidate oriented organization. McCutcheon, however, wished to contribute to an additional twelve candidates, which would have brought his total over the aggregate limit of $46,200 set forth in BCRA, and consequently brought a suit against the FEC. A plurality opinion by Chief Justice Roberts and Justices Scalia, Kennedy, and Alito ruled for McCutcheon and eliminated the aggregate limit placed on individuals.

However, the Chief Justice failed to realize that the First Amendment right to contribute does not extend to all persons. It does not suggest that the Court has held that this right is absolute, but rather that the Court has ignored developments in jurisprudence since Buckley. Indeed, the Court has held in Bluman v. FEC that foreigners cannot contribute to federal elections and even extended a similar ruling in the now infamous Citizens United when the Court disallowed foreign companies from contributing to elections.[2] As such, the Chief Justice has failed to realize the difference between an individual endorsing multiple candidates and an individual endorsing candidates for whom he could not vote.

There are, notably, two examples of individual states that have made an attempt to limit outside money in their elections—fittingly, the dis-contiguous states of Alaska and Hawaii. The Alaskan law, which is soon to be in front of the Ninth District Court of Appeals, sets limits on the degree to which candidates may rely on out-of-state contributions. It is no surprise that states such as Alaska, which hope to address the overall rise in out-of-state expenditure, would seek to amend the current regulations for out-of-state funding to candidates. Alaskan law is predominantly originated from a measure taken by Oregon in 1994 after Ballot Initiative 6 was passed. The measure “allowed candidates to use or direct only contributions which originate from individuals who at the time of their donations were residents of the electoral district of the public office sought by the candidate.” In 1995, the Court of Appeals struck down the entire measure in VanNatta v. Keisling after the plaintiffs launched a challenge on grounds of the First Amendment and the 14th Amendment.[3]

As the law appears before the Ninth District, the Alaskan Supreme Court ruling is of great significance in determining the future precedence for funding state elections. First, the Alaskan Supreme Court identified the standard of the court to evaluate on a case-specific basis, which provides a specific criterion by which to evaluate potential corruption. The Court found as follows:

“Nonresident contributions may be individually modest, but can cumulatively overwhelm Alaskans' political contributions. Without restraints, Alaska's elected officials can be subjected to purchased or coerced influence which is grossly disproportionate to the support nonresidents' views have among the Alaska electorate, Alaska's contributors, and those most intimately affected by elections, Alaska residents. These restraints therefore limit the "potential for distortion." We hold that this is a sufficiently compelling state interest.”[4]

To solve the issue of how to regulate out-of-state campaign funding in state elections, Alaskan courts can provide a standard that allows an alternate consideration. Whereas the courts, including Chief Justice Roberts in McCutcheon, have relied on the aforementioned “speaker-neutral” standard of First Amendment, courts have begun consider the spirit of Buckley, namely the identification of an underlying principle to preserve democratic self-governance. In fact, Alaska and Hawaii, states that are anomalies in their treatment of out-of-constituency contributions, have not seen percentage of contributions reaching the levels of Wisconsin and other contiguous states in a statistically significant way. What is important, and what will be the bulk of future considerations of state-initiated campaign finance laws is the Buckley standard that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”[5]

[1] Robert E. Mutch, Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law (New York: Praeger, 1988), 55.

[2] Bluman v. FEC; Citizens United v. FEC.

[3] VanNatta v. Keisling.

[4] Andrew Hyman, “Alaska Gives Ninth Circuit the Cold Shoulder: Conflicts in Campaign Finance Jurisprudence,” University of Pennsylvania Law Review 152, no. 4 (2004): 1453–82,1454-8.

[5] Buckley v. Valeo.