Campaign Finance and Free Speech: The Extreme and the Mainstream

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Bradley A. Smith

It is often suggested that the true test of one’s commitment to free speech and the First Amendment comes when one is faced with “offensive” content or “extreme” views. I am not so sure. 

It seems to me that the ordinary American can be forgiven for not thinking that the future of free speech hinges on the ability to show videos of animals being tortured, to depict simulated child pornography, or to engage in hate-filled protests at the funeral of a deceased serviceman.[1] The traditional argument for policing efforts to ban such speech is not that not that this type of speech has much intrinsic value, but rather that these outer fringes of the free speech must be protected in order to prevent inroads into the core of First Amendment-protected speech. Put another way, we cannot ultimately trust the government to censor such “low-value” speech, over time, without invading the core. The average American, who responds to a pollster’s question or a barstool quip without, perhaps, giving the issue much thought, might, under the circumstances, be forgiven for lapses in First Amendment purity. And in the great scheme of things—at least if by the “great scheme of things” we’re talking democratic self-government—whether or not such speech is limited is probably of little importance, unless and until the government uses such limits as a lever to invade the core. 

If I am correct, then the true test of one’s First Amendment bona fides comes when speech is on the line that is not patently offensive or does not represent the extreme fringes of political discourse. It is when we encounter speech that has greater value, that has the ability to affect public policy, that may in fact shape our great experiment in democracy and self-government, but with which we disagree or firmly wish was not stated, that the First Amendment rubber truly meets the road.

The Supreme Court has repeatedly said, and I think most people would intuitively agree, that the core of the First Amendment is political speech. “The First Amendment,” the Court has said,  “affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’"[2] "[T]here is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates. . . ."[3] If I may take this one step further, the most important political speech is that which may actually persuade, change electoral outcomes, or affect public policy. 

This is where support for campaign finance “reform,” or as I prefer to more properly label it, campaign finance “regulation,” comes in. In my experience, many a “man on the street” will react to a claim of constitutional protection against campaign finance regulations by saying, “money is not speech.” But few who have really thought about it—including that same “man on the street” after one or two questions and a few moments thinking—will deny that campaign finance regulations deeply embroil the First Amendment. That campaign finance regulation cuts at core First Amendment liberties is not terribly controversial amongst scholars, and certainly not amongst judges.[4] 

Despite this recognition, at least the late 1960s, the political left—once the side of the political spectrum most protective of speech rights—has vigorously sought to regulate political speech through restrictions on the financing of political campaigns and public discourse about politics. And in that time, the vast majority of legal scholarship pertaining to campaign finance reform has been devoted to explaining why this particular form of protected, “core” activity is either so dangerous, or so important, that it must be regulated. 

Since the early 1970s, both the federal government and the vast majority of states have implemented a variety of regimes of heavy campaign finance regulation. Rarely in U.S. history has a policy idea been so widely implemented, and yet so objectively failed to even partially attain its objectives. Campaigns are not less expensive; candidates do not spend less time fundraising; political debate has not been elevated; special interest influence has not abated; political corruption has not been effectively addressed; confidence in government has not risen; government does not seem to be more responsive; polarization appears to have increased, not decreased; and equality of political influence remains the chimera it has always been. I do not suggest that all of these goals are, in my view, inherently desirable. But all are well documented as objectives of “reform.” In sacrifice to these goals, countless Americans have been caught in needless legal snares for what was once routine political activism; campaigns have become more centralized, to the detriment of true grassroots activities; and specialists—accountants, lawyers, consultants, and ultimately appointed enforcement bureaucrats—now play a larger and, for the most part, unhealthy, role in politics. It may not be that campaign finance regulation is responsible for these trends, but it certainly has not prevented any of them. 

But what is most unique about campaign finance regulation is that it is not aimed at “offensive,” “extremist,” or “low-value” speech—it is aimed directly at the mainstream expression of views that happen to be inconvenient for, or disliked by, persons who have the power to suppress that speech. 

Supporters of campaign finance regulation typically react to this critique by asserting higher values—they support the First Amendment, they say, but seek merely to guarantee political equality, prevent the emergence of a ruling oligarchy, fight to assure that legislators are responsive to the people, etc. But these are merely other ways of saying, “yes, this core political speech ought not be protected by the First Amendment.” 

Nor are regulatory proposals saved by their (sometime) facial neutrality. While individual supporters may honestly believe their proposals are neutral, as a political matter campaign finance regulation always and everywhere devolves into a struggle to silence the dissenting or inconvenient voices of the dominant group’s political adversaries.[5] Just as the burdens of a facially neutral law prohibiting all citizens from sleeping under bridges will predictably fall on the poorest elements of society while leaving its wealthier elements unscathed, so it is easy to create “neutral” campaign finance rules that predictably and disproportionately target one’s opponents. Thus, to use one of the broadest and most obvious examples, Democrats have traditionally sought limits on corporations; Republicans on unions. And if one knows how one’s adversaries gain influence, approach voters, and fund their campaigns, one can pass “neutral” legislation that predictably whacks one’s political rivals. To use a baseball analogy, if the other team has long ball hitters, move the fences out; if your team’s ace throws a sinker, let the grass grow long. All perfectly “content neutral” on the face of things, yet designed to alter the outcome of the game in the home team’s favor. Worse, even when legislators don’t intend to “rig” the campaign finance system, the rules they propose will naturally tend, over time, to favor incumbents generally, and the party in power in particular. This is because rules that have this effect will tend to seem “fair” to those people, while rules that do not will be considered a “problem for democracy.” 

Turning specifically to the question posed by this symposium, I do not believe that free speech is in crisis. But I do recognize disturbing trends that, if allowed to continue, could develop into a crisis. 

One is the growing support for limits on “offensive” speech, especially among the nation’s younger cohorts.[6] Even this might not be cause for alarm, were it not accompanied by what seems to be a growing willingness to define “offensive” down—to give just two high-profile examples, a sitting federal judge was deemed too “extreme” or “offensive” to speak at Stanford Law School, and a former Treasury Secretary in the Clinton Administration, Lawrence Summers, met a similar fate (ironically, in a class on “Democracy and Disagreement).”[7] 

Worse still may be the efforts of government officials, and in particular the Biden Administration, to use government pressure to censor speech that is, or at least ought to be, clearly in the mainstream of political discourse, under the guise of “misinformation” and “disinformation.” It is alarming that the Biden Administration established a “Disinformation Governance Board,” (though encouraging that the Board was quickly scotched after public outcry),[8] and that even without such a Board, it blatantly and regularly pressured private media platforms to censor speech ranging from disfavored policy recommendations on the Covid pandemic, to unflattering descriptions of the state of the economy, to concerns about “election integrity,” and even to simple musings about Jill Biden.[9]  It is even more alarming that so many on the left seemed—and still seem--utterly unconcerned by such developments. Now, however, with Trump in charge, the left is panicked about statements and orders from the Trump administration—many of which can reasonably be deemed efforts to intimidate the opposition into silence—while many conservatives seem happy to consider turnabout to be fair play. 

The political left of center, and particularly opinion leaders in academia and press, have yet to come to grips with these and other fundamental, anti-democratic misdeeds by the Democratic Party and the political left. Since January 6, 2021, polls have regularly shown that pluralities of Americans see the Democratic Party as a greater threat to democratic governance than the Republican Party. But the voters have: exit polls from the 2024 election showed that voters who believed democracy was threatened were more likely to vote for Trump than for Kamala Harris.[10] 

Why is the state of things accepted, with apparently large numbers on both sides open to these affronts so long as they are aimed at the opposition? One cannot help but think it is, at least in part, a natural result of 50 years of scholarship explaining why, in the context of campaign finance, mainstream political speech is so important that it should not be protected by the First Amendment, and thus one ought to be able to pass legislation that limits the voices of those one thinks have “too much influence” or “unfair” advantages. Chickens always come home to roost. 

Fortunately, the Roberts Court has been solicitous of free speech in the form of campaign spending and contributions, often to near hysteria from the left.[11] After all, a case such as Citizens United v. Federal Election Commission [12] was ultimately about whether the government could prohibit the distribution of a documentary movie about a major political candidate merely because it was distributed by a corporation—like every other movie you see on cable, streaming, or in the theater. That it was a biased documentary—as was, for example, Michael Moore’s 2004 film Fahrenheit 9/11—is really beside the point. Unless, of course, you think the government should be in the business of deciding when a documentary is too biased and should be censored. 

Stunned by a series of campaign spending and contribution decisions from both the Supreme Court and lower courts, the “reform community” now has turned its glare on another First Amendment right, one that, not that long ago, American liberals won only after hard fought battles. I speak here of the right to privacy in one’s associations. The idea that it is none of the government’s business what charities, advocacy groups, and even partisan political organizations one chooses to associate with, was won only after liberals took the lead against the post-WWII “red scare.” In the era, the government sought, through compulsory disclosure of political connections, support, and activity, to facilitate the creation of “black lists.”[13] That was followed by the legal fight against efforts by state governments to knee-cap civil rights organizations by exposing their members and donors to harassment and pressure;[14] and eventually against efforts to enable retaliatory actions by government officials against citizens with disagreeable opinions,[15] including even members of major political parties in areas where they were in the minority.[16] 

By the early 1970s, these rights to privacy appeared to have sunk roots. But in Buckley v. Valeo[17] and later decisions, the Supreme Court upheld an exception to the rights involved where political campaigns were concerned—again, because this mainstream speech and association was deemed so important that the government had a “compelling” interest in regulating it. Speech, association, and privacy advocates could, however, take some solace in the fact that these decisions were for many years limited to direct gifts to candidates, political parties, and political action committees (PACs), or to donations dedicated to funding “explicit advocacy” of election or defeat of a candidate. 

Today, however, under the populist guise of limiting “dark money,” exposing “original sources,” and blocking “foreign influence,” activists on both the right but, much more so, the left have sought to expand these compulsory disclosure rules to include support for non-profit advocacy groups, trade associations, unions, and even charities. In doing so, they do not target “offensive,” “obscene,” “extreme,” or “low-value” speech. They are quite open that the objective is to burden the expression of mainstream views that they find objectionable and assure that those speakers are “held accountable.” If they succeed—and so far the courts have sent mixed signals, although the Supreme Court’s 2021 decision in Americans for Prosperity Foundation v. Bonta[18] is a positive sign—they will undo the hard fought victories won by American liberals in the post-war decades. 

To summarize, support for limits or even bans on “extremist” or “offensive’’ speech, obscenity, violent speech, and the like is, in my view, misguided, ignoring the dangers of granting government this power, and the ability of those in power to define such speech down to where it does cut into the core. But by itself, it does not suggest an abandonment of public support for free speech. Support for limits on mainstream political discourse that one finds disagreeable, inconvenient, or threatening to one’s hold on power, however, is another story. Unfortunately, under the guise of campaign finance “reform,” that is the dominant view among the legal scholars whom we would, in a better world, expect to be on the barricades defending free speech. 

If we are worried about a long-term decline in support for free speech, I am less concerned about those who would challenge it at the margins—speech that is truly “offensive” or “extreme”—than those who attack it at its core—perfectly mainstream speech about candidates and issues and that happens to be disagreeable to some persons’ notion of equality, or which is simply disagreeable or inconvenient to those in power. 

Bradley A. Smith is Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School.  You can reach him by e-mail at bsmith@law.capital.edu.