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Why the Roberts Court Is Right about Campaign Finance and Free Speech

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.

Reader Discussion

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on February 21, 2016 at 19:07:04 pm

"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."

And yet, it can be (somewhat reasonably) argued that statements #1 and #2 do not necessarily (or even solidly) support the conclusion in statement #3. since #2 is derivative of #1, how is it that #3, which permits #1 and #2 to continue unabated supports something other than the rather dire circumstances implicit in the essay?

I, for one, do not like corporation financial contributions to electoral campaigns. The possibilities for mischief are to well known to detail here. Yes, corporate personhood exists - it is a legal fiction - albeit a rather valuable one, I admit and in fact embrace.

Yet, I am not so certain that this fictional person *ought* to have electoral privileges. Yes, a corporation is comprised of many (innumerable) individual persons; but note that it is persons and not citizens that comprise the corporate entity. Shall we give electoral influence to a Norwegian, a Saudi, etc (Obama's foreign inflow of funds during his campaigns notwithstanding)?
As to the assertion that by prohibiting corporate contributions, i.e., corporate speech, we are thereby depriving the "citizen" investors of the corporation THEIR 1st amendment rights - BALDERDASH!!!!
Each and every investor, who would otherwise have such a right under the 1st Amendment STILL possess such rights as they freely choose to exercise - this is done by making a personal contribution and / or voting!!
Thus - no *real* person / citizen is denied speech rights.

Does one not find it curious that when arguing against compelled *union* dues, one argument has been (and quite properly so) that to allow the union to compel such dues / payments in an environment where the union will make political contributions to a person or party / cause that I, as a fictional union member) oppose is to COMPEL the Union member to support a cause which may violate his / her own conscience.
How is this different, if say, I own four gazillion shares of Acme RoadRunner Traps Inc. and Acme decides to give $100K to the RoadRunner Protection Society's candidate for Governor? Am I not being compelled to "voice" approval of this knucklehead?

You want something neutral - campaign contributions for INDIVIDUAL US CITIZENS ONLY - no limits.

How is that for neutral???

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gabe
on February 22, 2016 at 10:50:20 am

Oops, forgot the disclaimer:

"Now, if only we can figure out what to do with MEDIA corporations."

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gabe

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