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

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