Proposals to regulate campaign contributions and candidates' spending
invariably fly the banner of campaign finance "reform." The reformers, however,
frequently have little or no evidence that particular campaign practices cause
any real harm. Instead, they simply posit the existence of the disease-the
corrosive effects of money on the political process-and assume that
restrictions on the use of money will provide the cure. In Missouri, for
example, both the legislature and the voters enacted laws in 1994 that set
limits on political contributions to candidates and on candidates' campaign
expenditures. These laws imposed substantial burdens on political speech and
association, but they did little more than pander to public perceptions about
the amorphous evils of "big money." The legislature and the voters had no
evidence that contributions or expenditures in the prohibited amounts caused
any identified harm, and any cure for problems in the State's elections was
entirely serendipitous. The frank comment of a Missouri legislator that
"[p]erception is more important than what's real" captures the substance of
many measures that masquerade as campaign finance "reform."
The Supreme Court, unfortunately, left the door open in Buckley v.
Valeoto campaign finance reform
measures, like the 1994 Missouri laws, that are grounded on little more than
speculation and the cynical assumption that money necessarily and inherently
corrupts the political process. Although the Buckley Court held that
campaign finance measures are subject to strict scrutiny, it accepted
speculation about corruption and the appearance of corruption as a
justification for regulating campaign contributions. Lawyers for the American Civil Liberties Union of Eastern
Missouri ("ACLU/EM") discovered a means to close the door left open in
Buckley and to provide greater First Amendment protection for political
speech. They persuaded the courts in the Eighth Circuit to supplement
Buckley and to impose a duty on the State to demonstrate that campaign
finance regulations address a "real harm."
Although the Supreme Court did not review these judgments, it endorsed the
Eighth Circuit's new, more demanding First Amendment standard for campaign
In 1994, Missouri limited candidates' total campaign expenditures; it
prohibited candidates from carrying over more than $1000, $2000, or $3000 of
campaign funds from one election to another; and it prohibited candidates from
spending more than $100, $200, or $300 of their personal resources to run for
state and local office. Missouri also restricted campaign contributions. The
State limited contributions to candidates for state and local office on a
sliding scale from $300 to $200 to $100 per election cycle, and it prohibited
elected officials holding certain offices, as well as candidates for these
offices, from accepting contributions during regular sessions of the state
These campaign finance regulations were the product of two sets of amendments
to Missouri's Campaign Finance Disclosure Law. In July 1994, the Missouri legislature enacted Senate Bill
650 and limited campaign contributions and expenditures. On November 8, 1994, the Missouri electorate approved
Proposition A, a ballot initiative that also established campaign finance
regulations. The Missouri Attorney General
ruled that Proposition A, which was to become effective immediately, superseded
Senate Bill 650 to the extent that its provisions were more restrictive and
that, otherwise, Senate Bill 650 would become effective on January 1, 1995.
Senate Bill 650 limited the total amount that candidates could spend to run for
state and local office. Candidates had a
duty to file an affidavit indicating whether they intended to comply with
expenditure limits that ranged from $30,000 to $1,500,000. The legislature imposed two penalties on candidates who
rejected these limits. First, they could accept contributions only from
individuals, but opposing candidates-who agreed to abide by the expenditure
limits-could accept contributions from political parties, political action
committees, corporations, and labor unions, as well as from individuals. Second, candidates who rejected the spending
limits had a duty to file daily reports of contributions and expenditures with
the Missouri Ethics Commission after their expenditures exceeded the prescribed
limit, but candidates who accepted the expenditure limits had no duty to file
daily reports. Candidates who rejected the
spending limits were subject to criminal sanctions for accepting contributions
from sources other than individuals, and for failing to file daily disclosure
In addition to Senate Bill 650's limits on candidates' total campaign
expenditures, Proposition A established two other spending limits. Proposition
A prohibited candidates for various elective offices in Missouri from spending
more than $100, $200, or $300 of their own funds to support their campaigns. Proposition A also regulated the timing of
campaign expenditures and restricted the amount of campaign funds that could be
spent in subsequent elections. It provided that every candidate, within ninety
days of an election, "shall" either turn over to Missouri Ethics Commission or
return to the contributors "any balance of campaign funds in excess of expenses
incurred for the campaign, except for an amount no greater than ten times the
individual contribution limit" applicable to that office. Given individual contribution limits of $100, $200, or
$300, candidates could not retain more
than $1000, $2000, or $3000 of the funds raised in one campaign and could not
carry these funds over for use in a subsequent campaign to express their
Senate Bill 650 limited campaign contributions to candidates for office in
Missouri on a sliding scale ranging from $1000 to $500 to $250. It permitted contributions of up to $1000 for governor
and other statewide offices, as well as for candidates in districts with a
population of at least 250,000; it
permitted $500 contributions for candidates for state senate and candidates for
any office in electoral districts with a population between 100,000 and
250,000; and it permitted contributions of
$250 for candidates for state representative or for offices in districts with a
population of under 100,000. Senate Bill
650 provided that these contribution limits "shall be increased" to take
inflation into account.
Although the contribution limits of Senate Bill 650 were set to go into effect
on January 1, 1995, they were superseded under a ruling of the Missouri
Attorney General by the more restrictive contribution limits of Proposition
A. Proposition A limited campaign
contributions to candidates for office in Missouri on a sliding scale ranging
from $300 to $200 to $100 per election cycle, and it drastically reduced the contribution limits set by
Senate Bill 650 in two ways. First, it reduced the dollar amount of permissible
contributions by as much as seventy percent. It reduced the contribution limit
for governor and other statewide offices from $1000 to $300; it reduced the
contribution limit for districts with a population over 100,000 from $500 to
$200; and it reduced the limit for districts under 100,000 from $250 to $100. Second, Senate Bill 650 permitted
contributions up to its limits in both primary and general elections, but
Proposition A established a single cumulative limit on all contributions made
in a primary election and the succeeding general election. Thus, for example, under Proposition A, a contributor
could have given a gubernatorial candidate only $300 over the primary and
general election combined. Under Senate Bill 650, however, the contributor
could have given a gubernatorial candidate $1000 in the primary election and an
additional $1000 in the general election, for a combined total of $2000.
Although both Senate Bill 650 and Proposition A set contribution limits,
Proposition A did not regulate the timing of political contributions. Senate
Bill 650, however, prohibited "statewide elected official[s]" and members of
the general assembly, and candidates for these offices, from accepting campaign
contributions "during any regular session of the general assembly."
Prospective candidates and potential contributors successfully challenged the
1994 amendments in three cases. In Shrink Missouri Government PAC v.
Maupin (Shrink I), the Court of
Appeals for the Eighth Circuit held that the Missouri limits on candidates'
political expenditures were unconstitutional. In Carver v. Nixon, a district court upheld the $100 to $300 contribution
limits, but the court of appeals held that
these limits on political speech violated the First Amendment. Finally, in Shrink Missouri Government PAC v. Maupin
(Shrink II), a district court held
that the prohibition on campaign contributions during legislative sessions
violated the First Amendment. The ACLU/EM
represented the plaintiffs in Shrink I, and it supported the plaintiff
in Carver with an amicus brief in the court of appeals.
All three cases in large part called for a relatively straightforward
application of the First Amendment standards established in 1976 by the Supreme
Court in Buckley v. Valeo.
Nonetheless, the ACLU/EM persuaded the Court of Appeals for the Eighth Circuit
to impose a new, more rigorous First Amendment standard on the states' power to
regulate political expenditures and contributions. The court of appeals supplemented Buckley's strict
scrutiny standard with a requirement that the state "must do more than simply
`posit the existence of the disease sought to be cured.'" The state "must demonstrate that the recited harms
are real, . . . and that the regulation will in fact alleviate these harms in a
direct and material way."
In Buckley v. Valeo, the Supreme Court set the First Amendment measure
of campaign finance regulation. Although the Court applied strict scrutiny to
both expenditure limits and contribution limits, it drew a fundamental
distinction between governmental power to regulate political expenditures and
governmental power to regulate political contributions. The Court held that (1) limits on independent
expenditures made by individuals or groups to oppose or advocate the election
of candidates, (2) limits on candidates' expenditures from personal and family
funds, and (3) limits on candidates' overall campaign expenditures violate the
First Amendment, but it upheld restrictions on political contributions as a
means of preventing corruption or the appearance of corruption. The Court did not require any showing that the prohibited
contributions caused any harm, and it recognized, in effect, substantial
government power to regulate political contributions and to limit political
speech and association.
The Supreme Court held that campaign expenditure limits are subject to strict
scrutiny because they burden fundamental First Amendment rights of political
association and political expression. A
limit on campaign spending "necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their exploration, and
the size of the audience reached."
Spending limits impose "substantial . . . restraints on the quantity and
diversity of political speech" because "virtually every means of communicating
ideas in today's mass society requires the expenditure of money." Given these burdens, the Court held that
limits on overall campaign expenditures by federal candidates and limits on candidates' personal expenditures violate the First Amendment. The Court also
held that limits on independent expenditures made by individuals or groups to
oppose or advocate the election of candidates violate the First Amendment.
Although the Court also applied strict scrutiny to campaign contribution
limits, it upheld the Federal Election
Campaign Act's $1000 limit on contributions to federal candidates. The Court held that this $1000 limit on
campaign contributions served the government's compelling interest in
"limit[ing] the actuality and appearance of corruption resulting from large
individual financial contributions" and that it "focuse[d] precisely on the
problem of large campaign contributions-the narrow aspect of political
association where the actuality and potential for corruption have been
identified." Congress, however, had
not in fact identified any particular level of political contributions,
much less contributions in excess of $1000, that caused corruption or the
appearance of corruption.
Congress, at most, had some basis for concern about problems created by "large"
contributions in unspecified amounts. Congress set the $1000 limit in response
to reports that in the 1972 national elections "large contributions" had been
"given to secure a political quid pro quo from current and potential
office holders" and in response to "the appearance of corruption stemming from
public awareness of the opportunities for abuse inherent in a regime of large
individual financial contributions."
Congress did not have any evidence that contributions in excess of $1000 were
large enough either to corrupt the recipients or to create the appearance of
The Court, nonetheless, did not look for any evidence in the legislative record
to support the specific $1000 limit, and it did not require the government to
develop any after-the-fact evidence to justify the legislature's decision.
Indeed, the Court disclaimed any concern whether the $1000 limit was
"unrealistically low because much more than that amount would still not be
enough to enable an unscrupulous contributor to exercise improper influence
. . ." It was enough that
Congress thought that some limit on political contributions was necessary;
there would be no judicial "fine tuning" of legislative choices between a $1000
limit and a $2000 limit. In short, the
Court permitted Congress to limit political contributions without any evidence
that contributions in any particular amounts in excess of $1000 caused the
harms, corruption, or the appearance of corruption, that inspired the
The Buckley Court applied strict scrutiny to campaign finance
regulation, but it also accepted speculation about actual corruption or the
appearance of corruption as a justification for limiting political speech and
association. The Court endorsed Congress' power to prohibit contributions in
"large" but unspecified amounts, and then upheld a $1000 contribution limit
without any evidence that contributions in excess of $1000 caused the problem
or appearance of corruption. This judgment created a risk that speculation
about campaign finance problems might be sufficient to justify other
restrictions on political speech and association. Indeed, the Missouri limits on political expenditures and
contributions, adopted in 1994 by the legislature in Senate Bill 650 and by the
electorate in Proposition A, were based onjust such speculation and
conjecture about problems in the electoral process.
Fortunately, however, a significant evolution of First Amendment law provided a
means to close the door left open in Buckley and to protect political
speech. In United States v. National Treasury Employees Union
("NTEU"), the Supreme Court imposed a
heavy burden on government to justify regulation of federal employees'
nonpolitical speech and writing. The government must offer more "than mere
speculation about serious harms." It must
demonstrate that "the recited harms are real . . . and that the regulation will
in fact alleviate these harms in a direct and material way." The challenges to the 1994 Missouri statutes created an
opportunity to transfer this First Amendment requirement to campaign finance
regulation and to force government to justify regulation of political speech,
not on the basis of public perceptions and fears, but instead on the basis of
actual, real world, harms.
The Supreme Court held in NTEU that a prohibition against federal
employeesaccepting honoraria for making appearances, giving speeches,
or writing articles violated the First Amendment. The government's interest
"that federal officers not misuse or appear to misuse power by accepting
compensation for their unofficial and nonpolitical writing and speaking
activities" was "undeniably powerful."
Nonetheless, regulation of federal employees' speech required some evidence
that accepting honoraria caused the harm that the government postulated:
[w]hen the Government defends a regulation on speech as a means to redress past
harms or prevent anticipated harms, it must do more than simply "posit the
existence of the disease sought to be cured." . . . It must demonstrate that
the recited harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way.
Although the government posited the disease (misuse of power), it could not
demonstrate that the acceptance of honoraria by low-level federal employees
caused any real harm. The government had "no evidence of misconduct related to
honoraria in the vast rank and file of [low-level] federal employees," and it
had only "limited evidence of actual or apparent impropriety by legislators and
high-level executives." Accordingly, the
Court held that Congress could not prohibit lower ranking federal employees
from accepting honoraria.
As Justice O'Connor noted, Congress did not have any evidence that the
acceptance of honoraria by low-level federal employees was a problem. There was
no showing "that Congress considered empirical or anecdotal data pertaining to
abuses by lower-echelon executive employees." The government did not have any other evidence of harm.
The government's lawyers cited an official 1992 report, made three years after
the ban on honoraria was imposed, but the Court found that "[i]ts 112 pages
contain not one mention of any real or apparent impropriety related to a lower
level employee." The Court refused to
defer to the government's speculation about the problems caused by low-level
federal employees accepting honoraria. It
insisted that even burdens on nonpolitical expression require "a justification
far stronger than mere speculation about serious harms."
The ACLU/EM lawyers concluded that NTEU could be used to establish a new
First Amendment requirement for regulation of political expenditures and
contributions: the State must demonstrate that campaign finance regulations
address real harms. If the State could not demonstrate that its regulations
addressed real harms, then there was no warrant for any restriction on
political speech or association. If, however, the State demonstrated that its
regulations addressed real harms, then the court should apply Buckley's
strict scrutiny test. The State must
show that it has a compelling interest in rectifying these real harms; that its
regulations are "narrowly tailored;" and that it has considered alternative
means of regulation that would impose fewer burdens on First Amendment
interests. In short, the State "must demonstrate that the recited harms
are real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way."
We argued in Shrink I and in Carver that the State must
demonstrate that the legislature had considered carefully evidence of real
problems and that it had "substantial evidence" of those problems. The State
could not satisfy NTEU's evidentiary requirement with after-the-fact
rationalizations advanced by its counsel at trial. Justice O'Connor had
examined the evidence before Congress to determine in NTEU whether the
acceptance of honoraria by low-level federal employees caused the harm of
misuse of power that the government recited. Similarly, when Justice Kennedy originally stated the
test adopted in NTEU, he turned to the evidence of real harms
considered by the legislature. Justice
Kennedy recognized that courts must accord substantial deference to the
legislature's predictive judgments and findings. Nonetheless, courts must also
"exercise independent judgment when First Amendment rights are implicated," and
they must determine that the legislature "has drawn reasonable inferences based
on substantial evidence."
We also argued that the State must meet this evidentiary burden for measures
like Proposition A, enacted directly by the voters, as well as for measures,
like Senate Bill 650, enacted by the legislature. It is well-settled that
"voters may no more violate the Constitution by enacting a ballot measure than
a legislative body may do so by enacting legislation." Therefore, the State must demonstrate that the
electorate, like the legislature, had considered carefully evidence of real
harms. The fact that a super-majority of the voters had adopted Proposition A
did not in itself satisfy this evidentiary burden. A law enacted by popular vote may in fact be more suspect
than a law enacted by the legislature. The electorate does not have the benefit
of public hearings and legislative deliberations to analyze proposals.
Moreover, voters, unlike legislators, do not take an oath to uphold the
We were confident that Missouri could not meet its burden of demonstrating
"real harm" under NTEU; the problems in the financing of state and local
elections in Missouri were, at best, speculative. The state legislature and
electorate had not considered any evidence of specific problems. Indeed,
neither Senate Bill 650 nor Proposition A even "recited" any particular harms
allegedly to be redressed by their provisions. Even if courts were willing to consider after-the-fact
rationalizations, it seemed unlikely that counsel would be able to fill the
evidentiary void at trial. It would not be sufficient for the State to submit
books of election data from which a court or others might hypothesize
"problems" in the Missouri electoral process. It would not be sufficient for the State to recite a
brief summary of recent so-called "campaign reform" efforts and to make vague
assertions of popular dissatisfaction with Missouri politics. It would not be sufficient for the State's counsel to
assert broadly and without any factual support that "such large sums of money
are now being spent on Missouri campaigns that the vast majority of Missouri
citizens have seen the need to take affirmative steps to refocus those
campaigns away from money and toward the kind of grass-roots campaigning that
is more likely to make the process open, fair, and informative." The State's interests were entirely hypothetical because
there was no evidence, much less any substantial evidence, of any real harms in
the Missouri electoral process.
The ACLU/EM made two efforts to supplement Buckley's First Amendment
standards. In Shrink I, we argued that some evidence of a "real harm"
was a prerequisite for regulation of candidates' political expenditures. Although the district court gave cautious
consideration to this argument, both the district court and the court of
appeals ultimately held that Missouri's spending limits, under a direct
application of Buckley, were invalid. Our second effort, however, was successful. Appearing as
an amicus in Carver, we argued again that the State had a duty under
NTEU to demonstrate that campaign contribution regulations addressed a
"real harm." The court of appeals adopted
the NTEU test, and it found no evidence that contributions to candidates
in excess of the prohibited amounts caused any harm. Although Missouri protested that the Eighth Circuit had
established a new First Amendment hurdle for campaign finance regulation, the
Supreme Court denied review. In Shrink
II, a district court gave full effect to the Eighth Circuit's new First
Amendment standard for regulation of political speech. It held that Missouri's limits on campaign contributions
during legislative sessions violated the First Amendment because the State had
no evidence that such contributions caused any real harm.
In its first case, Shrink I, the ACLU/EM argued that the 1994 Missouri
spending limits violated the First Amendment because the State had no evidence
that any specific amount of candidates' total campaign expenditures, of
candidates' personal expenditures, or of candidates' expenditure of carryover
funds caused any "real harm." The district court expressly noted our argument
that under NTEU the State must "demonstrate that the recited harms are
real." The district court did not,
however, require the State to make any showing that the legislature or the
electorate had any evidence of harm. It did not even require the State to make
any after-the-fact showing that the prohibited political expenditures caused
any real harm. Although we argued "that the state must prove that the
legislature and the electorate explicitly considered the specific wrongs now
claimed to be remedied by the statutes,"
the district court refused to require "specific, historical factual proof." In fact, the district court considered
certain election reports attached as exhibits to the one of the State's briefs
even though there was "no evidence provided that the legislature or the
electorate actually considered or even had available" these reports. The election reports, however, did "nothing
to prove or disprove either defendants' or plaintiffs' case." Thus, the State, notwithstanding its reliance on
"after-the-fact rationalizations,"did not make any showing that the three campaign expenditure limits
addressed any real harms in the Missouri electoral process.
Instead of requiring the State to make some showing of a "real harm" under
NTEU, the district court gave the State "the benefit of the doubt" and
assumed "that in fact the justifications offered [by counsel were] the reasons
for the passage of the laws." Although the
district court tested the statutes in light of the harms "recited" by the State
on cross motions for summary judgment, it held that the three limits on
candidates' spending were invalid under Buckley. Limits on direct expenditures by candidates with their
own money were "clearly unconstitutional" under Buckley. Limits on candidates' total campaign expenditures
"clearly violate the rule of Buckley, and cannot withstand strict
scrutiny." Missouri's spending limits
"restrict the quantity of political speech" and, like the spending limits held
invalid in Buckley, do not promote any state interest "in preventing
quid pro quo corruption." Finally,
the restrictions on the expenditure of carryover campaign funds could not be
justified under Buckley. The
requirements that candidates "spend down" their campaign funds rather than
carrying them forward for use in a subsequent election "limit political speech
by telling a candidate when he or she must speak," and they "do nothing
to further the goal of preventing corruption." The court of appeals affirmed the district court's
judgment and its application of Buckley, and it did not discuss our
NTEU argument that the State must "demonstrate that the recited harms
The NTEU argument that the district court cautiously skirted in
Shrink I, carried the day in Carver. The court of appeals adopted
our argument that the State has a duty to demonstrate that its campaign finance
regulations address real harms. It
found that the State had no evidence that the Proposition A contribution limits
addressed any "real" harm or disease. Although the court of appeals noted the
State's after-the-fact arguments at trial regarding the harms allegedly caused
by campaign contributions, it expressly
determined that judicial deference to predictive judgments about harms would
turn on the evidence before the legislature or the electorate. Moreover, the court accepted our argument that laws, like Proposition A, adopted
directly by the electorate through initiatives or referenda were not entitled
to the same level of deference as legislative measures.
The court of appeals recognized that "[t]he question [was] not simply that of
some limits or none at all" on campaign
contributions. Both Proposition A and Senate Bill 650 limited campaign
contributions, but "Proposition A
limits [were] only ten to twenty percent of the higher limits in Senate Bill
650." The narrow question was, then,
whether lowering the contribution limits set by Senate Bill 650 to the levels
set by Proposition A addressed any "real harm." The court of appeals, invoking the NTEU
standard, found that "[t]he record is barren of any evidence of a harm or
disease that needed to be addressed between the limits of Senate Bill 650 and
those enacted in Proposition A." The
State had "no evidence as to why the Proposition A limits of $100, $200, and
$300 were selected;" it had "no
evidence to demonstrate that the limits were narrowly tailored to combat
corruption or the appearance of corruption associated with large campaign
Although the State had "no evidence" that contributions above Proposition A's
limits caused any "real harm," the State, ironically, demonstrated that these
contribution limits would have a substantial adverse effect on candidates'
ability to communicate their political views. Proposition A's $100, $200, and
$300 contribution limits per election cycle were "dramatically lower than the
$2000 limit per election cycle approved in Buckley." Although the contribution limits approved in
Buckley would have barred only about 5.1% of the contributions made in
the preceding 1974 election, the Proposition A limits would have effected "a
much higher percentage of contributors." Given "no evidence" that contributions in excess of
Proposition A's limits caused any "real harm" and the substantial evidence of
their adverse effects on political speech, the court of appeals concluded that
the State had not carried its burden of justification: "the State has failed to
carry its burden of demonstrating that Proposition A will alleviate the harms
in a direct and material way."
The court of appeals also rejected the State's contention that it should defer
to the voters' judgments about the harms in the political process to be cured
by contribution limits. The Supreme
Court in NTEU had adopted verbatim Justice Kennedy's original statement
of the "real harm" test in Turner Broadcasting System, Inc.v.
FCC, and it was true, as the State
argued, that Justice Kennedy had recognized that courts "must accord
substantial deference to the predictive judgments" of the legislature. The court of appeals, however, refused to
accord the "same deference to Proposition A adopted through the initiative
process by the citizens of Missouri."
Deference "requires that courts ascertain that the legislative body `has drawn
reasonable inferences based on substantial evidence.'" The voters, however, had no evidence, much less any
substantial evidence, to support their predictive judgments. Moreover, the reasons for judicial deference to
"legislative enactments" do not apply to "proposals adopted by initiative."
Shortly after the court of appeals adopted the NTEU test in
Carver, a district court held that Missouri's limits on campaign
contributions during legislative sessions violated the First Amendment. In
Shrink II, the court insisted
that the State must do more than posit the existence of some problem or disease
and must do more than recite some harm; the State must demonstrate that the
prohibited campaign contributions cause some "real harm." The district court
reviewed the State's after-the-fact evidence at trial, and it also considered
the evidence available to the legislature. Missouri, however, simply had no
evidence of any contributions, either to incumbents or to challengers, during
the regular legislative sessions that were actually corrupt or that created the
appearance of corruption.
In Senate Bill 650, the Missouri legislature prohibited statewide elected
officials, state senators, state representatives, and candidates for those
offices from accepting campaign contributions during any regular session of the
general assembly. The district court
found that this "temporal ban on contributions . . . effectively
eliminates a candidate's contributions intake for four and one-half . . .
months." Given this "severe impact" on
political association and communication, the State had to prove that the limit
on political contributions was "narrowly tailored to serve a compelling state
interest." Although Buckley held
that avoiding corruption or the appearance of corruption was a compelling
interest, the State had a duty under
NTEU to show some "real harm" that triggered this compelling interest.
Missouri, however, had no evidence that the acceptance of contributions during
the legislative sessions caused any "real harm." At the one day trial, the
State's attorneys had not presented any after-the-fact evidence of actual
corruption caused by political contributions made during a legislative session
or that such contributions created the appearance of corruption. Although "two witnesses testified in
general terms of their belief that the public perceives the acceptance of
contributions during the legislative session as `inappropriate,'" the State did
not provide any "factual basis . . . for these witnesses'
perception. . . ." The
State did not have any "examples or incidents of actual corruption linked to
such contributions nor incidents wherein `innocent' contributions were
perceived by the public as being given and accepted for a corruptive intent." Newspaper articles about political
contributions "fail[ed] to demonstrate a pervasive problem with contributions
during the legislative session and the public's negative viewpoint of such
More importantly, the legislature did not have any evidence that contributions
made during its sessions caused any "real harm." The district court found that
the State had not demonstrated that "any evidence was presented to [a joint
legislative campaign finance reform committee] regarding actual corruption or
the appearance of corruption and the eradication of this harm by an in-session
ban on campaign contributions." The
court could not find any evidence that the legislature made "any attempt . . .
to access and analyze the public's views on acceptance of contributions during
the general assembly's regular session." In short, Missouri had "wholly failed to establish a
constitutionalnexus between the interest they [sought] to further, i.e.
[prevention of] actual corruption or the appearance of corruption, and the vast
prohibition on acceptance of contributions during the general assembly's
regular session." Given the absence of
any evidence that the prohibited contributions caused any "real harm," the
State had "failed to carry [its] burden of demonstrating that [the statute
would] alleviate actual corruption or the appearance of corruption in a direct
and material way."
Shrink I, Carver, and Shrink II-the three Missouri
campaign finance cases-have established a new First Amendment requirement. In
the Eighth Circuit, campaign finance reformers will have to do more than recite
a list of harms in order to regulate political expenditures or contributions.
Instead, they must "demonstrate that the recited harms are real." This NTEU standard protects
political speech against legislation and initiatives that merely pander to
unproved specters of campaign ills, and it leaves government free to address
actual campaign finance problems. Although courts and commentators have, as
yet, taken little notice, the Supreme Court in Colorado Republican Federal
Campaign Committee v. Federal Election Commission applied the same standard
to a national campaign finance regulation. If, as many campaign finance reformers hope, the Court
reconsiders Buckley, the three Missouri cases and Colorado
Republican suggest strongly that any new restrictions on political speech
must be narrowly tailored responses, not to public clamoring, but to real harms.
In its petitions for review in Shrink I and Carver, Missouri
recognized correctlythat the Eighth Circuit had established a new
standard for campaign finance laws: the states must justify regulation of
political speech, not on the basis of public perceptions and fears, but instead
on the basis of actual, real world harms. The State complained that the Eighth Circuit's adoption
of NTEU "impose[d] a substantial obstacle to campaign finance reform
efforts" because states would not be able to show that either the legislature
or the electorate had considered evidence of "real" campaign finance harms. Missouri, and most other states, would
not be able to demonstrate real harm because they do not make formal
legislative history. Moreover, if
"providing evidence to support an act of the state legislature may be
difficult, proving the `initiative history' for measures adopted through the
initiative process is virtually impossible." Missouri does, indeed, have reason to be concerned
about the need, not for any particular type of legislative history or
"initiative history," but for evidence that the legislature or the electorate
actually considered "real" campaign finance harms. Although the district court
in Shrink I expressly refused to impose this requirement, the court of
appeals in Carver and another district court in Shrink II
considered the question whether the legislature or the electorate had any
evidence of actual harm, as well as after-the-fact rationalizations offered by
the state's counsel at trial.
Regardless whether the court of appeals ultimately requires the State to
demonstrate that the legislature or the electorate had some evidence of real
harm or permits the State, through counsel at trial, to build an after-the-fact
case that campaign finance regulations address a real harm, it has established
an important new First Amendment bulwark for political speech and association.
The State's failure to demonstrate that Proposition A's contribution limits
addressed any "real harm" proved fatal in Carver. Similarly, the State's
failure to demonstrate that the acceptance of contributions during legislative
sessions caused any "real harm" proved fatal in Shrink II.
To say that the Missouri legislature in Senate Bill 650 and voters in
Proposition A had no evidence of any harm caused by the campaign practices that
they prohibited is not to deny that some practices may be harmful; that the
harm might be identified; and that narrowly tailored regulations might be
devised. If, for example, campaign contributions during legislative sessions
cause some "real harm," then surely it is not too much to require the state to
make the type of showing that the district court found wanting in Shrink
II. If, however, the State can make
no showing that such contributions cause any "real harm," then it is hard to
understand how the State could have any interest, compelling or otherwise, in
prohibiting them. Absent some evidence of "real harm," would-be campaign
finance reformers should address public perceptions of corruption or other
harms with narrowly tailored regulations, like disclosure provisions, that
respect our nation's commitment, under the First Amendment, to open, robust
Although the ACLU/EM successfully supplemented Buckley's First Amendment
protection of political speech with the NTEU requirement that states
must "demonstrate" that campaign finance regulations alleviate "real harms,"
others are busy laying the groundwork to expand governmental regulation of
political speech. The Brennan Center for Justice at New York University School
of Law, to take but one prominent example, is now waging a "full-court press"
to force the Supreme Court to overrule Buckley's First Amendment
protection of candidates' political expenditures. Of course, given broad agreement that Buckley's
distinction between contributions and expenditures is false and that both
contributions and expenditures are political speech, there is some risk that the Court might instead
overrule Buckley's approval of Congress' power to regulate
contributions. It is, in short, not clear which way the tree will
fall--governmental power to regulate "both contributions and expenditures-or
Fortunately, there are strong reasons to believe that the tree will fall on the
First Amendment side of protecting both political contributions and political
expenditures. Indeed, although some courts continue to assess campaign finance
regulations exclusively under the Buckley framework, a few other courts have now followed the Eighth
Circuit's lead and have augmented First Amendment protection of both political
expenditures and contributions. The Court of Appeals for the District of
Columbia Circuit, for example, held that regulation of political contributions
requires "evidence" of harm. In a
similar vein, the Oregon Supreme Court held that $100 and $500 contribution
limits were invalid under the state constitution in part on the ground that the
state had no evidence that campaign contributions caused corruption.
Most importantly, the Supreme Court, albeit with little fanfare, has adopted
the same evidentiary requirement for campaign finance regulations as the Eighth
Circuit. In Colorado Republican Federal Campaign Committee v. Federal
Election Commission, the Court followed Buckley and held that limits
on "independent" expenditures by political parties in national elections
violate the First Amendment. The Court,
however, did more than simply reaffirm and apply Buckley's First
Amendment standard; it imposed a duty on the government to demonstrate that
independent expenditures by political parties caused some harm or problem. The Court found that neither Congress,
nor the government's lawyers at trial, had any evidence that independent
expenditures by political parties caused any problem of corruption. This evidentiary requirement, largely
ignored by most lower courts and commentators, might well be read as implicitly overruling
Buckley's approval of Congress' power to regulate contributions on the
basis of speculation about corruption or the appearance of corruption. Even if it is premature to conclude that
the Buckley tree has already fallen on the First Amendment side,
Colorado Republican confirms the Eighth Circuit's decision to supplement
Buckley's First Amendment standards and to require that restrictions on
political speech are a response to real problems, not merely to public
[*] Professor of Law, Washington University.
A.B., Princeton University, 1969; J.D., Columbia University, 1973. The author
was co-counsel for the American Civil Liberties Union of Eastern Missouri
("ACLU/EM") in two of the three principal cases discussed below. See
infra note 36 and accompanying text.
[1.] Missouri State Senator Jim Mathewson,
testifying before a state legislative committee, supported campaign
contribution limits because the perception of the voters who had overwhelmingly
favored such limits in an initiative was more important than the reality that
the limits were "silly." See Virginia Young, Campaign Money Limits
Look Good, ST. LOUIS POST-DISPATCH, Apr. 10, 1997, at 4B.
[15.] Proposition A limited
"contributions" to candidates for office in Missouri on a sliding scale from
$100 to $200 to $300 per election cycle (seeinfra text at notes
25-27), and it had the effect of limiting candidates' personal expenditures
because the term "contribution" was defined to included "[a] candidate's own
money or property used in support of the person's candidacy . . ."
MO. ANN. STAT. § 130.011(12)(a) (West Supp. 1998). As a
result, with the exception of expenses for "food, lodging, travel, and payment
of any fee necessary to the filing for public office," candidates for state and
local office in Missouri could not spend more than the prescribed amounts of
their own funds in their efforts to be elected. Id.
Senate Bill 650 also established contribution limits. See MO. REV.
STAT. § 130.032 (1996); see infra text at notes 19-23. These
limits, however, were superseded by the more restrictive contribution limits of
Proposition A. After the Proposition A contribution limits were held
unconstitutional (see infra text at notes 102-23), the contribution
limits set by Senate Bill 650 took effect and limited contributions by
candidates to their own campaigns. See MO. ANN. STAT.
§§ 130.011(12)(a), 130.032.1 (West Supp. 1998). The Missouri
legislature amended Senate Bill 650's contribution limits in 1997 to remove the
limits on the amounts that candidates could contribute to their own campaigns.
See S.B. 16, 89th Gen. Ass., § A; see MO. ANN. STAT.
§ 130.032.1 (West Supp. 1998) (contribution limits apply to "any
person other than the candidate").
[18.] Senate Bill 650 also limited
candidates' expenditure of carryover campaign funds. See MO. REV.
STAT. § 130.038 (1996). This provision, which was initially
superseded by the more restrictive provision of Proposition A, was repealed in
1997. See S.B. 16, 89th Gen. Ass., § A.
[19.] See MO. ANN. STAT.
§ 130.032.1 (West Supp. 1998).
§ 130.032.1(1), (6) (West Supp. 1998).
[21.] See id.
§ 130.032.1(2), (5) (West Supp. 1998).
[22.] See id. § 130.032.1(3), (4)
(West Supp. 1998).
[24.] See supra note 9 and
accompanying text. After Proposition A's contribution limits were held
unconstitutional (see infra text at notes 102-23), Senate Bill 650's
contribution limits, which had been superseded under the ruling of the Missouri
Attorney General, took effect. See MO. ANN. STAT. § 130.032.1
(West Supp. 1998).
[26.] The categories for different
contribution limits in Proposition A and Senate Bill 650 were not identical.
Senate Bill 650 permitted a higher level of contribution ($1000) for candidates
in districts over 250,000; Proposition A subjected candidates in all districts
over 100,000 to a $200 limit. Compare MO. ANN. STAT. § 130.032.1
(1), (6) (West Supp. 1998), with MO. REV. STAT. § 130.100
[27.] Proposition A limited contributions
"per election cycle," and Senate Bill 650 limited contributions "in any one
election." Compare MO. REV. STAT. § 130.100 (1996),
with MO. ANN. STAT. §§ 130.032, 130.032.4 (West Supp.
1998); see also MO. ANN. STAT. § 130.011(15) (West Supp. 1998)
(definition of "election"); id. § 130.011(16) (West 1997)
(definition of "election cycle") (the 1997 amendment deleted the definition of
"election cycle"). See generally MO. ANN. STAT. § 130.011
(West Supp. 1998).
[28.] MO. ANN. STAT. § 130.032(4)
(West 1997). After a district court held that this provision violated the First
Amendment (see infra text at notes 124-37), the Missouri legislature
repealed it. See S.B. 16, 89th Gen. Ass., § A; see MO.
ANN. STAT. § 130.032 (West Supp. 1998).
[36.] The author of this Article and Frank
Susman were co-counsel for the ACLU/EM, and Denise Field worked extensively on
both cases. This Article states the opinions and analysis of the author, and it
does not purport to present the views of Mr. Susman, Ms. Field, the ACLU/EM, or
the national ACLU.
[39.] Id. (quoting United States v.
National Treasury Employees Union ("NTEU"), 513 U.S. 454, 475 (1995), quoting
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)).
[40.] Id. (quoting NTEU, 513
U.S. at 475 (emphasis added)).
[41.] See Buckley, 424 U.S. at 14-23
("expenditure ceilings impose significantly more severe restrictions on
protected freedoms of political expression and association than . . .
limitations on financial contributions").
[46.] See id. at 54-59. The Court
found that there was "[n]o governmental interest . . . sufficient to justify
the restriction on the quantity of political expression" imposed by campaign
expenditure limits, and it specifically rejected the arguments that any
interest "in equalizing the financial resources of candidates" or "in reducing
the allegedly skyrocketing costs of political campaigns" could justify limits
on candidates' campaign spending. Id. at 55-57.
Although the Court upheld a public financing scheme for presidential elections
that included an expenditure limit, it expressly noted that this expenditure
limit was valid only because it was tied directly to an offer of public
financing. See id. at 57 n.65, 90-109.
[47.] See id. at 51-54. The Court held
that a "ceiling on personal expenditures by candidates on their own behalf"
interferes with the candidate's "right to engage in the discussion of public
issues and vigorously and tirelessly to advocate his own election." Id.
at 52. This restraint could not be justified as an attempt to curb the
corruption or appearance of corruption of political candidates. See id.
at 53. In fact, "the use of personal funds reduces the candidate's dependence
on outside contributions and thereby counteracts the coercive pressures and
attendant risks of abuse to which . . . contribution limitations are directed."
Id. (footnote omitted).
[48.] See id. at 39-51. Although the
Court subsequently upheld one very narrowly tailored restriction on independent
expenditures by corporations in support of candidates, it has never wavered
from the fundamental proposition that limits on candidates' campaign spending
violate the First Amendment. Compare Austin v. Michigan Chamber of
Commerce, 494 U.S. 652, 655-61 (1990), withBuckley, 424 U.S. at
[49.] Campaign contribution limits are
subject to strict scrutiny because they burden fundamental First Amendment
rights of political association and political expression. See Buckley,
424 U.S. at 14-29; accord Citizens Against Rent Control v. Berkeley, 454
U.S. 290, 298 (1981) ("Contributions by individuals . . . [are] beyond question
a very significant form of political expression . . . [and] regulation of First
Amendment rights is always subject to exacting judicial scrutiny.").
[50.] SeeBuckley, 424 U.S. at
14-29. The Court also upheld a $5000 limit on contributions by political
committees to candidates and a $25,000 limit on total contributions by an
individual during any calendar year. See id. at 35-36, 38.
[51.] Id. at 26, 28 (emphasis added).
The Court found that there wasno connection between the compelling
interest in avoiding corruption and limits on candidates' campaign
expenditures. See id. at 55 ("The interest in alleviating the corrupting
influence of large contributions is served by . . . contribution limitations
and disclosure provisions rather than by . . . campaign expenditure
ceilings."). In Austin v. Michigan Chamber of Commerce, the Court did
recognize a connection between limits on independent expenditures by
corporations in support of candidates and corruption. 494 U.S. 652, 660 (1990).
The Austin Court, however, did not question the understanding in
Buckley that limits on candidates' expenditures are not related to the
government's interest in avoiding corruption.
[52.] Buckley, 424 U.S. at 26-27. The
Supreme Court did not discuss any evidence that contributions of any particular
amount had been given to secure a political quid pro quo. It simply noted that
"the deeply disturbing examples surfacing after the 1972 election demonstrate
that the problem is not an illusory one," and cited two pages and three
footnotes in the court of appeals' opinion that "discussed a number of the
abuses uncovered after the 1972 elections." Id. at 27 & n.28. The
court of appeals identified the amount of only one contribution, a $2,000,000
contribution from the dairy industry to President Richard M. Nixon's 1972
re-election campaign. See Buckley v. Valeo, 519 F.2d 821, 839-40 &
nn.36-40 (D.C. Cir. 1975).
[55.] Although the Buckley Court did
not address the empirical question whether contributions over $1000 caused any
identifiable harm, it did consider evidence of the actual effect of this
contribution limit on political speech. The Court recognized that "[g]iven the
important role of contributions in financing political campaigns, contribution
restrictions could have a severe impact on political dialogue if the
limitations prevented candidates and political committees from amassing the
resources necessary for effective advocacy." Id. at 21. There was,
however, "no indication" that the $1000 limit would have "any dramatic adverse
effect" because only 5.1% of all contributions to congressional candidates in
1974 had been made in contributions exceeding $1000. Id. at 21 &
n.23, 26 n.27. Moreover, it seemed likely that "some or all" of those funds
"could have been replaced through efforts to raise additional contributions
from persons giving less than $1000." Id. at 26 n.27. In addition to
considering the actual effect of the $1000 contribution limit on candidates'
ability to communicate their views, the Court also considered the effect of
this contribution limit on incumbents and challengers. The record, however, did
not provide any basis for concluding that the $1000 limit favored incumbents
over major-party, minor-party, or independent challengers. See id. at
[56.] See Citizens Against Rent
Control v. Berkeley, 454 U.S. 290, 296-97 (1981) (Buckley authorizes
limits on political activity to address the "perception of undue influence
oflarge contributors to a candidate").
[59.] Id. (quoting Turner Broad. Sys.,
Inc. v. FCC, 512 U.S. 622, 664 (1994)).
[60.] The Court had suggested in one
post-Buckley decision that mere speculation about harms would not be
sufficient to justify a $1000 limit on a political action committee's
independent expenditures in support of a presidential candidate. See
Federal Election Comm'n v. National Conservative Political Action Comm.,
470 U.S. 480, 498 (1985) ("On this record, . . . an exchange of political
favors for uncoordinated expenditures remains a hypothetical possibility and
[65.] Id. at 485 (O'Connor, J.,
concurring in the judgment in part and dissenting in part); see id. at
483 (Congress relied on reports that did not note "any problems, anecdotal or
otherwise, stemming from the receipt of honoraria by rank-and-file Executive
[67.] See id. at 467 n.11 ("The
honoraria ban . . . deters an enormous quantity of speech before it is uttered,
based only on speculation that the speech might threaten the Government's
[68.] Id. at 475; see id. at
475-76 n.21 ("Deferring to the Government's speculation about the pernicious
effects of thousands of articles and speeches yet to be written or delivered
would encroach unacceptably on the First Amendment's protections.").
[69.] Courts in the Eighth Circuit had
recognized that, under Buckleyv. Valeo, 424 U.S. 1 (1976) (per
curiam), and its progeny, regulations of political speech must be "narrowly
tailored" to serve a "compelling" state interest. See e.g., Day v.
Holahan, 34 F.3d 1356, 1361 (8th Cir. 1994), cert. denied, 115 S. Ct.
[72.] The NTEU test quoted directly
Justice Kennedy's plurality opinion in Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 664 (1994). Seesupra note 62 and accompanying
[73.] Turner Broad. Sys., Inc.,512 U.S. at 666 (Kennedy, J. plurality opinion).
[74.] Citizens Against Rent Control v.
Berkeley, 454 U.S. 290, 295 (1981); see U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779 (1995) (holding unconstitutional congressional term
limits adopted directly by state voters).
[75.] Seventy-four percent of the voters in
the November 1994 elections approved Proposition A. See Carver v. Nixon,
72 F.3d 633, 640 (8th Cir. 1995). There were many reasons for voter approval of
Proposition A, some of which, like a desire to level the playing field, are
themselves unconstitutional, and others, like controlling spiraling campaign
costs, that are not sufficiently compelling to justify restrictions on
political speech. See Buckley v. Valeo, 424 U.S. 1, 48-49, 54, 56, 57
(1976) (per curiam). Thus, the mere fact that a majority of the electorate
adopted Proposition A could not satisfy the State's duty to show that it had a
[76.] See U.S. CONST. art. VI, cl. 3;
MO CONST. art. III, § 15.
[77.] Senate Bill 650 did not include any
statement of legislative findings. Similarly, Proposition A did not include a
preamble identifying and describing the problems that the various provisions of
this initiative were intended to address, and it offered no explanation how the
various regulations were tailored to accomplish these objectives.
[78.] In Shrink I, Missouri filed a
stack of election reports with their reply brief. See Memorandum and
Order at 2, Shrink Missouri Government PAC v. Maupin, 892 F. Supp. 1246 (E.D.
Mo. 1995) (No. 4:CV815 CDP). The district court ultimately concluded that this
raw data did "nothing to prove or disprove either defendants' or plaintiffs'
case." Shrink I, 892 F. Supp. at 1250.
[79.] See Memorandum In Support of
Defendants' Motion For Summary Judgment at 2-3, 4-5, Shrink Missouri Government
PAC v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995) (No. 4:95CV815 CDP).
[80.] Id. at 5 (footnote omitted).
Although counsel intoned this hypothetical state interest in lofty terms, the
Supreme Court had previously held that any interest "in reducing the allegedly
skyrocketing costs of political campaigns" could not justify limits on
candidates' campaign spending. Buckley, 424 U.S. at 57.
[90.] Id. The district court rejected
any contention that the "wrongs" to be remedied must by identified "by
including `findings' in the laws themselves or by, for example, presenting
evidence of legislative history or testimony about the intent of the electorate
or of the legislature . . ." Id. Missouri, and other states
"where the legislature does not collect or preserve legislative history, could
never meet [this] burden . . ." Id.
[91.] Id. The State did not present
any other evidence. Id.
[94.] Id. at 1250; see id. at
1249 (State had not "provided any evidence that either the state legislature or
the electorate actually considered those justifications [advanced by the State
at trial] in enacting Senate Bill 650 or Proposition A.").
[95.] See id. at 1251-54. The court
also held that a statute regulating candidates' campaign advertisements
violated the First Amendment. See id. at 1254-56. The State did not
appeal this judgment. See Shrink I, 71 F.3d 1422, 1423 n.2 (8th Cir.
[96.] See Shrink I, 892 F. Supp. at
1251. The district court also found that Missouri had made "no attempt to
provide any justification" for "this direct limitation on a candidate's own
political speech." Id.
[98.] Id. at 1252. The district court
held that the State's statutory scheme is "coercive because it withdraws an
important source of private campaign funding otherwise available to
candidates." Id. It can not be justified under "Buckley's
rationale for upholding spending limits in return for public financing" because
"Missouri provides no matching or public funds to any candidates."
[100.] Id. at 1254 (emphasis in
original). Even if limiting the power of incumbency was a compelling interest
under Buckley, the district court found that the Missouri statute "is
not narrowly tailored to serve that interest." Id. The State's interest
in "`equaliz[ing]' the spending power of the rich and poor" was not compelling
under Buckley. Id.
[102.] See Carver v. Nixon, 72 F.3d
633, 638 (8th Cir. 1995) (quoting the NTEU test as set out in the
ACLU/EM amicus brief); see supra text accompanying notes 69-80.
[103.] In Shrink I, we argued that
the State had a duty under NTEU to show that the legislature, or the
electorate, had considered real harms. See supra text accompanying notes
89-90. In Carver, we suggested that the question whether the state could
rely on "after-the-fact rationalizations" offered at trial as evidence of these
harms or whether there had to be some evidence that the legislature or the
electorate had considered these harms was moot. The district court had given
the State an opportunity at trial to make some showing that Proposition A's
contribution limits addressed some "real harm," and the State had come up empty
handed. See Brief of the American Civil Liberties Union of Eastern
Missouri as Amicus Curiae in Support of Appellant at 14-15 n.7, Carver
v. Nixon, 72 F.3d 633 (8th Cir. 1995) (No. 95-2608).
[113.] Id. at 643 (citation
omitted). The court of appeals noted that "[t]he State presented testimony at
trial about a $420,000 contribution from a Morgan Stanley political action
committee to various races in north Missouri." Id. at 642. It concluded,
however, that "[a] $42,000 contribution is a far cry from the limits [$100 to
$300] in Proposition A" and that the state's other examples "involve[d]
individual conduct leading to criminal prosecution." Id.
[114.] Id. at 641-42; see
Buckleyv. Valeo, 424 U.S. 1, 24 (1976) ($1000 limit "applies to
aggregate amounts contributed to the candidate for each election-with
primaries, run-off elections, and general elections counted separately."). The
court of appeals noted the ACLU/EM's determination that "after adjusting for
inflation, Proposition A's $300 limit is 6 percent of the limit per election
cycle considered in Buckley, the $200 limit is 4 percent of the
Buckley limit per election cycle, and the $100 limit is only 2 percent
of the Buckley limit per election cycle." Carver, 72 F.3d at 642
[115.] Carver, 72 F.3d at 643;
see supra note 55. The "State's own evidence" showed that 19% to 35.6%
of the contributors in various 1994 Missouri elections gave more than the
amounts permitted by Proposition A. See Carver, 72 F.3d at 643-44.
[116.] Carver, 72 F.3d at 644
(citation omitted); see id. ("The State made no showing as to why it was
necessary to adopt the lowest contribution limits in the nation and restrict
the First Amendment rights of so many contributors in order to prevent
corruption or the appearance of corruption associated with large campaign
[121.] Id. at 644 (quoting Turner
Broad. Sys., Inc., 512 U.S. at 666).
[122.] The court of appeals found that
"[t]here is simply no evidence in the record identifying the source of
Proposition A, whether it was an individual or a group, the process of its
development, nor the reasons for the particular dollar limits" and that "there
is no evidence of the details of the campaign waged in support of the
initiative." Carver, 72 F.3d at 644.
Legislative bodies consist of elected representatives sworn to be bound by the
United States Constitution, and their legislative product is subject to veto by
the elected executive, either President or Governor. The process of enactment,
while perhaps not always perfect, includes deliberation and an opportunity for
compromise and amendment, and usually committee studies and hearings. These are
substantial reasons for according deference to legislative enactments that do
not exist with respect to proposals adopted by initiative.
Id. at 644-45. Seesupra notes 74-76 and accompanying text
(additional reasons why popular measures are entitled to less deference than
[137.] Id. at 1424. The court also
held that the Missouri statute was "unconstitutionally vague." Id. at
[138.] Carver v. Nixon, 72 F.3d 633, 638
(8th Cir. 1995) (quoting NTEU, 513 U.S. 454, 457 (1995)).
[139.] 116 S. Ct. 2309 (1996); see
infra notes 153-58 and accompanying text.
[140.] Missouri sought review in Shrink
I in part on the ground that the court of appeals had adopted a new
"evidentiary requirement." Petition For Writ Of Certiorari at 26-29, Nixon v.
Shrink Missouri Government PAC, 71 F.3d 1422 (8th Cir. 1995) (No. 95-1524);
see Reply In Support Of Petition For Writ Of Certiorari at 4-5, Nixon v.
Shrink Missouri Government PAC, 71 F.3d 1422 (8th Cir. 1995) (No. 95-1524)
(complaining about the "Eighth Circuit's decision to demand some unspecified
kind of additional evidence"). Similarly, the State sought review in
Carver in part on the ground that the Eighth Circuit had imposed "an
evidentiary requirement that is entirely absent from Buckley." Petition
For Writ Of Certiorari, Nixon v. Carver, 72 F.3d 633 (8th Cir. 1995) (No.
95-1258); see id. at 25-26; see also Brief of the States of
Kentucky As Amici Curiae On Petition For Writ Of Certiorari at 20, Nixon v.
Carver, 72 F.3d 633 (8th Cir. 1995) (No. 95-1258) (amicus brief for nine states
and two cities arguing that, contrary to Buckley, the Eighth Circuit had
imposed a "burden upon the State or local government to prove why it selected a
particular contribution limit lower than other available alternatives.").
[141.] Petition For Writ Of Certiorari at
25, Nixon v. Carver, 72 F.3d 633 (8th Cir. 1995) (No. 95-1258).
[142.] Petition For Writ Of Certiorari at
27-28, Nixon v. Shrink Missouri Government PAC, 71 F.3d 1422 (8th Cir. 1995)
[143.] Id. at 28. Missouri noted
that, under state statutes and case law, the text of an initiative does not
identify its purpose, and that "nothing in the formal initiative process
creates a record of the findings or goals of either the proponents or
circulators of the measure, or of the citizens who vote for its passage."
[144.] Comparesupra text at
notes 88-90 with text at notes 102-04, 124-36.
[145.] See supra text at notes
130-37. A recent Arkansas district court decision suggests the ways in which a
state might satisfy the Eight Circuit's "real harm" standard. See
Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997) (upholding a $100 per
election contribution limit for certain non-statewide elections on grounds that
the State had "substantial evidence" of the need for this limit).
[146.] The Missouri legislature amended the
State's campaign finance disclosurerequirement in 1997 and established
an electronic reporting system. See MO. ANN. STAT.
§§ 130.046, 130.057 (West Supp. 1998).
[147.] See, e.g., Rosenkranz,
Campaign Reform: The Hidden Killers, THE NATION, May 5, 1997, at 5;
Jack W. Germond & Jules Witcover, A Full-Court Press On Campaign
Cash, NAT'L J., Dec. 7, 1996, at 2656.
[148.] See Colorado
Republican Fed. Campaign Comm. v. Federal Election Comm'n, 116 S. Ct. 2309,
2325-28 (1996) (Thomas, J., concurring in the judgment and dissenting in part)
("[a] contribution is simply an indirect expenditure; though contributions and
expenditures may thus differ in form, they do not differ in substance");
Buckley v. Valeo, 424 U.S. 1, 241-42 (1976) (per curiam) (Burger, C.J.)
("contributions and expenditures are two sides of the same First Amendment
coin"); Lillian R. BeVier, Money and Politics: A Perspective on the First
Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045, 1062-65
[150.] See e.g., Kentucky Right to
Life, Inc. v. Terry, 108 F.3d 637, 648-51 (6th Cir. 1997), cert. denied,
118 S. Ct. 162 (1997) (upholding campaign contribution limits under
Buckley without addressing the question whether the State had any
evidence that contributions in excess of the prohibited amounts caused any real
[151.] See Blount v. SEC, 61 F.3d
938, 944 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 1351 (1996)
(recognizing government's duty to demonstrate that "the ills it claims the rule
addresses in fact exist and the rule will materially reduce them"(citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)) and
finding that the particular harm, conflict of interest, was self-evident). The
District Court for the District of Columbia subsequently held that $50 and $100
campaign contribution limits violated the First Amendment. National Black
Police Ass'n v. District of Columbia, 924 F. Supp. 270 (D.D.C. 1996),
vacated and remanded, 108 F.3d 346 (D.C. Cir. 1997). There was no
evidence to support these contribution limits, and the court, following
Carver, expressly refused to defer to the predictive judgments of the
legislature, which had not considered any "solid evidence" about the need for
and the potential effects of the $50 and $100 contribution limits. See id.
at 281-82, 285. The court of appeals found that the enactment of
legislation increasing the contribution limits mooted the case, and it vacated
the district court's judgment. See 108 F.3d at 348, 354.
The Carver/NTEU requirement of "real harm" will be raised to
challenge both Alaska and Colorado campaign finance regulations. See
Alaska Civil Liberties Union v. Alaska, No. 3AN-97-CI (Superior Court, 3d
Judicial District); Durham v. Colorado (D. Colo.), No. 96-WY-2973).
[152.] See Vanatta v. Kiesling, 931
P.2d 770, 785-87 (Or. 1997).
[153.] See 116 S. Ct. 2309 (1996).
An expenditure made by a political party and that is not coordinated with a
candidate is an "independent" expenditure. See id. at 2313. Seven
members of the Court, in three opinions, supported the Court's judgment that
limits on a political party's "independent" expenditures violated the First
Amendment. Justice Breyer announced the judgment of the Court and delivered an
opinion, joined by Justice O'Connor and Justice Souter, that limits on
"independent" expenditures violate the First Amendment. Four other members of
the Court would have held that limits on both "independent" and "coordinated"
expenditures violate the First Amendment. Justice Kennedy, joined by The Chief
Justice and Justice Scalia, supported this broader holding. See id. at
2321 (Kennedy, J., Rehnquist, C.J., & Scalia, J., concurring in the
judgment and dissenting in part). Justice Thomas, also joined by the Chief
Justice and Justice Scalia, supported this broader holding. See id. at
2323 (Thomas, J., Rehnquist, C.J., & Scalia, J., concurring in the judgment
and dissenting in part).
[154.] In two of the three opinions
supporting the Court's judgment (seesupra note 153), six members
of the Court expressly adopted Justice Kennedy's statement for a plurality in
Turner Broadcasting System, Inc. v. FCC of the government's duty to
demonstrate that regulations of speech address a real harm. 116 S. Ct. at 2317
(Breyer, J., O'Connor, & Souter, JJ.) (citing Turner Broad. Sys.,
Inc., 512 U.S. at 661-63 (Kennedy, J.)), see Colorado Republican,
116 S. Ct. at 2331 (Thomas, J., Rehnquist, C.J., & Scalia, J.,
concurring in the judgment and dissenting in part) (citing Turner Broad.
Sys., Inc., 512 U.S. at 664 (Kennedy J.)). Although Justice Kennedy
did not cite his Turner Broadcasting System test in his Colorado
Republican opinion, there is no reason to believe that he would object to
the application of his test to campaign finance regulations. SeeColorado Republican, 116 S. Ct. at 2322-23 (Kennedy, J., Rehnquist,
C.J., & Scalia, J., concurring in the judgment and dissenting in part).
There would seem to be only two members of the Court who disagree with the
imposition of a duty on the government to demonstrate that campaign finance
regulations address a real problem. Seeid. at 2332 (Stevens, J.,
and Ginsburg, J.) (urging "special deference to [Congress'] judgment on
questions related to the extent and nature of limits on campaign spending.");
see alsoid. at 2329 n.9 (Thomas, J.) (rejecting deference to
Congress as amounting to "letting the fox stand watch over the henhouse."). In
NTEU, a majority of the Court adopted the test stated by Justice Kennedy
for a plurality in Turner Broadcasting System, and the courts in the
Eighth Circuit subsequently invoked the NTEU statement of the
government's duty to show some "real harm." Seesupra notes 88,
102 & 129 and accompanying text.
[155.] See Colorado Republican, 116
S. Ct. at 2317 (Breyer, J., O'Connor, & Souter, JJ.) (noting that "[t]he
Government does not point to record evidence or legislative findings suggesting
any special corruption problem in respect to independent party expenditures");
see id. at 2331 (Thomas, J., Rehnquist, C.J., & Scalia, J.,
concurring in the judgment and dissenting in part) (noting that "[t]he
Government . . . has identified no more proof of the corrupting dangers of
coordinated expenditures than it has of independent expenditures").
[156.] The lower courts, with only one
exception, have not yet recognized that Colorado Republican imposes a
duty on the states and the national government to demonstrate that campaign
finance regulations address a real problem. See American Constitutional
Law Found. v. Meyer, 120 F.3d 1092, 1105 (10th Cir. 1997) (state disclosure
provisions not necessary to address any problem of fraud because state had not
made any showing that existing regulations did not adequately cure this
[158.] The Court, albeit in the context of
the Fourth Amendment, has recently reaffirmed the requirement that government
must act on the basis of real, not hypothetical, problems. See Chandler
v. Miller, 117 S. Ct. 1295, 1303 (1997) (holding that compulsory drug testing
of candidates for certain state offices violated the Fourth Amendment where
"[n]othing in the record hints that the hazards [the state] broadly describe[s]
are real and not simply hypothetical."); see also Glickman v. Wileman
Bros. & Elliot, Inc., 117 S. Ct. 2130, 2150 (1997) (Souter, J., dissenting)
(under Turner Broadcasting System, Inc., 512 U.S. at 664, the government
has an "obligation to establish the empirical reality of the problems it
purports to be addressing" in order to justify an underinclusive regulation of
commercial speech); cf. Timmons v. Twin Cities Area New Party, 117 S.
Ct. 1364, 1372 (1997) (noting that "elaborate, empirical verification of the
weightiness of the State's asserted justifications" is not required where an
election law does not impose severe burdens on associational interests).