Freedom of Speech and Speech about Political Candidates: The Unintended Consequences of Three Proposals

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Most effective speech to the public requires money. If spending more than $1,000 on expression is outlawed, then you may not place more than a tiny ad in any major newspaper, buy virtually any television time, put up a billboard, or mail more than a few thousand newsletters. That's an extremely serious restriction on your ability to express your views.

This, of course, has obvious implications for campaign finance laws, because this means that some such laws may be unconstitutional. But it also has implications for free speech law, since the precedents set in campaign finance cases will affect the rules governing speech restrictions generally. And because campaign finance cases arouse such passions, they risk creating rules that can have unexpected -- and possibly dangerous -- consequences in many areas far outside campaign finance.

This essay aims to briefly highlight the potential unexpected consequences of three kinds of arguments about campaign finance restrictions, arguments that as it happens correspond to three opinions in the recent Nixon v. Shrink Missouri Government PAC case.(1) And if the analysis here is right, then it may well be that the Shrink Missouri majority and even the much-lambasted Buckley v. Valeo(2) actually make a good deal of constitutional sense.(3)

I. THE CONSTITUTIONAL TENSION APPROACH

Let me begin with Justice Breyer's opinion, which I found eloquent enough that I would like to quote it at some length; but let me at the same time quote another similarly eloquent opinion alongside it.

   [T]he principal dissent oversimplifies the problem faced in the campaign
   finance context. It takes a difficult constitutional problem and turns it
   into a lopsided dispute between political expression and government
   censorship. Under the cover of this fiction and its accompanying formula,
   the dissent would make the Court absolute arbiter of a difficult question
   best left, in the main, to the political branches.

   [T]his is a case where constitutionally protected interests lie on both
   sides of the legal equation.

   For that reason there is no place for a strong presumption against
   constitutionality, of the sort often thought to accompany the words "strict
   scrutiny." Nor can we expect that mechanical application of the tests
   associated with "strict scrutiny" -- the tests of "compelling interests"
   and "least restrictive means" -- will properly resolve the difficult
   constitutional problem that campaign finance statutes pose. Cf. Kovacs v.
   Cooper, 336 U.S. 77, 96 [] (1949) (Frankfurter, J., concurring) (objecting,
   in the First Amendment context, to "oversimplified formulas") (parallel
   citation omitted).

   Our judgment is ... solicited on a conflict of interests of the utmost
   concern to the well-being of the country. This conflict of interests cannot
   be resolved by a dogmatic preference for one or the other, nor by a
   sonorous formula which is in fact only a euphemistic disguise for an
   unresolved conflict. If adjudication is to be a rational process, we cannot
   escape a candid examination of the conflicting claims with full recognition
   that both are supported by weighty title-deeds.

   The plain fact [is] that the interest in speech, profoundly important as it
   is, is no more conclusive in judicial review than other attributes of
   democracy or than a determination of the people's representatives that a
   measure is necessary to assure the safety of government itself....

   Just as there are those who regard as invulnerable every measure for which
   the claim of national survival is invoked, there are those who find in the
   Constitution a wholly unfettered right of expression. Such literalness
   treats the words of the Constitution as though they were found on a piece
   of outworn parchment instead of being words that have called into being a
   nation with a past to be preserved for the future. …