1.1 Background: In the wake of the Watergate affair, Congress attempted to ferret out corruption in
political campaigns by restricting financial contributions to candidates. Among other things, the law
set limits on the amount of money an individual could contribute to a single campaign and it required
reporting of contributions above a certain threshold amount. The Federal Election Commission was
created to enforce the statute.
1.2 Question: Did the limits placed on electoral expenditures by the Federal Election Campaign Act of
1971, and related provisions of the Internal Revenue Code of 1954, violate the First Amendment's
freedom of speech and association clauses?
1.3 Conclusion: In this complicated case, the Court arrived at two important conclusions. First, it held that
restrictions on individual contributions to political campaigns and candidates did not violate the First
Amendment since the limitations of the FECA enhance the "integrity of our system of representative
democracy" by guarding against unscrupulous practices. Second, the Court found that governmental
restriction of independent expenditures in campaigns, the limitation on expenditures by candidates
from their own personal or family resources, and the limitation on total campaign expenditures did
violate the First Amendment. Since these practices do not necessarily enhance the potential for
corruption that individual contributions to candidates do, the Court found that restricting them did
not serve a government interest great enough to warrant a curtailment on free speech and
2 McConnell v. FEC
2.1 Background Pt 1: In early 2002, a many years-long effort by Senators John McCain and Russell Feingold
to reform the way that money is raised for--and spent during-- political campaigns culminated in the
passage of the Bipartisan Campaign Finance Reform Act of 2002 (the so-called McCain-Feingold bill
sometimes referred to as BRCA). Its key provisions were a) a ban on unrestricted ("soft money")
donations made directly to political parties (often by corporations, unions, or well-healed individuals)
and on the solicitation of those donations by elected officials; b) limits on the advertising that unions,
corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c)
restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form
of "issue ads" or "coordinated expenditures").
2.2 Background Pt 2: The campaign finance reform bill contained an unusual provision providing for an
early federal trial and a direct appeal to the Supreme Court of the United States, by-passing the
typical federal judicial process. In May a special three-judge panel struck down portions of the
Campaign Finance Reform Act's ban on soft-money donations but upheld some of the Act's
restrictions on the kind of advertising that parties can engage in. The ruling was stayed until the
Supreme Court could hear and decide the resulting appeals.
2.3 Questions: Does the "soft money" ban of the Campaign Finance Reform Act of 2002 exceed Congress's
authority to regulate elections under Article 1, Section 4 of the United States Constitution and/or
violate the First Amendment's protection of the freedom to speak? Do regulations of the source,
content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First
Amendment's free speech clause?
2.4 Conclusion: With a few exceptions, the Court answered "no" to both questions in a 5-to-4 decision
written by Justices Sandra Day O'Connor and John Paul Stevens. Because the regulations dealt
mostly with soft-money contributions that were used to register voters and increase attendance at
the polls, not with campaign expenditures (which are more explicitly a statement of political values
and therefore deserve more protection), the Court held that the restriction on free speech was
minimal. It then found that the restriction was justified by the government's legitimate interest in
preventing "both the actual corruption threatened by large financial contributions and... the
appearance of corruption" that might result from those contributions.
2.4.1 In response to challenges that the law was too broad and unnecessarily regulated conduct that had
not been shown to cause corruption (such as advertisements paid for by corporations or unions), the
Court found that such regulation was necessary to prevent the groups from circumventing the law.
Justices O'Connor and Stevens wrote that "money, like water, will always find an outlet" and that the
government was therefore justified in taking steps to prevent schemes developed to get around the
contribution limits. The Court also rejected the argument that Congress had exceeded its authority
to regulate elections under Article I, Section 4 of the Constitution. The Court found that the law only
affected state elections in which federal candidates were involved and also that it did not prevent
states from creating separate election laws for state and local elections.
3 Bush v. Gore
3.1 Background: Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing
Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential
election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in
Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that
every county in Florida must immediately begin manually recounting all "under-votes" (ballots which
did not indicate a vote for president) because there were enough contested ballots to place the
outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed
a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the
Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on
December 9. It heard oral argument two days later.
3.2 Question: Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by
making new election law? Do standardless manual recounts violate the Equal Protection and Due
Process Clauses of the Constitution?
3.3 Conclusion: Noting that the Equal Protection clause guarantees
individuals that their ballots cannot be devalued by "later
arbitrary and disparate treatment," the per curiam opinion held
7-2 that the Florida Supreme Court's scheme for recounting
ballots was unconstitutional. Even if the recount was fair in
theory, it was unfair in practice. The record suggested that
different standards were applied from ballot to ballot, precinct
to precinct, and county to county. Because of those and other
procedural difficulties, the court held, 5 to 4, that no
constitutional recount could be fashioned in the time remaining
(which was short because the Florida legislature wanted to take
advantage of the "safe harbor" provided by 3 USC Section 5).
3.4 Conclusion Cont. : Loathe to make broad precedents, the per curiam opinion limited its holding to the
present case. Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the
recount scheme was also unconstitutional because the Florida Supreme Court's decision made new
election law, which only the state legislature may do. Breyer and Souter (writing separately) agreed
with the per curiam holding that the Florida Court's recount scheme violated the Equal Protection
Clause, but they dissented with respect to the remedy, believing that a constitutional recount could
be fashioned. Time is insubstantial when constitutional rights are at stake. Ginsburg and Stevens
(writing separately) argued that for reasons of federalism, the Florida Supreme Court's decision ought
to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires
that every vote be counted.