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Bar Journal - March 1, 2002

A Survey of Federal Judicial Decisions that Affect NH Election Law


Federal case law limits and interprets New Hampshire's statutory election law and its federal counterparts. New Hampshire RSA 664 addresses limits on and reporting requirements for political contributions and expenditures. Attorneys called upon to advise candidates, contributors to campaigns, independent individuals, or independent groups who seek to advocate for or against issues or candidates need to look beyond New Hampshire's statutes to understand their reach and effect. In a few cases, federal courts have explicitly altered New Hampshire's statues. In others, federal courts have struck down or limited provisions in federal or state election laws that bear similarities to New Hampshire's statutes. This article surveys the major federal decisions defining the constitutional limits placed on state regulation of elections including the federal cases that expressly alter New Hampshire statues.1 

Legislative Efforts To Regulate Elections Often Conflict With Constitutional Guarantees Of Free Speech And Association

Freedom of political speech, including campaign expenditures that facilitate speech, and freedom of political association, to a limited extent including campaign contributions, are core and paramount constitutional rights. "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble . . . ." "The First Amendment affords the broadest protection to . . . political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'"3  "[I]t can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."4  "[T]he purpose of the First Amendment is to 'secure the widest possible dissemination of information from diverse and antagonistic sources."5  "Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved."6 

Legislative efforts to insure the legitimacy and integrity of elections have sometimes conflicted with the nearly sacred rights of citizens to freedom of speech and association under the First Amendment and New Hampshire's Constitution.7  New Hampshire's legislative regulation of elections may also be seen as an effort to effectuate the equal right to vote and the equal right to be elected found in our State Constitution. "All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. . . . Every inhabitant of the state, having the proper qualifications, has an equal right to be elected into office."8  Whatever their source, the interests states seek to advance with election regulation face a difficult burden when they bear upon First Amendment freedoms.

Courts balance state interests in regulating elections against First Amendment rights. The integrity of elections is recognized as the paramount state interest. The legitimacy of government, the willingness of the people to accept public officials, their decisions, and the outcome of votes on measures, is dependent upon citizens believing they had an equal opportunity, through the election process, to influence those decisions. The primary interest of federal election regulation is the "prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office."10 

Election regulations that "mute the voices of affluent persons and groups in the election process and thereby . . . equalize the relative ability of all citizens to affect the outcome of elections" reflect another state interest, albeit one not well accepted by the courts.11  This interest is founded in a belief that the need to raise large amounts of money for political campaigns puts donors in positions of undue influence. Regulations seeking to limit campaign expenditures are justified by the claim they "may to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money."12  The federal courts have not given great weight to the states' asserted interests in ensuring financial equality among candidates. Thus, most such regulations are found unconstitutional as violative of First Amendment rights.13 

Another justification advanced for the regulation of elections is the "informational" interest, the state's interest in ensuring that voters know who is promoting ideas or candidates. While the courts have recognized that in many contexts the identity of the speaker does matter, they have favored letting ideas, not the identity of the speaker, be the focus of the marketplace of ideas.14  Justice Holmes in his dissent in Abrams v. United States said "the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . . "15  The state's informational interest has proven to have limited weight as a justification for state regulation of elections.

Buckley v. Valeo is the seminal examination of the contest between state interests in regulating elections and First Amendment rights.16  For 25 years, Buckley v. Valeo has dominated election law. Its core holdings, repeatedly challenged and in recent opinions threatened with being overturned by members of the Supreme Court itself, remain the law of the land.17  Understanding the reach and constitutional viability of election law in New Hampshire requires a careful parsing of Buckley and its progeny.


Buckley v. Valeo

Buckley considered a variety of challenges to a comprehensive regulatory scheme enacted by Congress to control federal elections.18  The Federal Election Campaign Act ("FECA") in pertinent part (a) limited individual political contributions to $1,000 per candidate in any election and to an aggregate annual limit of $25,000; (b) set dollar limits on candidate expenditures, regardless of the source of funds; (c) limited independent expenditures of funds by individuals or organized groups "relative to a clearly identified candidate" to $1,000 per year; (d) established a comprehensive system requiring candidates and political committees to register and report receipts and expenditures; and (e) established a system for public funding of campaigns in federal elections.19 

The most profound outcome of the Buckley decision was the Court's holding that the contribution and expenditure of money in the context of a political campaign is, in effect, political speech.20  That key holding is perceived by many as having impacted the balance of access to mean ingful democratic participation, particularly to the influence of the media, between those with wealth and those without. The Court of Appeals, relying on United States v. O'Brien,21  had upheld the FECA, finding that the contribution and expenditure of money in a political context was conduct appurtenant to political speech, subject to less First Amendment protection than speech itself.22  The Supreme Court rejected the Court of Appeals conclusion that the FECA regulated conduct and not speech.23  The Supreme Court stated it had "never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment."24  In effect, spending money in a political context is, in almost every circumstance, protected First Amendment speech.

Contributions, however, were distinguished from expenditures. While "[p]recision about the relative rigor of the standard to review contribution limits was not a pretense of the Buckley" opinion, it generally applied "exacting scrutiny" to limits on expenditures as they were "direct restraints on speech," but treated contributions differently because limits on contributions only marginally restricted speech.25

Buckley Upholds Regulation Of Political Contributions

"[U]nder Buckley's standard of scrutiny, a contribution limit involving 'significant interference' with associational rights . . . could survive if the Government demonstrated that the contribution regulation was 'closely drawn' to match 'a sufficiently important interest, . . . though the dollar amount of the limit need not be 'fine tuned'"26  The Court viewed contribution limitations imposed on individuals and organizations as directly related to the Act's fundamental purpose of limiting the risk of actual or perceived corruption.27  The Court found that limiting an individual's contributions to a candidate did not limit that individual's right to unlimited speech. The individual could still engage in unlimited speech by making independent expenditures advocating that candidate's election. Because a cap on contributions did not prevent unlimited speech, the Court viewed the attendant limitations on free expression and association as "marginal."28  On this basis, the Court sustained, against constitutional challenge, the Act's $1000 limit on individual contributions to a candidate, $5000 limit on political committee contributions to candidates, and the $25,000 aggregate yearly limit on political contributions by an individual.29 

Buckley Strikes Down Direct Regulation Of Political Expenditures

The Buckley Court created a distinction between express advocacy and other forms of political spending that remains contested today.30  Expenditures, the Court rea soned, differ from contributions, in that contributions are primarily an expression of associational intent or affinity for a candidate and do not constitute direct political "speech."31  In contrast, an expenditure is often necessary to facilitate political speech and so falls within the most protected sphere of First Amendment analysis. The Court found that "a primary effect of . . . expenditure limitations is to restrict the quantity of campaign speech by individuals, groups and candidates."32  Accordingly, the Court held that the Act's limitations on overall campaign spending by candidates seeking nomination or election to federal office were unconstitutional.33 

Buckley Strikes Limits On Candidate Financing Of Political Campaigns

The Court also held unconstitutional restrictions on a candidate's ability to finance a political campaign from his or her own personal resources. The Court found that such restrictions could actually promote rather than discourage a candidate's dependence on contributors while restricting the ability of a candidate to engage in as broad a dissemination of his or her ideas and positions as he or she could afford.34  As the Court observed, "[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office ... is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights."35 

Buckley Upholds Registration And Reporting Requirements For Candidates, With Limited Application To Independent Expenditures

The Court sustained the Act's comprehensive registration and reporting requirements for contributions and political expenditures by candidates and political committees as reasonable, non-obtrusive regulations.36  In doing so, the Court recognized that compelled disclosure of membership or other "associational" information in a political context may affect the privacy rights of individuals and "has the potential for substantially infringing the exercise of First Amendment rights."37  The Court reasoned, however, that the reporting requirements at issue in Buckley served significant governmental purposes.

First, they provide the electorate with information regarding the source of money in a political campaign and the campaign's method of spending. The electorate then can decide for itself whether a pattern of support from particular interest groups is predictive of the candidates future decisions related to those interests. Second, disclosure requirements could deter actual corruption and the appearance of corruption by exposing large contributors to public scrutiny. Third, the Act's requirement that candidates, campaigns, and contributors keep detailed records of donations and expenditures subject to the Act was necessary to detect violations of contribution limitations.38  Finally, the Court concluded that the reporting and record keeping requirements did not impinge on First Amendment associational rights to the degree held improper in cases involving forced disclosure of membership lists.39  Therefore, the Buckley Court held registration and reporting requirements regarding contributions, including coordinated expenditures,40  to candidates for elective office and political committees are constitutionally permissible.41  The First Circuit, in Daggett V. Commission On Governmental Ethics & Election Practices, recently upheld receipt and expenditure reporting requirements, finding that the state has a "compelling interest in keeping the electorate informed about which constituencies may command a candidate's loyalties."42  Daggett involved a challenge to Maine's "Clean Elections Act," which in part provided for public funding for candidates who raised a minimum amount of "seed money" with small contributions.

The Buckley Court, however, found the provision of the Act requiring reporting by persons other than candidates and political committees who make contributions or expenditures suffered from vagueness. The Act's definitions of "contributions" and "expenditures" both relied on the phrase "for the purpose of . . . influencing" the nomination or elections of a candidate.43  The Court construed contributions for reporting purposes as "contributions made directly or indirectly to a candidate, political party, or campaign committee, and contributions made to other organizations or individuals but earmarked for political purposes [and] all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate."44  By so limiting the meaning of the term "contributions," it also limited the phrase "for the purpose of influencing" in that context to explicit advocacy.45 

In analyzing the constitutionality of requiring persons (not candidates or political committees) to report expenditures, the Court found that the phrase "for the purpose of . . . influencing" had an impermissible "potential for encompassing both issue discussion and advocacy of a political result."46  The Court noted "'political committee' is defined only in terms of [the amount of] annual 'contributions' and 'expenditures' [it makes] and [therefore] could be interpreted to reach groups engaged purely in issue discussion."47  "To insure that the reach of [the reporting requirement] is not impermissibly broad [the Court] construe[d] expenditures . . . to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate."48  Therefore, issue advocacy by persons independent of candidates and political committees is outside the scope of permissible expense reporting requirements.

Buckley Strikes Down Limits On Independent Expenditures

In analyzing limits on independent expenditures by individuals or organizations in support of a candidate or campaign, the Court adopted two rationales, which still affect election regulation today. Expenditures "relative to a clearly identified candidate" were limited.49 

First, on vagueness grounds, the Court found "[t]he use of so indefinite a phrase as 'relative to' a candidate fails to clearly mark the boundary between permissible and impermissible speech . . . ."50  For this reason, the Court narrowly construed the scope of the provision to apply "only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office."51  The Buckley Court thereby established that, "[s]o long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views."52 

In a footnote that would take on significant precedential authority, the Court provided the following list of examples of "express advocacy" which have become known as the Buckley "magic words," (hereinafter "explicit words"):

This construction would restrict the application of [the Act] to communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," " reject."53 

Cases following Buckley have examined other tests for express advocacy, but First Circuit courts continue to rely on this "explicit words" test as the definitive source of meaning for the phrase.

Second, the Court suggested that, even narrowly construed, the Act's limitation on independent expenditures could not be justified by the governmental interest in preventing electoral corruption.54  The independent expenditure limitation had been justified as a loophole closing provision, preventing those who had already given the allowed contribution from, in effect, contributing more by paying for goods or services under the guise of expenditures. Once construed to avoid unconstitutional vagueness, however, the provision was no longer sufficiently effective as a loophole-closing provision, to be constitutional.55  It is important to note that this conclusion is premised on the definition of "contribution" encompassing "controlled or coordinated expenditures."56  Expenditures controlled by or coordinated with the candidate or the candidate's committee therefore are subject to regulation and may be treated as contributions. Truly independent expenditures cannot be constitutionally limited.57 

Buckley Upholds Public Financing Of Elections

Distinguishing impermissible coercion from permissible encouragement, the Court upheld public funding of elections and the system of providing matching funds to qualified candidates established by the FECA.58  According to the Court, "[i]t cannot be gainsaid that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest" and public financing of elections does not specifically impinge on any First Amendment interest.59 

Buckley In Summary

Buckley v. Valeo established the following tenets which continue to be the baseline for constitutional analysis of federal and state election regulations. First, political expenditures may not be constitutionally limited as they directly impinge on the freedom of political speech. Second, political contributions implicate the right of association and, to a lesser extent, the right of free speech, but are subject to regulation. Third, it is permissible to regulate only those contributions or expenditures which expressly advocate the election or defeat of a candidate. All other advocacy is issue advocacy, including implicit advocacy of the election or defeat of a candidate. Issue advocacy poses less risk of corruption. Reasonable record keeping and reporting requirements regarding contributions and expenditures are constitutionally permissible. Reporting requirements imposed on independent persons, however, must be limited to those expenditures made for express advocacy. Fourth, it is also constitutionally permissible to limit direct political contributions by individuals or groups, but the regulatory scheme must not infringe on the right of such persons to engage in unlimited independent political expenditures. Fifth, it is constitutionally impermissible to impose mandatory limits on direct expenditures by candidates, campaigns or by independent third parties in support of a candidate or campaign.60 

Buckley v. Valeo's Progeny

Buckley outlawed mandatory campaign spending limits, and consequently, New Hampshire and many other states have sought to encourage candidates to agree to voluntary spending caps. Courts have also extensively examined the line drawn by Buckley between express advocacy of the election or defeat of a candidate and issue advocacy, which often looks like express advocacy.

Voluntary Spending Limits

Many states, including New Hampshire, have enacted statutes establishing procedures by which candidates may voluntary agree to spending limits. In general, such agreements are secured through: (a) voluntary adherence to spending limits; (b) agreement to accept fines or other sanctions for exceeding voluntary limits; (c) contribution differentials, incentives such as allowing those agreeing to a voluntary spending cap to accept larger contributions than candidates who choose not to abide by spending caps; or (d) providing public campaign funding.

The courts have consistently viewed incentives such as contribution differentials and public funding of campaigns as acceptable means to encourage candidates to voluntarily accept expenditure limitations which would otherwise be unconstitutional under the First Amendment.61  "[A] voluntary campaign finance scheme must rely on incentives for participation, which, by definition, means structuring the scheme so that participation is usually the rational choice."62  Limits exist, however, as courts have held coercive incentives unconstitutional when they so favor those accepting spending caps as to leave candidates no practical choice but to participate.63  The test applied is "whether the net advantage to a participating candidate is so great as to be impermissibly coercive . . . ."64  As is discussed below, in Kennedy, the United Sates District Court for New Hampshire upheld New Hampshire's voluntary spending cap law.

Emergence Of A "Bright Line" Test For Express Advocacy

Since Buckley, federal courts have further defined the permissible scope of governmental election regulation by strictly applying the Buckley "explicit words" test for express advocacy. In Federal Election Commission v. Mass. Citizens For Life,. Inc., (hereinafter "MCFL"), the Supreme Court reiterated the Buckley factors in holding that a ban on corporate expenditures by a non-profit entity formed to advocate "pro-life" positions violated the First Amendment.65  The Court explicitly affirmed Buckley's suggestion that express advocacy be identified by reference to explicit words of advocacy. The Court held that a newsletter, which was mailed to individuals other than organization members and contained specific exhortations to vote for or against candidates based on their voting record, constituted express advocacy.66  The Court then, however, held that a ban on corporate expenditures designed to prevent individuals from circumventing legal contribution limits could not be constitutionally applied to certain non-profit corporations. Corporations that are not formed by and do not accept contributions from business corporations or labor unions and which are formed for the specific purpose of advocating positions on issues may not be prohibited from making political expenditures.67 

Lower federal courts, applying Buckley and MCFL, have stressed several factors which, taken together, further narrow the scope of permissible elections regulation under the First Amendment. First, the Buckley "explicit words" test is necessary to provide a "bright line" so that one contemplating making political speech can predict whether a statement or advertisement falls within or outside of a regulatory scheme.68 

One example of an attempt to more broadly define express advocacy, which has since been rejected in the First Circuit, occurred in Federal Election Commission v. Furgatch where the Ninth Circuit created a three-part analysis for identifying express advocacy.69  According to that court, express advocacy only includes speech which:

[m]ust, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate. This standard can be broken into three main components. First, even if it is not presented in the clearest, most explicit language, speech is "express" for present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed "advocacy" if it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally, it must be clear what action is advocated. Speech cannot be "express advocacy of the election or defeat of a clearly identified candidate" when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action.70 

This three-part test was rejected by the United States District Court for Maine, a decision that was affirmed by the First Circuit in Maine Right To Life Committee v. Federal Elections Commission.71  The Maine Right to Life decision relied heavily on the First Circuit's earlier 1991 holding in Faucher v. FEC.72  The Faucher court recited Buckley, stating that "[e]xpress advocacy is language which 'in express terms advocate[s] the election or defeat of a clearly identified candidate' through the use of such phrases as 'vote for,' 'elect,' 'support,' cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' and 'reject.'"73 

The test is properly applied to the text of the communication itself, with limited weight given to the context in which the statement is made. For example, Maine Right to Life invalidated an FEC regulation that allowed the Federal Election Commission to look at the temporal proximity of publication to an election as evidence that the statement was express advocacy. The effect of such a regulation, the Court found, was that "what is issue advocacy a year before the election may become express advocacy on the eve of the election and the speaker must continually re-evaluate his or her words as the election approaches. That is sufficient evidence of First Amendment 'chill' to entitle the plaintiffs to relief."74  Therefore, analysis of speech should be done using the Buckley "explicit words" test and should not consider when the speech was made.

In Colorado Republican Campaign Committee v. FEC, a plurality of the Supreme Court extended the Buckley line of reasoning to explicitly distinguish between political party expenditures which are "coordinated" with a campaign for regulatory purposes and those expenditures by a political party which are "independent" of a campaign.75  Under the Court's reasoning, coordinated expenditures may be treated as contributions to a candidate's campaign and made subject to valid contribution limits.76  The Court, however, rejected the government's position that, as a matter of law, all party expenditures in an election should be presumed to be coordinated with the affected campaign.77  The Colorado Republican opinion suggests that a range of expenditures by political parties must be viewed as subject to the same wide-ranging immunity from direct governmental regulation as are independent third party expenditures. To regulate an expenditure, the state has the burden of demonstrating that a party coordinated the expenditure with a campaign.

Limitations On Identification And Labeling Requirements

New Hampshire and other states require that certain political advertising contain identification, the name and address of a natural person who either is or acts as agent for the entity advertising. In certain circumstances the ad must also be labeled as a political ad, that is bear the words "political advertising" or some similar phrase.78  The Supreme Court in McIntyre v. Ohio Elections Comm'n invalidated an Ohio law that required a flyer distributed by an individual advocating the success or defeat of a measure to include the identity of the author. The McIntyre Court held in part that an identification requirement is unjustified where applied to an individual advocating for or against an issue. "The risk of corruption perceived in cases involving candidate elections . . . simply is not present in a popular vote on a public issue."79  A person paying for political advertising supporting a candidate may do so with the expectation that once in office, the candidate will make decisions that are favorable to the ad sponsor's interests. By comparison, there is no risk that a person paying for political advertising supporting adoption of a measure will get some future improper hidden benefit. The ad sponsor may benefit from adoption of the measure, but the ordinance or amendment being voted on is open to public inspection prior to the vote. This case involved a single individual pamphleteering on a local school tax levy. The Court's decision should be properly viewed as limited to a holding that anonymous pamphleteering by a single individual advocating the adoption or defeat of a measure is protected First Amendment speech, because those were the facts of the case.

The Court in dicta, however, addressed more than advocating the defeat of a measure by a single individual. "Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority."80  "The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. . . . [A State's] informational interest is plainly insufficient to support the constitutionality of [a] disclosure requirement."81  The Court asserted that the substance of political speech, not its author, was of greatest value. "[T]he 'inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.'"82 

The McIntyre Court acknowledged that some identification requirements may be constitutional. "We recognize that a State's enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafleting at issue here."83  The Court expressed a preference for narrowly tailored regulations, suggesting it is better that some misuse escape regulation than to chill protected free speech. "The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and in general, our society accords greater weight to the value of free speech than to the dangers of its misuse."84 

At least one state court has held that McIntyre is less than a complete bar on mandatory disclosure. The Connecticut Supreme Court found that McIntyre was limited to independent expenditures. "[T]he court in McIntyre nevertheless preserved the legitimacy of the informational interest in cases not involving independent expenditures."85  Connecticut relied, in part, on the Second Circuit's post-McIntyre, use of the information interest in finding the state's purpose compelling where disclosure did more than "simply inform[] the electorate."86 

[T]he government's interest in identifying who paid for a solicitation letter . . . goes significantly further: by avoiding any misunderstanding as to the actual recipient of the solicited contribution, [the statute] enables the solicitee to contribute money to those groups which truly reflect his or her beliefs. This is the sort of critical information that protects the integrity of the electoral process.87 

McIntyre, while prohibiting the imposition of identification requirements on lone individuals responsible for political advertising on issues, has not been interpreted to extend further.

Federal Case Law Involving New Hampshire RSA 664

Federal Courts have examined aspects of New Hampshire's election statutes in four principal cases. See N.H. Right To Life PAC v. Gardner,88  (holding a limit on independent expenditures by organizations unrelated to campaign or candidate unconstitutional); Kennedy v. Gardner, ("Kennedy I"),89  and Kennedy v. Gardner ("Kennedy II")90  (invalidating a prohibition against corporate contributions to political campaigns but permitting contribution differentials as an "incentive" to encourage candidates to adhere to voluntary spending caps); and Stenson v. McLaughlin,91  (striking the phrase "implicit advocacy" from definition of political advertising, as regulation of political communication that implicitly advocates success or defeat of any party, measure or person at any elections as unconstitutional). In all of these cases, the courts have applied First Amendment principles enunciated in Buckley and succeeding cases to limit the validity of election regulations in New Hampshire.

In NH Right To Life PAC, the First Circuit reversed a decision of the District Court dismissing a challenge to the State's expenditure limits. The District Court had ruled that the plaintiff, a pro-life political action committee, did not have standing to challenge the State's regulation because it did not face an articulated or credible threat of prosecution by State authorities. The plaintiff had sought a declaratory judgement that one set of completed expenditures and another set of projected expenditures fell outside the expenditure limits statute.92  The First Circuit reversed, finding that the possibility of prosecution, or the likelihood of self-censorship arising from that possibility, was sufficient to establish standing to challenge an elections regulation under the First Amendment.93  The Court then struck down a statutory provision similar to one invalidated in Buckley that sought to limit independent expenditures to $1,000 per election. The Court explicitly adopted Buckley's emphasis on the importance of protecting independent advocacy as necessary to the preservation of any regulatory scheme that seeks to limit or regulate contributions to and direct expenditures by candidates.94  The Court specifically rejected the State's argument that New Hampshire's voluntary campaign spending regime justified independent expenditure limits.95 

In Kennedy I and Kennedy II, the United States District Court for New Hampshire again relied on First Amendment principles to (i) invalidate a statutory ban on corporate contributions to candidates or campaigns (Kennedy II); (ii) invalidate enhanced petition and fee requirements for candidates who refused to adhere to voluntary spending limits (Kennedy I); and (iii) uphold the statute's provisions allowing candidates who agree to observe voluntary spending limits to accept larger contributions than candidates who decline to adhere to the spending caps.

The court relied on Buckley and its progeny to invalidate New Hampshire's election law provisions waiving certain fee and petition requirements for candidates who agree to adhere to the voluntary spending cap. In Kennedy I, the Court ruled that added burdens in the form of enhanced petition requirements and fees for candidates who did not observe voluntary spending limits were impermissibly coercive and insufficiently related to the statutory goal of encouraging candidates to limit campaign expenditures.96  By contrast, in Kennedy II, the Court ruled that contribution differentials fell within the permissible sphere of regulatory incentives designed to encourage candidates to adhere to voluntary limits.97 

With respect to corporate contributions, the Court in Kennedy II invalidated New Hampshire's prohibition on such contributions while acknowledging the principle that a state may constitutionally impose reasonable limitations upon the source and amount of political contributions made by corporations.98  "However, those limitations must be justified by, and narrowly tailored to advance, a compelling state interest."99  While the Court recognized the Legislature's desire to control campaign spending through restrictions on corporate funding,100  the Court did not accept that an outright ban, as compared to the federal system of segregated voluntary funds, on corporate campaign contribution was a narrowly tailored way to advance such goals.101  Federal restrictions on contributions by corporations and unions require the maintenance of segregated accounts funded wholly with voluntary contributions. While New Hampshire presumably could amend its statute employing a similar scheme, unless it does so, a corporation faces only those limitations imposed on all persons.

In Stenson, the District Court held that the election statute's definition and regulation of political advertising "are facially unconstitutional because, 1) the disclosure requirements of RSA 664:14 and 664:16, applied to issue advocacy as a result of the word "implicitly" contained in [the definition of political advertising] violate Buckley and its derivative case law, and 2) the word "implicitly" is impermissibly vague."102  The Court in Stenson concluded that the term "implicitly" could properly be severed and it permanently enjoined the Attorney General from enforcing RSA 664:14 and RSA 664:16 against any individual or organization based on implicit advocacy.103  Implicit advocacy is protected First Amendment speech, which is not subject to the limitations imposed by RSA 664:14 and RSA 664:16.


In New Hampshire we are accustomed to the primacy of our State Constitution. But, to understand the limits of constitutionally permissible election regulation it is first necessary to understand the scope and impact of federal case law. Federal judicial decisions limit the reach of New Hampshire's election statutes. The Supreme Court asserted in Buckley that "[i]n the free society ordained by our Constitution it is not the government but the people-individually as citizens and candidates and collectively as associations and political committees-who must retain control over the quantity and range of debate on public issues in a political campaign."104  The federal constitutional limits on New Hampshire's election laws are best understood as favoring placing in the hands of the voters ultimate control of what contribution, expenditure and campaign practices are acceptable. While the federal courts have several times limited government from prohibiting certain conduct, they rarely limit regulation that affords the people access to information, particularly on campaign receipts and expenditures. If the ultimate determination of the proper limits on contributions, expenditures, and advertising is to occur in the voting booth and not in the courtroom, the people must have access to as much information as the federal and New Hampshire Constitutions will allow.


1. The opinions expressed in this article are those of the author and are not necessarily the view of the State or the New Hampshire Attorney General's Office. This article has evolved from a draft of a broader memorandum on election law in New Hampshire written by Walter L. Maroney, Esq. during his tenure as a Senior Assistant Attorney General. The author also thanks Associate Attorney General Michael J. Walls, Senior Assistant Attorney General Anne M. Edwards and Karen Schlitzer, J.D. for their thoughtful editing.
2. U.S. Const. amend. I.
3. Buckley v. Valeo 424 U.S. 1, 14 (1976), quoting Roth v. United States. 354 U.S. 476, 484 (1957).
4. Id. at 15 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).
5. Daggett V. Commission On Governmental Ethics & Election Practices, 205 F. 3d 445, 464 (1st Cir. 2000) (quoting Buckley, 424 at 49 (citations omitted)).
6. N.H. Const., Part I, Art. 22.
7. N.H. Const., Part I, Art. 22 (quoted earlier in the text); N.H. Const., Part I, Art. 32 (Rights of Assembly, Instruction and Petition):

The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.

8. N.H. Const., part I, art. 11.
9. "'Measure' shall mean any constitutional amendment or question which is submitted or intended to be submitted to a popular vote at an election." RSA 664:2, X. As New Hampshire's election law uses the term "measure" to encompass referenda, questions, or any vote at an election addressing an issue as opposed to a candidate, the term measure will be used in this article.
10. Buckley at 25.
11. Id. at 25-26.
12. Id. at 26.
13. The Buckley Court rejected the notion that equalizing voices through limiting speech or association was consistent with the Constitution. "[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment . . . ." Buckley, at 48-49. The Court, however, has held constitutional public funding of campaigns and beneficial contribution limit differentials for candidates who agree to voluntary spending caps. Both are considered mechanisms for equalizing candidates' financial equality and affording economically disadvantaged individuals an opportunity to run viable campaigns. The Court seems to allow government to encourage the equalizing of voices, even though it may not require it.
14. For example, the McIntyre Court considered the identity of the author of a flyer advocating defeat of a local tax levy relatively unimportant. In the "case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader's ability to evaluate the document's message." McIntyre v. Ohio Elections Comm'n., 514 U.S. 334, 348-49 (1995).
15. Federal Election Commission v. Mass. Citizens For Life,. Inc., 479 U.S. 238, 257 (1986) (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., joined by Brandeis, J. dissenting). n 10).
16. 424 U.S. 1 (1976),
17. See dissents in Fed. Election Comm'n. v. Colorado Republican Fed. Campaign Comm., 150 L. Ed. 2d 461 (2001); Nixon v. Shrink Missouri Gov. PAC et. al., 528 U.S. 377 (2000).
18. The statute at issue was the Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Elections Campaign Act Amendments of 1974, 88 Stat. 1263. See 2 U.S.C.S. 431 et. seq. for current law.
19. Buckley, at 13.
20. The Court stated:

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

424 U.S. at 19.

21. 391 U.S. 367 (1968).
22. Buckley, at 16-17. The government may adopt reasonable time, place and manner regulations, which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication. Buckley at 19. (citing U.S. v. O'Brien, 391 U.S. 367 (1968) (burning of draft card not protected as free speech). Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975) (drive-in theatres prohibited from showing films containing nudity); Adderly v. Florida, 385 U.S. 39 (1965)(trespass convictions stemming from peaceful protest on county jail property upheld); Kovacs v. Cooper, 336 U.S. 77 (1949)(regulation of sound truck upheld).
23. Buckley, at 16.
24. Id. at 16 (citations omitted).
25. Nixon, at 386.
26. Id. (citing Buckley, at 25, 30); see also Federal Election Comm'n. v. Colorado Republican Federal Campaign Comm., 121 S. Ct. 2351, 2361 (2001) (Colorado II).
27. Buckley, at 28-29.
28. Id. at 20. According to the Court, the Act's contribution limitations:

focuse[d] precisely on the problem of large campaign contributions - the narrow aspect of political association where the actuality and potential for corruption have been identified - while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.

Id. at 28.

29. Id. at 28-38.
30. See Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 121 S. Ct. 2351 (2001).
31. Buckley, at 21.
32. Id. at 39.
33. Id. at 54-59.
34. Id. at 53.
35. Id. at 54.
36. Id. at 60-84.
37. Id. at 66, citing NAACP v. Alabama, 357 U.S. 449 (1958) Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961).
38. Id. at 66-68.
39. Id.
40. Coordinated expenditures under the FECA and New Hampshire election law are expenditures by the political party, a political committee, or an individual that are made in cooperation or consultation with the candidate, his or her committee, or any agent of the candidate. Generally, coordinated expenditures are treated as contributions to the candidate. In New Hampshire they would count towards the voluntary spending cap, if applicable. RSA 664:5-a. See also 2 U.S.C. 431, (17) defining independent expenditure, RSA 664:2, IX defining expenditure, and RSA 664:2, XI defining independent expenditure as one made "without cooperation or consultation with any candidate, or any authorized committee or agent of such candidate, and which are not made in concert with, or at the request or suggestion of, any candidate . . . ."
41. Buckley, at 83-84.
42. 205 F. 3d 445, 465-66 (1st Cir. 2000) citing Vote Choice, 4 F.3d at 32.
43. Buckley, at 77.
44. Id. at 78.
45. No cases were found expressly addressing the application of this element of the Buckley holding to New Hampshire election law. RSA 664:2 in its definitions of "Contribution" and "Expenditure" utilizes the phrase "for the purpose of influencing." Stenson, discussed further in this article, however, does address the dichotomy between express or explicit advocacy and implicit candidate advocacy or issue advocacy.
46. Buckley, at 79.
47. Id.
48. Id. at 80.
49. Id. at 41-44.
50. Id. at 41, quoting Collins:

[T]he supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning . . . . Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.

Thomas v. Collins, 323 U.S. 516, 535 (1945).

51. Id. at 44.
52. Id. at 45.
53. Id. at 44, n.52.
54. Id. at 45-46.
55. Id.
56. Id. at 46-47. See also fn. 40 infra, discussing the meaning of "coordinated expenditures."
57. Id. at 45-46.
58. Id. at 96-98.
59. Id. at 96.
60. See generally, Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (applying Buckley analysis to state election contributions limits).
61. See, e.g., Buckley, 424 U.S. at 85-109, 96 S.Ct. at 666-677; see also Republican Nat'l Comm. V. FEC, 487 F. Supp. 280, 283-86 (S.D.N.Y.) (three-judge court) (RNC I), aff'd. 455 U.S. 955, 100 S.Ct. 1639, 64 L.Ed2d 231 (1980), ; Republican Nat'l Comm. v, FEC, 616 F. 2nd 1, 2 (2nd Cir.) (en banc) (adopting reasoning of RNC I in parallel proceeding), aff 'd 445 U.S. 955, 100 S.Ct. 1639, 64 L.Ed.2d 231 (1980) (public funding). See also, Vote Choice , Inc. v. Destefano, 4 F.3d 26(1st Cir. 1993) (upholding public financing of elections, contribution differentials and and required free television time for voluntary cap adherents) and Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552 (8th Cir. 1996), cert. denied, 520 U.S. 1229 (1997); Kennedy v. Gardner, Docket no. 98-608-M (D.N.H. Sep. 30, 1999) (contribution differentials).
62. Daggett V. Commission On Governmental Ethics & Election Practices, 205 F. 3d 445, 470 (1st Cir. 2000) (citing Gable v. Patton, 142 F.3d 940, 949 (6th Cir. 1998)).
63. See Wilkinson v. Jones, 876 F. Supp. 916 (W.D. Ky 1995) (striking as coercive a voluntary cap scheme that limited non-participants to $100 contributions, an amount that court found to be in effect a penalty, and where the effective permissible contribution differential was 15 to 1): see also Kennedy v. Gardner, Docket No. 98-608-M (D.N.H. Sep. 30, 1999) (distinguishing New Hampshire voluntary cap scheme from Kentucky's scheme).
64. Daggett, at 470.
65. Federal Election Commission v. Mass. Citizens For Life, Inc., 479 U.S. 238 (1986).
66. Id. at 249.
67. Id. at 262-264.
68. See, Federal Elections Commission v. Christian Action Network, 110 F.3d 1049 1051(4th Cir. 1997);. Maine Right To Life Committee v. Federal Elections Commission, 914 F. Supp 8, 12 (1996) aff'd., 98 F.3d 1(1st Cir. 1996). See also, Federal Election Commission v. Central Long Island TaxReform Immediately Committee, 616 F.2d 45 (2d Cir. 1980); Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir. 1987) (adopting three prong test for express advocacy).
69. Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir. 1987) Furgatch involved a suit by the Federal Election Commission against an individual for failing to report an independent expenditure, the purchase of an ad just before election day addressing President Carter's 1980 re-election bid. The ad included the phrase "Don't let him do it." At issue was whether this ad was express advocacy, the Ninth Circuit held that it was.
70. Id. at 864.
71. 914 F. Supp 8, 12(1996) aff'd., 98 F.3d 1(1st Cir. 1996). Maine Right to Life involved a challenge by a non-profit corporation, which accepted business corporation contributions, of FEC regulations that defined express advocacy, in part using the Furgatch three part test.
72. Faucher v. Fed. Election Comm'n., 928 F. 2d 468 (1991). Faucher involved a challenge to an FEC rule that would have permitted corporations to prepare and distribute voter guides only if the guide was neutral on the issues it covered. The rule was found an unconstitutional restriction on issue advocacy.
73. Id. at 471.
74. 914 F. Supp. at 13, citing Buckley, 424 U.S. at 76-77.
75. Colorado Republican Campaign Committee v. FEC, 518 U.S. 604 (1996).
76. Id. at 619. See, Buckley, 424 U.S. at 23-38.
77. 518 U.S. at 619
78. RSA 664:14; RSA 664:16
79. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 353 n15 (1995) (quotations omitted) (citing First Nat. Bank of Boston v. Bellotti, 435, U. S. 765, 790 (1978)).
80. Id. at 357.
81. Id. at 348-49.
82. Id. at 353 (quoting First Nat. Bank of Boston v. Bellotti, 435, U. S. 765, 777 (1978)).
83. Id.
84. Id. at 357.
85. Seymour v. Elections Enforcement Comm'n, 762 A.2d 880, 888 (Conn. 2000).
86. Id. (quoting Federal Election Commission v. Survival Education Fund, Inc., 65 F.3d 285, 297 (2d Cir. 1995)).
87. Federal Election Commission v. Survival Education Fund, Inc., 65 F.3d 285, 297 (2d Cir. 1995).
88. 99 F.3d 8 (1996)
89. Docket no. 96-574-B (D.N.H. June 5, 1998).
90. Docket no. 98-608-M (D.N.H. Sep. 30, 1999).
91. Docket no. 00-514-JD (D.N.H. Aug 24, 2001)
92. 99 F.3d at 16. The State had determined that the completed expenditure constituted independent advocacy beyond the scope of the statute. No such determination had been made at the time of the lawsuit with respect to any projected expenditures. Id.,
93. Id, at 17-18.
94. Id. at 19.
95. The Court observed:

Accepting this argument would require us to carve out an unwarranted exception to a settled constitutional rule. We decline to do so. An organization's right to unfettered political expression and advocacy is just as substantial within New Hampshire as without.

Id. at 19, fn.8.

96. In Kennedy I, the Court observed:

The challenged statutory provisions here differ from the statutory schemes at issue in Buckley and Vote Choice both because the state has chosen a coercive means to achieve adherence to its spending cap and because the condition those laws impose on gaining access to the ballot - limiting the constitutional right to make campaign expenditures - bears no reasonable relationship to any legitimate reason for controlling ballot access.

Rather than choosing to encourage compliance with a spending cap by providing incentives such as public funding or free television time, New Hampshire has opted to penalize non-complying candidates by making it more difficult for them to gain access to the ballot.

Kennedy I, slip op. at 10-11.

97. Id., at 18-19., citing Vote Choice , Inc. v. Destefano, 4 F.3d 26(1st Cir. 1993) (upholding public financing of elections, contribution differentials and required free television time for voluntary cap adherents) and Rosenstiel v. Rodriguez,101 F.3d 1544, 1552 (8th Cir. 1996), cert. denied, 520 U.S. 1229 (1997).97 See also, Buckley, 424 U.S. at 85-109, Republican Nat'l Comm. V. FEC, 487 F. Supp. 280, 283-86 (S.D.N.Y.) (three-judge court) (RNC I), aff'd mem. 455 U.S. 955, 100 S.Ct. 1639, 64 L.Ed2d 231 (1980); Republican Nat'l Comm. v, FEC, 616 F. 2nd 1, 2 (2nd Cir.) (en banc) (adopting reasoning of RNC I in parallel proceeding), aff d'., 445 U.S. 955, 100 S.Ct. 1639, 64 L.Ed.2d 231 (1980).
98. Kennedy v. Gardner, (Kennedy II) Docket no. 98-608-M (D.N.H. Sep. 30, 1999), at 12-13 (citing Mass Citizens For Life v FEC, 479 U.S. at 257-58).
99. Id. at 13.
100. The Court quoted the Declaration of Purpose of RSA 664, which provides in relevant part:

The state has a compelling interest in encouraging potential candidates to run for office and in having those races be competitive to ensure greater and more effective representation of the people of the state of New Hampshire. Reasonable political campaign budgets allow a candidate to spend thousands of hours meeting with individuals rather than thousands of hours meeting the ever increasing demand for campaign funding.

Unimpeded access to the ballot is crucial to the realization of the constitutional guarantee of a representative form of government. The philosophical basis for democracy is the equal opportunity to participate. Greater participation increases effective representation, preserving the political power guaranteed to the people by the constitution. Expenditure limitations will allow greater ballot access, freer competition of ideas through individual speech and interaction, and more competitive campaigns.

101. Id. at 12 quoting FEC v. Mass Citizens For Life, 479 U.S. 238, 265 (1986) ("[w]here at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation.").
102. Stenson v. McLaughlin, 2001 D.N.H. 159, 15 (2001).
103. Id.
104. Buckley, at 57.

The Author

Attorney Orville Brewster "Bud" Fitch II is an Assistant Attorney General in the Civil Bureau of the Attorney General's Office, Concord, New Hampshire.

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