Buying an audience: justifying the regulation of campaign expenditures that buy access to voters.

• Author: Weisbard, Ari

This Comment suggests a new constitutional approach to the regulation of political expenditures. The approach pushes beyond the question of whether political expenditures are more like "speech" or more like "property" (1) and instead focuses on which types of expenditures fit into each category. Some expenditures, but not all, are necessary to create speech. These "speech-enabling" expenditures cannot be meaningfully disentangled from the communication they make possible. Other expenditures, however, provide something of value aside from the speech itself as an incentive for individuals to listen to the speech. The classic example is expenditures on advertising, which reach listeners or viewers because they wish to consume the content with which the advertising is packaged. These "audience-buying" expenditures function as property and consequently deserve less protection. Courts should uphold campaign finance regulations that are closely tailored to protecting speech-enabling expenditures while regulating audience-buying expenditures in order to enhance political equality.

Individuals and organizations with access to financial resources to buy advertising can offer audiences an attractive exchange: viewers need not pay for television programs they wish to watch because they also watch the commercials packaged along with them. Advertisers usually do not pay their audience directly, but instead pay intermediary media organizations, which in turn offer audiences content they value. Though indirect, this method of providing an incentive is functionally the same as offering a DVD with entertaining content or anything else the audience values as an incentive to view the advertisement. Unlike those who can afford to advertise, those with fewer resources can reach only those who are interested in receiving their message without such an additional incentive. They can earn an audience, but not buy one.

This Comment accepts the need for incentives to encourage the public to tune in to a larger number or greater variety of political messages than they otherwise would. It suggests, however, that courts should give the legislative branch leeway to design regulatory frameworks for such incentives-frameworks that would enhance political equality without compromising the First Amendment's core protection of expenditures necessary to engage in political speech.

Without advocating that all messages should receive equal attention regardless of their relative value, popularity, or speakers' intensity of feeling, campaign finance reform proponents rightly suggest that government intervention regarding political expenditures is necessary to preserve political equality. (2) These advocates generally fail, however, to distinguish among different kinds of political expenditures. They therefore present proposals that inevitably require difficult tradeoffs among the constitutional interests in individual autonomy, robust debate, and political equality. Reformers can reduce the tension between these interests by exempting from new regulation speech-enabling expenditures required for basic acts of expression and focusing instead on reducing the political inequality produced by unequal ability to expend money on buying an audience.

1. PAST ATTEMPTS TO BALANCE CONSTITUTIONAL INTERESTS IN CAMPAIGN FINANCE DECISIONS

   From the moment the Supreme Court struck down campaign expenditure limits in Buckley v. Valeo (3) to today, judicial opinions and academic scholarship have criticized Buckley for equating money with speech. (4) This critique has not persuaded a majority of the Court, which in several recent decisions has continued to apply strict scrutiny to campaign finance regulations on First Amendment grounds. (5) Indeed, few reformers would defend the proposition that political expenditures and First Amendment rights are totally unrelated. Unless reformers are willing to defend the constitutionality of a law limiting a campaign's total expenditures to a single dollar, they must come up with a principled basis for distinguishing expenditures that deserve First Amendment protections from those that do not.

   In the absence of such a principle for distinguishing between expenditures that should be treated as property and expenditures that should be treated as speech, the Court has created odd compromises among the "competing constitutionally protected interests" (6) of free speech, equality, and democracy. After Buckle), held that contribution limits burden constitutional interests less severely than total expenditure limits, the Supreme Court has tended to focus on the form and level of regulation instead of the nature of the expenditures that would be regulated. The Court inquires into whether expenditures are made in coordination with campaigns or independently (7) and whether contribution limits are high enough for "effective campaigning" or are "too low and too strict." (8) These distinctions seem artificial because the questions of who contributes or spends money and in what amounts seem tangential to the question of whether the spending impinges on fundamental rights or democratic values. (9)

   The Supreme Court's most recent major campaign finance cases, Randall v. Sorrell, (10) FEC v. Wisconsin Right to Life, Inc. (WRTL), (11) and FEC v. Davis, (12) demonstrate that these artificial distinctions are unstable and are beginning to erode. Prior to these cases, the Supreme Court had never found any contribution limits to be "too low"; it had rejected a facial challenge to the Bipartisan Campaign Reform Act's (BCRA) limitation on "electioneering communications" by independent groups; and it had given Congress significant latitude to offer incentives for candidates to accept public funding. (13) In Randall, however, the plurality struck down Vermont's contribution limits for placing too heavy a burden on society's interest in competitive and adequately funded elections. (14) In WRTL, the Court held that independently run political advertisements that were not the "functional equivalent of express advocacy"--a category it defined narrowly--were exempt from BCRA's limitations. (15) In Davis, the Court struck down the "Millionaire's Amendment," which raised contribution limits for opponents of self-financing candidates, holding that the law would "impermissibly burden" the self-financing candidate's First Amendment rights. (16) While the Court has not yet accepted Justice Thomas's libertarian view of the First Amendment in campaign finance, (17) these cases have significantly narrowed the possibilities for meaningful campaign finance regulation. (18) In the wake of these decisions, campaign finance reformers must identify a...