One of the more provocative propositions in the Austin v. Michigan Chamber of Commerce (494 U.S. 652 (1990)) case holds that corporations are properly barred from making political expenditures disproportionate to the level of their political support.  Austin at 659-660 (citing the power of legislatures to address "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas").

     This provoked Justice Scalia, one source among others of his exasperation with the majority.  He could not see how a corporation was different in this respect from wealthy individual.  One was just like the other:  each should be able to promote a point of view without regard to its popularity or prevalence.  Id. at 685 (Scalia, J., dissenting).  Contrary to the Austin Court’s denial, Scalia retorted, it was decreeing that speech be equalized.
 
     As the government recently maintained, in a brief filed in the pending case of Citizens United, this is not the only or correct interpretation.  It urges that the requirement of "political support" be read as the defense of shareholders against the unapproved political uses of their money.  Austin’s ambiguities invite just such disagreements, and the government reasonably suggests this alternative reading. 

     After all, the Court in Austin did deny that it was laying down an equality mandate so objectionable to Justice Scalia.  This is to be taken seriously and alternative readings considered.  In a complex case—and the long-standing corporate spending prohibition presents its share of complexities—multiple readings are not necessarily incompatible.  Multiple goals, variously explained, have motivated and sustained the long-standing federal prohibition on corporate contributions and independent expenditures.

     Austin’s critics aspire to dissolve all this complexity into a simplistic choice between speech and suppression.  In attacking the "political support" language of Austin, they take it to be something strange, an import into the jurisprudence of a notion at odds with core First Amendment values.  What they miss is its surprising ordinariness.  The Austin case was getting at something important, even—one could say—basic to the mechanisms within the campaign finance laws for isolating the corruptive threat of aggregated group or associational spending.

The Linkage of Group Spending Rights to Political Support
 
     The campaign finance laws have long connected group spending rights to the sources of political support.  As unique forms of association funded by committed and wholly voluntary memberships,  political parties have special "in-kind" giving authority — "coordinated expenditures"—through their state and national committees.  2 U.S.C § 441a(d).  Parties in general also enjoy the larger contribution limit of $5,000 (versus $2,400) per election, made available to so-called "multicandidate" committees able to demonstrate a certain breadth of political support.  And the party’s Senatorial committees share with their national committees a still higher contribution limit, in Senate races, of $42,600.

     Another example:  partnership contributions.  Partnership contributions, because they are traced through to their individual partners are, in essence, counted twice.  In the end, a partnership cannot give a candidate more than $2,400 per election, regardless of the number of partners, but every partnership contribution is reported as a contribution by the partnership and also, on an attributed basis, by the individual partners.  2 U.S.C. §§ 441c; 11 C.F.R. § 110.1(e).  The giving power of a partnership is in this way directly related to the level of its actual support, not taking into account business or investment income.

     Here, then, are connections,  rough in architecture, between giving and the underlying basis of political support.  And it works to promote as well as limit spending:  party spending is strengthened, partnership spending limited, direct corporate spending prohibited. 

     The balance of spending promotions and restraints varies with the association, and it is complex as it applies to particular spenders.  For example, the individual sole proprietor who is also a federal contractor may not make a federal contribution from personal, business or any other funds under his or her control. 11 C.F.R. § 115.5.  But the corporate federal contractor may establish a PAC, as may any other corporation, allowing its executives to pool funds within their individual limits to support particular candidates.  This is very clearly a measure to take political support into account in setting limits.

     Are these connections suppressive in design and effective, offending the First Amendment in the manner described by Justice Scalia?  The answer depends on the purposes assumed.  As a doctrinal matter, it seems greatly oversimplified to state that these limits operate as a restriction on speech per se.  Buckley v. Valeo stands, if anything, for the proposition that money is not pure speech, and it is not not speech.  To say, as Scalia does, that limiting corporate political expenditures violates speech rights is to assert a sweeping conclusion without going to the trouble of defending it. 

The Analysis of Political Support and the Concern with Corruption
 
     Austin’s linkage of spending rights to political support is  one additional dimension to the analysis of how far the Government may go in limiting associational or group spending in the service of its anti-corruption interest.  Pooled speech lacking political support or having very little of it is not constitutionally defenseless.  Its protections remain broad.  Yet the wealthier the group and the more lavish the spending, the greater the potential that the exercise of speech rights is more the raw exercise of economic power, threatening corruption or its appearance.  Relating wealth to political support helps to isolate the corruptive threat of group spending and to adjust limits—and constitutional protections—accordingly.

     Scalia’s conviction that the Court was smuggling into the Constitution a right to spending equality is refuted by examining how the political support factor works.  Focus on political support actually preserves inequalities in the volume of spending.  One group can outspend another, by a large margin.  An equality-based regime would have volume as a target, as, for example, do public financing schemes that condition the receipt of public funds on compliance with the same spending limit for all. 

     By contrast, a corruption-centered rationale considers volume only in relation to political support, and only in consideration of the dangers identified in dominating, group spending.  It is a check, a guide, a consideration, in the very difficult and approximate business of dealing realistically with corruption, and its application varies, necessarily, by type of entity.
 
     Return to the example of partnerships.  Assume a large partnership with business or investment income sufficient to generate substantial contributions, or independent expenditures.  Assume, too, only 6 individual partners, whose contributions are limited like all other individual contributions.  The partnership expenditures are a form of pooled speech—but the amounts spent could, if derived from business operations, far exceed what the individual partners could generate in their personal capacities.  The law gives the partnership a chance to speak as a partnership, insisting at the same time that the individual interests behind it are disclosed and relevant to the limit-setting function.  Limits are keyed to political support.

     And it works in the other direction.  The major parties enjoy special limits as organizations presumed to have broad support and, for this reason, an expansive mission and costly responsibilities.  Other political parties may qualify for similar spending allowances, if not to the same extent.  The Congress has a basis in this demonstrated political support to relax the concern with corruptive potential in aggregated giving.

Group Expenditures and the Corruption Rationale

     The opposing points of view in Austin came eventually to the contribution-expenditure distinction.  For Justice Scalia, here again was a shining example of the majority’s carelessness with precedent and its disguised venture into resource equalization.  The Court in Buckley had sanctioned contribution limits as a measure against corruption, but it stopped at independent expenditures, reasoning that the corruptive element was too attenuated if the spender proceeded without the cooperation of the candidate who had then less reason to reward the favor.  Before the Court in Austin was an independent expenditure:  for Justice Scalia, case closed. 

     To this the majority answered ineptly, giving its critics in future years ample ammunition for dismissing the case as an "outlier."  It seemed to suggest two types of corruption—one of the classic kind, involving the threat of quid-pro-quo exchanges of spending for political favor, and another, "different type."  Austin at 660.  The majority denies that this other "type" looks to the enforcement of rough equality among speakers.  Yet, it left itself open to this suspicion with its reference to the dangers that large corporate expenditures could "unfairly influence" elections.  Id.

     To the extent that the Court, in a brief analysis, had more to say, it was that corruption lurked, too, in " the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of  the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas."  Id.  The key link here is between the amount of money the group could spend—"immense"—and its sources in political support, described as little or none.  In this gross misalignment, the Court seems to say, are the grounds for refusing to recognize a safe harbor for even independent expenditures.

     This is where Court’s presentation fails badly.  But it is not hard to see how the fear of corruption in the more traditional and accepted sense might be embedded in these concerns.  An organization amassing wealth outside the political process might deploy "immense" resources to dominate elections, and by doing so, intimidate candidate and legislators.  The issue, as the Austin Court stated it, is "corporate domination" of the political process."  Austin at 659.  Whether the spending is coordinated with the candidate (or a party) is beside the point.  On a large enough scale, dominant in effect, lavish independent spending can establish a controlling, illicit influence, bearing the barest (and if any, coincidental) relationship to the power of ideas.  Certainly this was the view taken by Justice Kennedy in Caperton v. Massey, 129 S.Ct. 2252 (2009), where he disregarded the independence of expenditures in a judicial campaign, emphasizing instead how immensity spending violated litigant due process.  His opinion for the Court glossed over the distinction between contributions and expenditures: to him, on these facts, same difference.  See here. 

     Central to this analysis in the case of corporations and other groups is the absence of a connection between  "immense" resources and political support or activity.  Parties do not compete in stable conditions of equality, and one campaign may greatly outspend another, conceivably to the point of "domination."  These competitive advantages follow from political strengths—from the ability to raise more money within legal limits that are the same for all.  Disparities are constitutionally protected, safe from Congressional interference, if rooted in differences in the success of political activity. 

     It is not, then, the sheer volume of money that accounts for the "corrosive and distorting" influence in aggregated giving or spending.  Volume disconnected from political support in this context—the spending of groups or associations, and in this instance corporations—justifies disregarding the contribution/expenditure distinction in the corruption analysis.

The Notion of "Political Support"

     To critics of Austin, the very reference to "political support" stirs anxiety about the free speech deck being stacked in favor of those with clout.  Does this mean that those with power have the upper hand, the more liberal access to rights purchased with superior resources?  Obviously, framed this way, the notion seems antithetical to First Amendment sensibilities and doctrine.

     It also, on its face, highly doubtful that this was the Austin Court’s intended meaning.  The trouble here is one the Court brought on itself:  there were other ways to put the point—surely ways to elaborate it—less certain to slip from critical context and fall into misunderstanding.  Justice Scalia seized the opportunity presented by the Court’s inarticulateness; he demanded to know how, on this reasoning, individuals could spend freely, as they do, without a foundation of popular support for their ideas.  What Justice Scalia declined to accept was the function of the "political support" analysis in weighing, with reasonable care, the corruptive impact of large-scale and potentially dominant group, association or corporate spending.

     The substantial resources a group may spend on political speech will reflect political support or business success, or other sources of nonpolitical support.  But the immensity of spending coupled with weak or non-existent political support marks the point at which the concern with corruption reasonably arises.  For it is tolerable—indeed the prize of successful political competition—when domination or, less than that, strong influence, are the fruits of successful politics, of any politics at all.  Absent politics, where the assertion of dominance relies on no more than the power of the purse, the group’s call on protection is weaker and Congressional authority to guard against corruption is stronger.

     As noted, the principle works in both directions, for and against spending rights.  The more that politics is the generative force behind group political resources, the less resistance is found in the law to massive spending, even spending to the point of dominance.  Then the group’s strengths are political:  the support it enjoys is derived from political practice, the hard business of gaining adherents and enlisting allies. 

     It is noteworthy that certain critics of corporate spending restrictions take a markedly different point of view of union spending for political purposes.  They are quick to approve restrictions on the use of institutional funds not traceable to "political support."  Justice Scalia, for example, wrote for the Court in Davenport v. Washington Education Ass'n, upholding an affirmative consent requirement for the use of nonmember agency shop fees for election-related activities.  551 U.S. 177 (2007).  The state was free, he wrote, to protect the "integrity of the electoral process" through this requirement.  Id. at 189.  True, the Court, in Davenport and elsewhere, tends to cast the issue as one of concern for the rights of individuals, but the result might be seen as functionally the same:  a limitation on political spending to what are deemed its voluntary, political sources.

     Reflection on the union cases, like consideration of the campaign finance laws suggests that the "political support" analysis of group or association spending rights is not the alien presence in free speech jurisprudence it is so often made out to be. 

Re-reading "Austin

     Readers of Austin have to do much of the work, refusing to be deterred by the ambiguities and outright failures of exposition.  They may well then conclude that what Austin had to say about the relationship of political support to group spending rights is not outlandish, not a sharp swerve from the path of precedent or sanctioned Congressional practice.  Group spending—large sums expended—raises directly a reasonable set of questions about corruption and its appearance where vast resources amassed and spent have no or little relation to political support.

     Justice Scalia cites the case of wealthy individuals, able to spend independently without regard to political support, but individuals are a case apart:  speech rights by individuals and by entities are weighed—have always been weighed—differently.  And in addressing the spending by different entities, the question of their political support has always been relevant to the task before the Congress in judging, hard as it may be, corruptive potential or appearance.

     In Austin, then, the Court was gesturing, albeit awkwardly, at what has long been true of the Congressional struggle to get the constitutional balance right:  large, aggregate political spending is a challenge to Congress’ constitutionally sanctioned mission of controlling corruption.  What the Court had to say on this may have been poorly or ambiguously stated but not, for that reason, wrong.

Bob Bauer