United States Constitution

PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution

ARTICLES

Article 1

Section 1
Section 2
Section 3
Section 4
Section 5
Section 6
Section 7

Section 8

Commerce Clause
Dormant Commerce Clause
Taxing and Spending Clause
Necessary and Proper Clause
Additional Enumerated Powers

Section 1
Section 2
Section 3
Section 4

Section 1

Judicial Review
Impeachment of Federal Judges

Justiciability
Exceptions Clause

Section 1

Full Faith and Credit Clause
Privileges and Immunities Clause
Extradition Clause
Fugitive Slave Clause
New States and Other Property
Guarantee Clause

Amendment

Amendment I

Establishment
Free Exercise
Freedom of Speech
Freedom of the Press
Assembly and Petition
Freedom of Religion

Rights of Criminal Defendants
Eminent Domain

Section 1

The Question of Government Action
Birthright Citizenship
Privileges or Immunities Clause
Procedural Due Process
Substantive Due Process
Incorporation of the Bill of Rights
Equal Protection Clause

First Amendment: Freedom of Speech Political Speech

Introduction
Money As Political Speech

Introduction	Important Cases
As Justice Black stated in Mills v. State of Alabama, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Political speech includes discussions of candidates, the form of government, how government should be run, and any other discussion of the political process. These forms of speech are afforded the strongest protection, and usually any restrictions on them are judged by a strict scrutiny standard.Strict scrutiny was applied to just such a restriction in Brown v. Hartlage. The Court held that the voiding of an election due to a candidate’s offering of an idea was unconstitutional. A state corruption law prevented candidates from offering benefits to voters in exchange for votes – in this case, the candidate had promised to work for a lower salary if elected, and the election would be voided if he was found to have violated the statute. The Court determined that any restriction on the offering of ideas by a candidate to the electorate would need to be justified by a compelling state interest and could not unnecessarily infringe protected speech, and that voiding the election over this kind of campaign promise did not meet these standards.It is very difficult for a law limiting pure political speech to meet strict scrutiny, but there are rare moments when it does. In the 1992 decision in Burson v. Freeman, the Court upheld a law prohibiting solicitation of votes or distributing campaign materials within 100 ft of a polling place. The Court held that historically, some restriction on campaigning directly in or around polling places was necessary to protect the right to vote. When balancing the compelling state interest of protecting the right to vote with the right to free expression, the Court found this compromise to be constitutional.	Mills v. State of Alabama (1966)

Introduction

Important Cases

As Justice Black stated in Mills v. State of Alabama, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Political speech includes discussions of candidates, the form of government, how government should be run, and any other discussion of the political process. These forms of speech are afforded the strongest protection, and usually any restrictions on them are judged by a strict scrutiny standard.Strict scrutiny was applied to just such a restriction in Brown v. Hartlage. The Court held that the voiding of an election due to a candidate’s offering of an idea was unconstitutional. A state corruption law prevented candidates from offering benefits to voters in exchange for votes – in this case, the candidate had promised to work for a lower salary if elected, and the election would be voided if he was found to have violated the statute. The Court determined that any restriction on the offering of ideas by a candidate to the electorate would need to be justified by a compelling state interest and could not unnecessarily infringe protected speech, and that voiding the election over this kind of campaign promise did not meet these standards.It is very difficult for a law limiting pure political speech to meet strict scrutiny, but there are rare moments when it does. In the 1992 decision in Burson v. Freeman, the Court upheld a law prohibiting solicitation of votes or distributing campaign materials within 100 ft of a polling place. The Court held that historically, some restriction on campaigning directly in or around polling places was necessary to protect the right to vote. When balancing the compelling state interest of protecting the right to vote with the right to free expression, the Court found this compromise to be constitutional.

Mills v. State of Alabama (1966)

Congress attempted to close post-Buckley loopholes regarding “soft money” by passing the Bipartisan Campaign Finance Reform Act of 2002. Soft money are funds that are not covered by limits on contributions to candidates or committees. Corporations and unions which could not directly donate to a campaign would raise this soft money in large amounts and then donate it to the political party to spend instead. BCFRA prevented this soft money from being used by national political parties or state political parties, restrict ads that were paid for by unions and corporations that supported a candidate, make coordinated between elected officials and unions or corporations be considered contributions, expand the reporting requirements. In response to passing this law, they were sued. The law was challenged, and the case made it up to the Supreme Court as McConnell v. Federal Election Commission.

The Court upheld the vast majority of the law, affirming Buckley and the important interest of preventing corruption and the appearance of corruption rationale. This rationale was supplemented with the Court’s determination that many of the 2002 amendments were necessary to prevent the circumvention of the rules affirmed in Buckley.

Despite the substantial case law mostly upholding Congress’s campaign finance reform efforts, recent trends in the current Court have moved in the opposite direction – overruling a significant number of cases and causing significant controversy. The decision which prompted this major shift is Citizens United v. Federal Election Committee.

Citizens United is a conservative non-profit political action group. During the 2008 election, Citizens United created a film attacking Hillary Clinton, titled “Hillary: The Movie.” The group wanted to show the movie in theatres and through on-demand video services, but the federal government blocked it. The DC District Court held that showing the video violated a section of the BCFRA, the law which had been upheld in McConnell. Specifically, by playing television ads for their film, Citizens was in violation of one section of that law prohibited use of a corporation or union’s general treasury to fund “electioneering communication” within 30 days of a primary or 60 days of a general election.

First the Court overruled Austin, now holding that it was a violation of free speech to discriminate against a speaker simply because that speaker was a corporation. The Court discussed that the main rationale behind Austin was “anti-distortional” – to equalize speech between the public and the wealthy corporations. However, this kind of equalizing rationale had been ruled unconstitutional in Buckley. Additionally, corporations reflected the association of people, so this infringed on the First Amendment right to associate as well.

McDonnell was also partially overruled. The Court found no state interest to justify limiting independent expenditures by corporations. Following a similar line of reasoning to the Buckley case, the Court held that independent expenditures did not create or give the appearance of corruption. With Austin also overruled, there was no reason to specifically limit independent expenditures by corporations either. Without any state interest left remaining, the ban was struck down as unconstitutional.

The Court did uphold one portion as constitutional – the disclosure requirements. Disclosure can be a burden on speech, and the Court analyzed it under a standard which required a substantial relation between the restriction (disclosure) and the significant government interest. Since disclosures do not limit expenditure or contributions and do not prevent speech and also serve the significant interest of keeping the electorate informed, the Court found this provision to be constitutionally acceptable.

This trend towards deregulating finance most recently continued in the 2014 decision McCutcheon v. Federal Elections Commission. This time, aggregate contribution limits were being challenged. Aside from base limits to how much money a person can donate to a candidate, there were also limits to the total amount of money a donor could give to all candidates in total. Several prospective donors challenged this, claiming it in infringed on their First Amendment rights. The plurality held that the only permissible regulation of speech in regards to elections and campaign finance were those which served the compelling government interest in stopping “quid pro qou corruption.” After analyzing the statute, the Court determined that limiting the totals did not aid in this interest and also infringed too heavily on speech, making it unconstitutional. The plurality reasoned that since Congress established a max amount that can be given to a single candidate, then anything within that limit posed no threat of corruption. Without a limit to the total donations, each candidate can still only receive the base maximum allowed. Restricting the total would only limit the number of candidates a person could donate too – restricting their speech and political association – yet would have no effect on the base limit or quid pro quo corruption.

The dissent, written by the liberals of the court, argued for a wider view of corruption – that focusing on quid pro quo corruption was far too narrow. Removing the aggregate limit allows single donors to donate vast amounts of money to a political party, regardless of individual candidate limits. Combined with the earlier Citizens United decision, the dissenters said this decision “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”