39 Pages Posted: 18 Jul 2013
Date Written: July 17, 2013
A prominent politician once observed that, "You can either have free speech or fair elections, but you can’t have both." In the view of this article, that has it precisely backwards. In fact, you cannot have one without the other. The election of 2012 tested that thesis because it was the most expensive federal election in history and it contained what many claimed was a great deal of negative campaign speech and rhetoric. This paper argues that, under the First Amendment, election speech is supposed to be "uninhibited, robust and wide-open" and unrestrained in both quantity and content. Accordingly, the increase in campaign spending and activity by candidates, parties, non-profits organizations, labor unions, corporations and so-called "super pacs" is a good thing for free speech principles and democracy, not a bad thing, and efforts to impose greater limitations on campaign funding should be opposed. The same is also true for the supposed increase in the "negative" nature of the content of much campaign speech. There too a proper view of the First Amendment would applaud and encourage such robust debate about core issues of governance. The article concludes by advocating a number of reforms which will make our electoral speech even more vigorous than it is now.
Keywords: First Amendment, Free Speech, Elections, Campaign Finance
Suggested Citation: Suggested Citation
Gora, Joel M., Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist? (July 17, 2013). Howard Law Journal, Vol. 556, No. 3, 763; Brooklyn Law School, Legal Studies Paper No. 346. Available at SSRN: https://ssrn.com/abstract=2295052