Category Archives: campaign finance

Riley v. National Federation of Blind of N. C., Inc.

487 U. S. 781

June 29, 1988

To discourage charity fraud, North Carolina passed a law that placed tiered limits on how much professional solicitors for charitable donations could keep for themselves as a fee. These limits could be rebutted. The law also required solicitors to state to potential donors the percentage of money they had left to charities within the past year. Finally, it required these professionals to be licensed before engaging in any solicitation. All these provisions were challenged as impeding the First Amendment rights of both the charities and the solicitors.

The Supreme Court struck down the licensing requirement 6-3, and the other restrictions 7-2. Brennan cited precedents that had ruled flat restrictions on fees out of order. Although the North Carolina law was more flexible, it was still not flexible enough, and it justification of limiting solicitors to ‘reasonable’ fees demonstrated a paternal belief that the government knew better than the charities themselves. Brennan easily found that the compelled speech of telling donors up front about percentages retained and turned over would burden the collection of funds by scaring away both potential donors and solicitors. Finally, because the stat could potentially hold up indefinitely the licensing of unpopular solicitors, he found the licensing requirement unsound as well. In all cases, the charity’s ability to communicate to the public through its own chosen means was impinged upon.

Scalia concurred in all but a footnote which signaled approval of a hypothetical legal requirement that a solicitor merely disclose his professional status. Stevens concurred in all but the licensing part, feeling that states could be trusted to conduct licensing in a fair manner. Rehnquist, joined by O’Connor, dissented. He felt that the tiered restrictions, complete with the possibility of rebuttal, were nuanced enough to be considered narrowly tailored to. The licensing requirement no more implicated free speech than the requirement that legal defendants retain licensed lawyers. Finally, Rehnquist did not feel that a brief disclosure about charity financing by a solicitor would unduly burden fundraising efforts.

I’m not sure about the fee limits, or the licensing requirements, but I think the compelled disclosure is clearly unconstitutional. If I joined nothing else, I would have joined Brennan’s section on that.


Federal Election Comm’n v. Massachusetts Citizens for Life, Inc.

479 U. S. 238

December 15, 1986

Federal law made it illegal for any corporation to make any expenditures on political elections, unless they set up a special political committee with segregated financing. Massachusetts Citizens for Life (MCFL) was a pro-life group that incorporated itself as a non-profit to do its work. In 1978, MCFL published a voter guide that listed the positions of the candidates in the upcoming election on the abortion issue. The FEC brought action against MCFL for distributing this guide, and MCFL contested the application of the federal campaigning law in court.

The Court ruled 5-4 that the law was unconstitutional as applied to MCFL, because it unreasonably restricted the group’s right to free speech. Brennan wrote for the majority. First, he rejected arguments that publication of the guide was not an “expenditure” within the law’s meaning, and that the guide was not intended as a call to vote for certain candidates. Even the four dissenters agreed with those conclusions. Nonetheless, Brennan thought that the law swept too broadly with respect to MCFL, and thus ruled against the FEC.

He explained that campaign finance restrictions on corporations were intended to keep corporations from using massive company profits to disproportionately impact the political process, and also intended to prevent the use of a customer’s money on a cause he might disagree with. Because MCFL was a non-profit, and actually dedicated to the pro-life cause, the goals behind the law did not apply. Brennan also showed that setting up the special political committee provided for in the law would be extremely burdensome for MCFL, and might operate in a chilling fashion on their speech rights.

Brennan’s discussion on that last point was not joined by O’Connor, who wrote a concurring opinion explaining why. Reading it though, I still can’t figure out where it is that they actually disagree. Rehnquist wrote a dissent, and he was joined by White, Blackmun, and Stevens. Its basic gist was that Congress very clearly intended its law to apply to all corporations, and that prior Court decisions had usually not exempted organizations from campaign finance restrictions just because a particular application bore little relation to the law’s underlying goals. White, a staunch adherent to precedent, joined Rehnquist’s dissent even while noting that he had originally disagreed with many of those previous rulings.

This case feels like something out of a bizarre parallel universe. A hyper-liberal Justice writing a majority opinion against a campaign finance law? When the target of the law’s application was a pro-life organization!?? I’m starting to think that some of today’s great political fault lines weren’t quite so set in stone back then. As for the decision itself, I think Brennan got it right; the First Amendment values at stake do trump precedent and Congressional desire for uniformity. Also, maybe I’m just paranoid, but I can’t help but wonder if the FEC deliberately decided to target MCFL because of its pro-life views. It certainly wouldn’t have been the first or last time that a government agency bullied the right to life movement.