Academic journal article William and Mary Law Review

Neutral Principles and Some Campaign Finance Problems

Academic journal article William and Mary Law Review

Neutral Principles and Some Campaign Finance Problems

Article excerpt

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. …

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