Neutral principles and some campaign finance problems.

AuthorMcGinnis, John O.
PositionAbstract through I. The Roberts Court's Application of Free Speech Principles to Campaign Finance Regulation B. Free Speech Principles 3. The Nature of the First Amendment, p. 841-881

Abstract

This Article has both positive and normative objectives. As a positive matter, it shows that the Roberts Court's campaign finance regulation jurisprudence can be best explained as a systematic effort to integrate that case law with the rest of the First Amendment, making the neutral principles refined in other social contexts govern this more politically salient one as well. It demonstrates that the typical Roberts Court majority in campaign finance cases follows precedent, doctrine, and traditional First Amendment theory, while the dissents tend to carve out exceptions at each of these levels.

As a normative matter, it argues that following neutral principles is particularly important in the application of the First Amendment to campaign finance for three reasons. First, campaign finance disputes bear directly on the political process that determines substantive results across the entire legislative policy space, making the danger of political decision making particularly high. Second, the First Amendment itself reflects a distrust of government officials, and the more a constitutional provision reflects an economy of distrust, the more it requires judicial constraint, which adherence to neutral principles can provide. Third, given that politicians have much to gain from skewing campaign finance regulations in their favor and that judges are appointed by politicians, neutral principles help avoid partisanship and the appearance of partisanship in judicial decision making.

Finally, the Article confronts the most important arguments for departing from standard First Amendment principles in campaign finance and demonstrates that they have far-reaching implications, in that they would allow the legislature to regulate the press or even academics because of their disproportionate influence in politics. But it also shows that, even taken on their own terms, the proposals for judicial reform of First Amendment law in the campaign finance area are deeply flawed. In particular, the idea that the Constitution permits legislators to restrict the freedom of speech for fear it will distort their decision making has no basis in the Constitution. The Constitution provides no baseline for judging distortion, and indeed, its structure permits legislators to take into account the information generated by the First Amendment's spontaneous order of freedom rather than follow raw popular sentiment.

TABLE OF CONTENTS INTRODUCTION I. THE ROBERTS COURT'S APPLICATION OF FREE SPEECH PRINCIPLES TO CAMPAIGN FINANCE REGULATION A. The Seven Roberts Court Campaign Finance Regulation Decisions B. Free Speech Principles 1. Doctrinal Conclusions 2. Constitutional Tests 3. The Nature of the First Amendment 4. Arizona Free Enterprise Club 5. Williams-Yulee v. Florida Bar 6. Citations to First Amendment Cases 7. Moving Further Toward Neutral Principles in Campaign Finance II. THE NEED FOR NEUTRAL PRINCIPLES IN CAMPAIGN FINANCE REGULATION III. OBJECTIONS TO APPLYING NEUTRAL FREE SPEECH PRINCIPLES A. Originalist Claims B. Contrary Precedents C. Constitutional and Political Theory CONCLUSION CITATION APPENDIX INTRODUCTION

For the Roberts Court, campaign finance regulation raises the most conceptually deep, most politically consequential, and most persistently divisive constitutional questions. The questions are deep because they highlight a fundamental conflict within liberal democracy itself. Although some have seen liberal democracy as a coherent and stable state to which history is inevitably trending, (1) the concept contains within itself an inherent tension: the relative priority between liberty, the voluntary and spontaneous ordering generated by rights of individuals, democracy, and top-down ordering through collective decision making.

Giving priority to liberalism puts rights at the center of a regime. (2) Under this view, the exercise of free speech rights generates a civic order on which democracy rests, but which it must not control or disturb. Giving priority to democracy, in contrast, puts the authority of the people to govern themselves at the center, even at the expense of individual rights. (3)

Debate at election time raises the conflict between speech rights and democracy in its most acute form and along multiple dimensions. First, democracy gives every citizen one vote with equal consequences at the ballot box. (4) The First Amendment gives citizens equal rights against government restraints on their speech, (5) but equal rights naturally lead to unequal influence because of differences in endowment, position, and inclination. A few people are articulate, but most are not. Some people are wealthy, others own or work for the media or academia, and still others command attention through their own celebrity--but most have none of these advantages. Some people are so intensely interested in specific government projects or particular political ideals that they join together to amplify their influence. But many, if not most, citizens are rationally uninterested in the details of policy and politics and do not care to speak out individually or in groups. (6) Democracy gives everyone an equal vote, but freedom inevitably leads to unequal voice. (7)

Second, elections in a democracy reflect a set of specific procedures for selecting representatives and occur at a set place and time. But the spontaneous order of civic discourse that the First Amendment creates is not bounded in place or time. And that discourse frames the campaign issues that determine which candidate is elected. In particular, the media importantly shapes the agenda for the election long before the campaign period. (8) But even before the media helps set the agenda, it is influenced by political and social theorists. (9) Speech rights naturally embrace the continuity of political and social discourse. In contrast, a focus on the mechanisms of democratic choice suggests that the election season is a severable aspect of civic life.

Finally, representative democracy empowers legislatures, which can use that authority to pursue ideals, including the ideal structures for political campaigns. In contrast, the First Amendment is premised in part on a distrust of legislators, however much they claim to be motivated by political ideals. This premise underscores that, at least when expression is concerned, government agents may not be faithful servants of the public's interests, but rather of their own. (10) Thus, representative democracy and elections fundamentally contrast with First Amendment speech rights in their nature, in their temporal scope, and in the trust attributed to government officials.

The Roberts Court's campaign finance regulation jurisprudence is distinctive because it uses long-standing constitutional doctrine shaped outside the electoral context to resolve these conflicts between free speech and representative democracy. (11) First, precedent shows that the First Amendment protects the exercise of free speech rights even if these rights are routes to unequal influence and even if individuals band together in partnerships or corporations to maximize that influence. Equalizing the exercise of rights has never been a legitimate governmental purpose for regulating expression because a right of free speech naturally leads to unequal influence. Moreover, the Constitution does not provide any baseline for measuring equality of influence. And trying to equalize the influence of those with money naturally exacerbates the inequality of influence along other dimensions such as celebrity and media access.

Second, both precedent and tradition demonstrate that a political message's proximity to an election cannot be a justification for regulating it. As shown by the outcry over the government's claim in Citizens United v. FEC that it could ban books about candidates near an election, it would be intolerable to subject media to more regulation at election time than at other times. (12) The case law also shows that individuals enjoy no less robust rights than those in the professional media, indicating that the proximity of their messages cannot be a basis of regulation either. (13) More generally, given that political discussion affecting political campaigns is not limited to the election season, the timing of citizens' messages about politics cannot serve as a principled basis for regulation. In contrast, unlike private citizens, government officials can use their office for corrupt purposes. Thus, electoral contributions to candidates can be regulated if the regulations meet other First Amendment standards.

Third, previous First Amendment cases provide stringent standards for regulations focused on expression. These precedents have repeatedly affirmed a distrust of regulation in this area and have required the government to meet a number of doctrinal tests to counter this skepticism. (14) For instance, the government must choose a narrowly tailored means of achieving even a legitimate, content-neutral objective if its regulation targets expression. (15) The skepticism embodied in these traditional tests can hardly be suspended for regulation connected to electoral messaging when the positions of the legislative regulators are themselves at stake.

Respecting settled principles is essential in campaign finance regulation because there is no area in which political actors are more interested in reordering a constitutional regime for their own benefit. Political actors include the Justices themselves, who were all appointed in a political process and have distinct political affiliations. To depart from the Court's long-established First Amendment principles in the context of electoral messaging and contributions--without a persuasive argument for reversal in the original meaning of that Amendment--would suggest that the Supreme Court is trying to skew political campaigns for ideological, and indeed partisan, reasons. To countenance laws, like many of...

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