J. Skelly Wright's Democratic First Amendment

Abstract

In Buckley v. Valeo, a 1976 challenge to the post-Watergate Federal Election Campaign Act (FECA), the Supreme Court held that campaign finance regulations trigger First Amendment scrutiny because of the significant role that money plays as a tool of communication in modern society and recognized only one government interest important enough to justify spending limits--preventing corruption or the appearance of corruption. Judge J. Skelly Wright was one of the earliest and most persuasive critics of that decision. Wright recognized that at stake in Buckley were not just competing interpretations of the First Amendment, but also competing understandings of how our democracy works. This essay, written for a symposium honoring Judge Wright, argues that his early approach was the right one. Rather than tinkering around the margins of an increasingly limited doctrine, we should be talking explicitly about the purpose of First Amendment rights in the context of the kind of democracy we want to have.

Keywords: Buckley v. Valeo, Federal Election Campaign Act, Judge J. Skelly Wright, first amendment, campaign law