Does this Maryland cross violate our Constitution? That very question is currently before the Supreme Court.
The Roberts Court’s decisions on campaign finance are its most important, because campaign regulation shapes the elections that affect all policy outcomes. No issue has generated more unyielding divisions on the Court. A fault line generally divides the principles of one set of the Justices—Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito—from those generally in dissent—Justices Ginsburg, Breyer, Sotomayor, and Kagan currently (and Souter and Stevens when they were on the Court).
I have a new paper that explains the division of the justices. The majority believes that campaign finance regulations should be analyzed under free speech principles established in other contexts. The latter generally seeks to decide campaign finance regulation issues by considerations unique to campaign finance regulation.
This doctrinal disagreement plays out at a variety of levels. The Citizens United majority protected corporations in the context of campaign finance regulation as the Supreme Court has in other areas of the First Amendment. The dissenters would not have. That majority rejected as interests asserted for the regulation, like concerns over distortion or equality, when they were rejected elsewhere in First Amendment jurisprudence. The dissenters would have accepted such interests as justifications. The Justices also disagreed on the doctrinal tests to be applied to assess the bona fides of campaign finance regulation. The Citizens United and McCutcheon majorities applied traditionally stringent tests for justifying intrusion on First Amendment interests. The dissenters would have given deference to the legislature.
Finally, the majority and the dissenters persistently disagreed on the structure of the First Amendment itself. The dissenters would have made a conception of democratic self-governance count in defining the right itself, thus changing the nature of free speech when it was electoral expression. Together, these pervasive and consistent differences in the analysis between the Justices in the majority and the Justices in the dissent make an overwhelming case that the core disagreement goes to whether First Amendment principles settled in other areas of the law apply to campaign finance regulation.
I also argue that the majority’s approach is generally correct, because deciding the campaign finance cases under general free speech law is an application of neutral principles—principles that are generalizable beyond the particular nature of the dispute. Deciding cases under neutral principles is important in any area of law, but particularly so in the First Amendment.
First, while most constitutional disputes are about particular substantive results, First Amendment disputes bear directly on the political process that determines substantive results across the entire legislative policy space. Thus, if the Supreme Court does not apply neutral principles, it will not only be engaging in ad hoc decision making itself, but it also will be systematically distorting the entire range of decision making of the political branches.
Second, the First Amendment is premised on a view that the government cannot be trusted with decisions about speech. But even though judges themselves are government officials, the Court necessarily has to make decisions about when and how the First Amendment will apply. Given the special problems of trust in this area, the Court has a particular need to make its decisions according to neutral principles in order to make its method of interpretation reflect the underlying nature of the Amendment. The more a constitutional provision reflects an economy of distrust, the more it requires judicial constraint, which adherence to neutral principles can provide.
Third, campaign regulations are conceived by politicians who strive for reelection and the defeat of their opponents. The members of the Supreme Court are appointed through a political process dominated by these same politicians. To dispel the appearance of partisanship, it is particularly important to show that the Court’s campaign finance regulation jurisprudence follows First Amendment neutral principles.