CAMPAIGN FINANCE, FREE SPEECH, AND BOYCOTTS.

• Author: Torres-Spelliscy, Ciara
• Position: Thirty Sixth Annual Federalist Society National Student Symposium on Law and Public Policy

Today I'm going to talk about free speech, money and politics, and the right to boycott. This [referring to slides in my PowerPoint] is a picture of my father. (1) He was a sculptor and a very creative thinker, and when I was a youngster, he used to say to me, "Ciara, remember to ask the big questions." The big question that I'm going to ask today is: Will fear of harassment prevent us from having a transparent democracy?

Now I would submit to you that at the heart of campaign finance is a desire for accountability, (2) and in a democracy, we cannot have accountability without a certain degree of transparency. (3) If you look online, you can find a lot of information about people's political speech and their political expenditures and their contributions to candidates. (4) And whether you think this is a good or a bad thing usually depends on your prior notions about campaign finance. On the good side, having all of this data online really democratizes access. (5) It means that everyday citizens can look up who's giving money to their senator, to the candidates for president, to candidates for Congress, and it allows for the press to write their follow-the-money stories. On the downside, it could lead to harassment, (6) which is one of the things I want to focus on today.

I want to pause here. This is Rick Santorum getting glitter-bombed. (7) I do not endorse harassment of any type, including glitter-bombing Rick Santorum. But the fear of harassment is one of the things that people who object to campaign finance disclosure regimes often point to. (8) And usually when they are litigating campaign finance disclosure law, saying that it is unconstitutional, one of the things that they will point to is the NAACP v. Alabama (9) line of cases. (10) And they will make the argument that NAACP allows for anonymous political spending. (11) I think that's wrong on a number of fronts, including that it wasn't a case about campaign finance.

Another reason why I worry about this is I think it's just an ahistorical use of this case. So what did they actually do in the case? The Supreme Court was looking at the NAACP's request to keep their membership list confidential from the state of Alabama in the 1950s. (12) This case, in its time, was rightly decided, and if anything, the Supreme Court underplayed the risk faced by individuals who were known to be members of the NAACP. One of the things that the Supreme Court pointed out is that members of the NAACP faced the threat of physical coercion. (13) The reason why I think that they undersold that is, actually, during the '50s and '60s, you could be killed for your participation in the NAACP. And so what do I mean by that? I mean it literally.

I'm from Florida. This is a Christmas Day bombing in Florida that killed a member of the NAACP and his wife on Christmas Day. (14) That's '51. Then George Washington Lee, who was an NAACP leader in Mississippi, is killed in '55. (15) Thomas Brewer, an NAACP leader, is killed in Georgia in '56. (16) One of the few ones I may mention today that you've already heard of, Medgar Evers, is killed in Mississippi in '63. (17) But the killings go on after that. Vernon Dalmer is killed when his house and car are firebombed in '66. (18) And Wharlest Jackson was also killed in a car bombing in '67. (19)

So why doesn't this chapter of dark history explain what the Supreme Court should do in a campaign finance case? Partially, I think--I hope--that this type of racially and politically motivated violence is something that is in our past. But I think what motivated the Supreme Court in looking at campaign finance law is this other different dark chapter in American history. Between Buckley v. Valeo (20) and the Roberts Court, the approach of the Supreme Court when looking at campaign finance laws was the fear of another Richard Nixon. (21) And one of the things that came out in the Watergate hearings around Richard Nixon was his secretive fundraising and his illegal fundraising. (22) There was an enormous amount of illegal corporate contributions that came in to his campaign. (23)

Now, as a result of Watergate and Nixon, we got the FECA, the Federal Election Campaign Act, in '74. (24) There are many different aspects of FECA that Mr. Smith already alluded to, but one additional part of FECA is that it requires disclosure, (25) and that part of FECA was also challenged in the Buckley case. (26) In the Buckley case, the Supreme Court distinguishes NAACP v. Alabama, finding that there are three governmental interests that justify disclosure of money in politics. (27) They are the voter informational interest, the anti-corruption interest, and the anti-circumvention interest. (28) They do carve out an exception within Buckley itself--Buckley is a hundred pages long. It's a long and ornate opinion. There is an exception for minority parties if they would be subject to the type...