CAMPAIGN FINANCE (Update 1)

Criticism of political-funding practices and calls for further reforms increased in the latter half of the 1980s as the cost of campaigns continued to escalate and repeated fundraising scandals were publicized. Turnover of congressional seats reached an all-time low, in part because challengers found it difficult to compete in expensive media campaigns. The growing number of political action committees contributed most heavily to congressional incumbents, particularly to those in the majority party, and both parties exploited the loopholes found in the federal funding restrictions.

During this period the Supreme Court again considered the constitutionality of existing campaign-finance restrictions, continuing to grapple with the conflict between first amendment liberties and the concern for political equality, a conflict inherent in attempts to regulate political funding. In the mid-1980s, the Court reiterated and even strengthened principles previously established in buckley v. valeo (1976), including the rejection of equalization of political influence as an appropriate rationale for funding restrictions. However, at the end of the 1980s, a majority of the Court for the first time explicitly resolved the conflict by giving preference to equality rather than liberty, possibly signaling that they would view further legislative reforms with greater favor than in the past.

In Federal Election Commission v. National Conservative Political Action Committee (1985) the Court invalidated a federal statute that limited independent expenditures by political committees supporting presidential candidates who accepted public subsidies. Writing for the majority, william h. rehnquist, then an Associate Justice, asserted that "the only legitimate and compelling government interests thus far identified" were preventing the appearance and reality of corruption. Defining the term "corruption" more explicitly than in previous cases, Justice Rehnquist made clear that he was referring to "quid pro quo" arrangements with office holders.

One year later, in Federal Election Commission v. Massachusetts Citizens for Life (MCFL) (1986), the Court held that the federal requirement that independent expenditures by corporations in federal elections be made through voluntary funds given to political committees was unconstitutional as applied to MCFL. However, a change in the premises of a majority of the Justices was evident in Justice william j. brennan's opinion both from the narrowness of the holding and from the lengthy explanation, quite unnecessary to the decision, as to why the restriction could be constitutionally applied to most other corporations.

The dicta from MCFL became a holding when the Court, in austin v. michigan chamber of commerce (1990), upheld the application of a state statute similar to the one at issue in MCFL. According to Justice thurgood marshall's majority opinion, the Chamber was not the kind of ideological corporation that was entitled to First Amendment protection under the reasoning of MCFL because its assets did not necessarily reflect support for its political expression.

The majority in Austin asserted that the compelling interest served by the statute was preventing "a different type of corruption in the political arena: the corrosive and distorting effect of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." In dissent, Justice antonin scalia scoffingly referred to the majority's rationale as "the New Corruption" and accused them of adopting the approach of "one man, one minute." Indeed, the distinction between the compelling interest found in Austin and the interest in equalization of political influence, which had been rejected in Buckley and other cases, is not easy to discern.

By limiting the rationale to situations in which the wealth used for expression "was accumulated with the help of the corporate form," the majority purported to avoid a clash with precedent. Stressing that the state gives corporations the advantages of perpetual life and freedom from personal liability, the Court concluded that it was appropriate to prevent the use of funds amassed with the help of these benefits from unfairly influencing the electoral process. However, Justice anthony m. kennedy pointed out in dissent that the majority's analysis was inconsistent with the reasoning in first national bank of boston v. bellotti (1978), in which the Court had invalidated bans on corporate expenditures in ballot-measure elections. Indeed, the shift in the majority's approach in MCFL and Austin is illustrated by the fact that the Court's opinions in these cases strongly resemble the dissenting opinions in Bellotti. Although Bellotti is distinguishable from MCFL and Austin because the burdens on corporate expression were more severe, the broad principles articulated in Bellotti are clearly at odds with the basic premises of Austin.

The dichotomy between the majority and the dissents in Austin is a classic formulation of the tension between equality and liberty that lies behind all the cases in this area. Because Austin and MCFL represent a shift toward greater attention to political equality, these decisions could open up new possibilities for reform as legislatures in the 1990s struggle with the problems caused by the ever spiraling costs of political campaigns.

Marlene Arnold Nicholson
(1992)

Bibliography

Mutch, Robert E. 1988 Campaigns, Congress and Courts: The Making of Federal Campaign Law. Westport, Conn.: Greenwood Press.

Nicholson, Marlene A. 1987 The Supreme Court's Meandering Path in Campaign Finance Regulation and What It Portends for Future Reform. Journal of Law and Politics 3: 509–565.