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First Amendment Library:
Drew S. Days III


The Federal Election Campaign Act of 1971, 2 U.S.C. _ 431 et seq., imposes limits on contributions to candidates for federal office. The Act, for example, provides that individuals may contribute no more than $1,000 to any candidate with respect to any election. 2 U.S.C. _ 441a. The Act similarly provides that multicandidate political committees may contribute no more than $5,000 to any candidate. Expenditures that are made by a person or committee in cooperation with a candidate are deemed to be contributions under the Act. Political committee expenditures are also deemed to be contributions attributable to a particular candidate if the expenditures create a communication that refers to a clearly identified candidate and contains an electioneering message. In Buckley v. Valeo, 424 U.S. 1 (1976), the Court held that limitations on expenditures for political speech must be necessary to achieve a compelling governmental interest and must be narrowly tailored to advance that interest. In Buckley, the Court also held that the First Amendment prohibited restrictions on an individual's ability to make expenditures not coordinated with a candidate. In Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480 (1985), the Court extended the holdings in Buckley to apply to "independent" expenditures made by political committees. In early 1986, the Colorado Republican Federal Campaign Committee sponsored radio advertisements critical of then-Representative Tim Wirth, a Democrat seeking his party's nomination for the U.S. Senate. At the time that the advertisement was broadcast, the Republican Party had not yet nominated a candidate for the Senate seat. After the Colorado Democratic Party filed an administrative complaint under the Act, the Federal Election Commission determined that the expenditure for the advertisement was a coordinated party expenditure subject to the limitations of the Act. The FEC then filed a civil complaint in the federal district court, claiming that the Republican Committee had exceeded the limits set forth in the Act. The Committee argued that the advertisement was not an expenditure in connection with a general election and that the Act violated the Committee's rights of free speech and association. The district court agreed that the expenditure was not made in connection with a general election and that it therefore was not subject to the Act. On appeal, the Tenth Circuit Court of Appeals reversed, holding that the advertisement was subject to the Act because it was directed at a clearly identified candidate and contained an electioneering message. The court of appeals also rejected the Committee's First Amendment argument.


Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. The district court held that the "must-carry" provisions of the Act were constitutional. The extent to which the government can regulate speech often depends upon whether the regulation is content-based or content-neutral. Content based restrictions must be narrowly tailored to serve a compelling governmental interest, while content-neutral regulations need only reasonably advance a substantial state interest. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).