58 Pages Posted: 1 Apr 2013
Date Written: March 28, 2013
The United States Supreme Court simply got it wrong when it concluded that spending money is essentially the equivalent of speaking and therefore entitled to the same high level of First Amendment protection. By doing so, the Court erroneously rejected other analytical frameworks it has used for other content-neutral restrictions and decided to instead apply a much higher level of scrutiny. While money may - like a bullhorn - enable, facilitate, or help to disseminate speech, it is simply not speech itself.
The Court has thus employed - strict or - close scrutiny to restrictions on campaign expenditures and contributions, respectively, in an effort to promote First Amendment rights, the Court's approach has ironically often hindered rather than bolstered the First Amendment interest that it seeks to protect.
When analyzing the constitutionality of campaign finance restrictions, the Court has consistently adopted an instrumentalist view of the First Amendment focused on the listener, rather than an individual rights view focused on the speaker. Under the instrumental view of the First Amendment, the importance of protecting speech lies with fostering an open and robust market-place of ideas and democratic self-government.
While the Court has adhered reliably to an instrumental, listener-based philosophy of speech, it has been less than consistent about how best to promote these First Amendment values. On some occasions, the Court has viewed campaign finance restrictions as harming listeners' interests. In these cases, liberty or personal autonomy may be the Court's goal. At other times, the Court has seen such restrictions as promoting listeners' rights. In these cases, the Court views equality as its primary goal. In both instances, members of the Court believe they are promoting First Amendment rights under an instrumental perspective; they just disagree about which ideals to prize and diverge in deciding whether to uphold or strike down particular campaign finance restrictions.
Campaign finance restrictions actually promote First Amendment values. With restrictions on spending (spending that enables speech, but is not speech itself), listeners in effect will hear from a greater depth and breadth of sources, rather than merely from a relatively small group of moneyed interests that has the ability to drown out non-spending or low-spending speakers.
Suggested Citation: Suggested Citation
Levinson, Jessica A., The Original Sin of Campaign Finance Law: Why Buckley v. Valeo is Wrong (March 28, 2013). 47 University of Richmond Law Review 881 (2013); Loyola-LA Legal Studies Paper No. 2013-18. Available at SSRN: https://ssrn.com/abstract=2241869