"'No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.'" Burdick v. Takushi, 504 U.S. 428, 441, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964)); see also Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 179, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) ("[V]oting is of the most fundamental significance under our constitutional structure."). However, States may prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives," Art. I, § 4, cl.1, and the Supreme Court has recognized that States retain the power to regulate their own elections. Burdick, 504 U.S. at 433, 112 S.Ct. 2059; Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). Thus, "'as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.'" Id. (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)). Common Cause Indiana v. Individual Members of IEC, 800 F. 3d 913 (7th Cir. 2015).
A state election law, "whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree — the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). To subject every voting regulation to strict scrutiny would "tie the hands of States seeking to assure that elections are operated equitably and efficiently." Burdick, 504 U.S. at 433, 112 S.Ct. 2059. Therefore, we must apply a "more flexible standard" when considering a challenge to a state election law, and must weigh:
"the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."
Id. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). This balance means that, if the regulation severely burdens the First and Fourteenth Amendment rights of voters, the regulation "must be 'narrowly drawn to advance a state interest of compelling importance.'" Id. (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711, (1992)). When the state election law "imposes only 'reasonable, nondiscriminatory restrictions' upon the rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions." Id. (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564). Common Cause Indiana v. Individual Members of IEC, ibid.
Since Buckley v. Valeo, the Supreme Court has instructed us to review different kinds of campaign finance regulations with different degrees of scrutiny. 424 U.S. 1, 19-25, 44-45, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); see McCutcheon v. FEC, ___ U.S. ___, 134 S.Ct. 1434, 1444, 188 L.Ed.2d 468 (2014) (plurality opinion); McConnell v. FEC, 540 U.S. 93, 134-38, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled in part on other grounds by Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Laws that limit a person's independent expenditures on electoral advocacy are subject to strict scrutiny. McCutcheon, 134 S.Ct. at 1444 (citing Buckley, 424 U.S. at 44-45, 96 S.Ct. 612). Under that standard, "the Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated interest." Id.; see, e.g., Citizens United, 558 U.S. at 339-41, 130 S.Ct. 876. Wagner v. Federal Election Commission, 793 F. 3d 1 (DC Cir. 2015).
Laws that regulate campaign contributions, however, are subject to "a lesser but still 'rigorous standard of review,'" McCutcheon, 134 S.Ct. at 1444 (quoting Buckley, 424 U.S. at 29, 96 S.Ct. 612), because "contributions lie closer to the edges than to the core of political expression," FEC v. Beaumont, 539 U.S. 146, 161, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003). "Under that standard, '[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.'" McCutcheon, 134 S.Ct. at 1444 (emphasis added) (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612); see Beaumont, 539 U.S. at 161-62, 123 S.Ct. 2200; SpeechNow.org v. FEC, 599 F.3d 686, 692 (D.C.Cir.2010) (en banc). Wagner v. Federal Election Commission, ibid.
The Supreme Court has repeatedly applied this "closely drawn" standard to challenges to campaign contribution restrictions. [Footnote omitted.] And it has repeatedly (and recently) declined invitations "to revisit Buckley's distinction between contributions and expenditures and the corollary distinction in the applicable standards of review," McCutcheon, 134 S.Ct. at 1445. [Footnote omitted.] See also, e.g., SpeechNow.org, 599 F.3d at 696. Wagner v. Federal Election Commission, ibid.
The Supreme Court expressly rejected th[e] argument [that in cases where contributions are banned entirely strict scrutiny should apply]. [I]n FEC v. Beaumont, the Court concluded that both limits and bans on contributions are subject to the same "closely drawn" standard. 539 U.S. at 161-63, 123 S.Ct. 2200. "This argument," the Court said, "overlooks the basic premise we have followed in setting First Amendment standards for reviewing political financial restrictions: the level of scrutiny is based on the importance of the 'political activity at issue' to effective speech or political association." Id. at 161, 123 S.Ct. 2200 (quoting FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 259, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986)). "It is not that the difference between a ban and a limit is to be ignored; it is just that the time to consider it is when applying scrutiny at the level selected, not in selecting the standard of review itself." Id. at 162, 123 S.Ct. 2200. Indeed, although the plaintiffs insist that "[t]he closest case" to [the facts at issue] is McConnell v. FEC, which struck down a ban on contributions by persons under the age of eighteen, Pls. Br. 39, McConnell itself applied the "closely drawn" test, citing Beaumont. See McConnell, 540 U.S. at 231-32, 124 S.Ct. 619. Wagner v. Federal Election Commission, ibid.
Because free-flowing political debate is "integral to" our system of government, "'there is practically universal agreement that a major purpose of th[e] [First] Amendment was to protect the free discussion of governmental affairs, ... of course includ[ing] discussions of candidates.'" Buckley, 424 U.S. at 14, 96 S.Ct. 612 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). [Footnote omitted.] This agreement "reflects our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'" Id. (quoting N. Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). The right to speak freely about political issues, public policy, and candidates for public office has both individual and associational aspects and "'has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" Id. at 15, 96 S.Ct. 612 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971)). Wisconsin Right to Life, Inc. v. Barland, 751 F. 3d 804 (7th Cir. 2014).
To implement this vital constitutional protection, Buckley [ ] announced some limiting principles applicable to all campaign-finance laws. First, the government's authority to regulate in this area extends only to money raised and spent for speech that is clearly election related; ordinary political speech about issues, policy, and public officials must remain unencumbered. See id. at 42-44, 96 S.Ct. 612; see also id. at 78-80, 96 S.Ct. 612. Wisconsin Right to Life, Inc. v. Barland, ibid.
Second, because political speech is at the core of the First Amendment right, overbreadth and vagueness concerns loom large in this area, especially when the regulatory scheme reaches beyond candidates, their campaign committees, and political parties. To protect against an unconstitutional chill on issue advocacy by independent speakers, Buckley held that campaign-finance regulation must be precise, clear, and may only extend to speech that is "unambiguously related to the campaign of a particular federal candidate." Id. at 80, 96 S.Ct. 612. To put the point differently, "'[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in [this] area only with narrow specificity'" Id. at 41 n. 48, 96 S.Ct. 612 (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). Wisconsin Right to Life, Inc. v. Barland, ibid.
The [Federal Election Campaign Act of 1971] was both too uncertain and too broad to satisfy the constitutional requirements of clarity and precision; Buckley held that the "constitutional deficiencies [of vagueness and overbreadth]... can be avoided only by reading [the federal statute] as limited to communications that include explicit words of advocacy of election or defeat of a candidate." Id. at 43, 96 S.Ct. 612 (emphasis added). In other words, the First Amendment forbids the government from regulating political expression that does not "in express terms advocate the election or defeat of a clearly identified candidate." Id. at 44, 96 S.Ct. 612. Wisconsin Right to Life, Inc. v. Barland, ibid.
Applying this limiting principle to FECA's disclosure requirements for independent political expenditures, the Court gave the federal statute a narrowing construction, holding that the disclosure duties could be triggered only when "funds [are] used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id. at 80, 96 S.Ct. 612. In a famous footnote, the Court listed some examples of express advocacy: "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," and "reject." Id. at 44 n. 52, 96 S.Ct. 612. These are the Buckley "magic words." Wisconsin Right to Life, Inc. v. Barland, ibid.
The Court also narrowed the scope of "political committee" status to reach only groups that engage in election advocacy as their major purpose. Id. at 79-80, 96 S.Ct. 612. This, too, was an application of the constitutional-avoidance doctrine to address vagueness and overbreadth concerns. Political-committee status carries a complex, comprehensive, and intrusive set of restrictions and regulatory burdens. See 2 U.S.C. §§ 433, 434(a)-(b), 441a(a)(1)(C), 441b(a). Buckley held that "[t]o fulfill the purposes of the Act[,] [the definition of political committee] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." 424 U.S. at 79, 96 S.Ct. 612. Expenditures by political committees "so construed" clearly "fall within the core area sought to be addressed by Congress. They are, by definition, campaign related." Id. Wisconsin Right to Life, Inc. v. Barland, ibid.
Finally, the Court drew a distinction between restrictions on expenditures for election-related speech and restrictions on contributions to candidates. Buckley held that limits on contributions are reviewed under an intermediate standard of scrutiny and may be permissible based on the public interest in preventing quid pro quo corruption, but limits on expenditures get strict scrutiny and usually flunk. See id. at 25-27, 55-56, 96 S.Ct. 612; see also Barland I, 664 F.3d at 152-53. The distinction drawn in Buckley between expenditures and contributions may be eroding — and with it the different standards of review — but for now these categories remain. See McCutcheon, 134 S.Ct. at 1445 (opinion of Roberts, C.J.) ("[W]e see no need in this case to revisit Buckley's distinction between contributions and expenditures and the corollary distinction in the applicable standards of review."); see also id. at 1462-65 (Thomas, J., concurring in judgment) (calling for strict scrutiny of contribution limits). Wisconsin Right to Life, Inc. v. Barland, ibid.
THIS CASEBOOK contains a selection of 134 U. S. Court of Appeals decisions that analyze and discuss election law issues. The selection of decisions spans from 2001 to the date of publication.