Liberty, Equality, Bribery, and Self-Government: Reframing the Campaign Finance Debate

Abstract

Campaign finance law is often framed as a tension between liberty and equality. On one side is the freedom of speech, which the Supreme Court has interpreted to include the freedom to give and spend money in connection with elections. On the other is democratic equality and the idea that we are each entitled to an equal voice in choosing our representatives. If this is the tension that underlies the current jurisprudence, it would appear that liberty has won out and equality has been vanquished.

But appearances can be deceiving. This facile contrast between liberty and equality overstates both what the relevant cases have held, and it ignores the ways in which different understandings of these values are present in other aspects of our constitutional jurisprudence. This chapter argues that the constitutional doctrine relevant to assessing campaign finance cases includes the equality-based doctrines governing political participation and the liberty-based commitment to self-government.