First Amendment Freeze Play: Bennett's Strategy for Entrenching Inequality

9 Pages Posted: 13 Jun 2016 Last revised: 15 Jun 2016

Frank A. Pasquale III

University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project

Date Written: June 10, 2016

Abstract

For decades, the U.S. Supreme Court has struck down campaign finance limitations by arguing that deregulation promoted more speech. As Justice Roberts opined in Citizens United, "it is our law and our tradition that more speech, not less, is the governing rule." But in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2011), the Court struck down a state effort to increase the communicative capacities of certainly publicly funded candidates.

Prior deregulatory campaign finance jurisprudence — strained as it was — at least paid lip service to the ideal of promoting more speech. In Bennett, the Court announced that even speech-promotion could be trumped by another, higher purpose: freezing into place extant disparities in communicative resources. But just as the 14th Amendment does not enact Mr. Herbert Spencer's Social Statics, this principle of power entrenchment should have no place in the American constitutional order. The narrow majority opinion in Bennett should be treated with the same degree of respect for precedent that it gave to milestones of speech-promoting campaign finance jurisprudence.

Keywords: first amendment, election law, Bennett, matching funds, Supreme Court, campaign finance, campaign funds, deregulation, electoral law

Suggested Citation

Pasquale, Frank A., First Amendment Freeze Play: Bennett's Strategy for Entrenching Inequality (June 10, 2016). 164 University of Pennsylvania Law Review Online 215 (2016); U of Maryland Legal Studies Research Paper No. 2016-29. Available at SSRN: https://ssrn.com/abstract=2794196

Frank A. Pasquale III (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

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Yale University - Yale Information Society Project ( email )

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