The Next Citizens United? SCOTUS Takes First Amendment Challenge to Campaign Finance Law


ACRU Staff


February 20, 2013

This column by ACRU Senior Legal Analyst Ken Klukowski was published February 19, 2013 on

The Supreme Court will hear arguments in what could be the next Citizens United, considering whether a central part of the nation’s foundational federal campaign-finance law violates the First Amendment.

In 1971, Congress passed the Federal Election Campaign Act (FECA). After the national trauma of Watergate (which has nothing to do with Marco Rubio), Congress vastly expanded FECA in 1974, creating the modern campaign-finance system governing federal campaigns.

Several provisions of FECA were challenged in constitutional grounds. In Buckley v. Valeo, the Supreme Court in 1976 struck down a couple key parts of FECA, but upheld the rest. Part of this decision was a jaw-dropping split-the-baby approach, where the Court held that FECA’s restrictions on how much a campaign could spend violated the First Amendment because it limited how much a candidate could speak to voters, but restrictions on campaign contributions were okay so long as they were not too restrictive–whatever that’s supposed to mean. It was one of a series of Supreme Court decisions from the mid and late-1970s that was philosophically incoherent, and left no one satisfied.

But as egregiously wrong as the contribution limit part of Buckley was, it nonetheless became the law. The first evidence constitutional conservatives had that Chief Justice John Roberts is not as conservative as many people hoped was the 2006 case Randall v. Sorrell, where several justices–including moderate Justice Anthony Kennedy–signaled they may be willing to overrule that aspect of Buckley, but Roberts voted to affirm on the stare decisis grounds that Buckley was too well-settled as law for the Court to get rid of it.

Then came Citizens United v. FEC, the historic restoration of free-speech rights of ordinary Americans who combine their resources to speak through public-interest groups. Kennedy’s opinion for the Court was a major advance for constitutional limits on government censorship.

Since Citizens United, scholars and lawyers have debated how much further the Supreme Court might go. Now we might find out.

The Supreme Court has taken McClutcheon v. FEC for arguments this fall. McClutcheon is a challenge to the part of the current version of FECA that limits how much money an American citizen can give to one of the national political parties in a two-year period. Although the overall limit is slightly over $100,000, that’s beside the point of asking what empowers the federal government to tell a citizen how much communication he can have with his fellow citizens in the political process.

The challenger is represented by James Bopp, one of the best-known and most experienced names in campaign-finance law. Bopp is a champion for various conservative causes, especially the First Amendment.

So this fall, Bopp’s client will have his day before the Supreme Court in what could be the next major First Amendment case.



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