First Amendment and PACs

The Political Action Committee, or PAC, is a type of ‘‘separate segregated fund’’ that allows corporations and business entities, long barred from giving directly to candidates for office, to make political contributions. Although some labor organizations and unions had been using PACs before 1971, their legality was questionable. The Federal Election Campaign Act, known as FECA, of that year established rules legalizing and governing PACs. Since that time, PACs have proliferated and have become a primary and, at times, controversial vehicle for candidate financing.

As Congress has progressively strengthened campaign finance regulations over time, PACs have been at the center of the debate over the legality of restricting political giving in light of the Constitutional protection of free speech. Opponents of regulation argue that political contributions amount to political speech and, therefore, merit First Amendment protection from Congressional infringement. Proponents of reform, by contrast, suggest that large campaign contributions such as those from PACs exert undue influence on the political process, whereas regulation of such contributions does not necessarily constitute a check on free speech.

While recognizing that campaign contributions were equivalent to speech and that statutes limiting them would have to withstand strict scrutiny, the Supreme Court affirmed the constitutionality of certain restrictions on political giving in the seminal case Buckley v. Valeo (1976). However, the Court later struck down as unconstitutional a provision of FECA which made it illegal for PACs to spend more than $1,000 in ‘‘independent expenditures’’ in Federal Election Commission v. National Conservative Political Action Committee (1985). The Supreme Court recognized that speech does not lose constitutional protection merely because it originates from a corporation or union. However, the most recent major Campaign Finance Reform bill, the Bipartisan Campaign Reform Act (2002), has placed additional restrictions on PAC giving. The legislation, which was tested before the Supreme Court in McConnell v. Federal Election Commission (2003), affects inter alia caps on PAC giving, PAC coordination with candidate committees, and, of course, the main object of the legislation, soft money.

ANDREW FINKELMAN

References and Further Reading

• Lowenstein, Daniel H., and Richard L. Hasen, eds. Election Law: Cases and Materials. 3rd Ed. Durham, NC: Carolina Academic Press, 2004, pp. 717–750.
• Morgan, Anne M. (Note), Election Law: Limitations on Independent PACs Held Unconstitutional, Federal Election Commission v. National Conservative Political Action Committee, 105 S. Ct. 1459 (1985), Marquette Law Review 69 1985–1986:143.

Cases and Statutes Cited

• Buckley v. Valeo, 424 U.S. 1 (1976)
• Federal Election Commission v. National Political Action Committee, 470 U.S. 480 (1985)
• McConnell v. Federal Election Commission, 540 U.S. 93 (2003)