Wholly Native to the First Amendment: The Positive Liberty of Self-Government

Abstract

The Supreme Court has unequivocally and repeatedly rejected as “wholly foreign to the First Amendment” any suggestion that legislatures can regulate electoral speech in order to foster political equality. The Court is not oblivious to the distorting effects on the political process of large financial contributions. Rather, its reluctance to accept regulation of campaign speech in the name of political equality arises out of its skepticism about legislative purposes, in this arena, and its recognition that its institutional role precludes it from devising a measure of adequate political equality, insofar as any such measure would be contestable.

Professor Deborah Hellman turns that recognition on its head and in so doing offers an intriguing and potentially promising avenue through which to revisit the regulatory catastrophe created by Buckley v. Valeo. The Court, she tells us, was misguided to ignore the existence of a competing positive liberty, the interest in determining “how pervasively to extend market-based principles of distribution and allocation” to influence self-government.

While Professor Hellman avoids offering a textual link for the liberty of self-government, a convincing case can be made that the positive liberty identified by Professor Hellman is quintessentially a First Amendment interest. It is beyond debate that protecting the functioning of representative government was, and remains, a core function of the First Amendment.