How Did We Get $peech?

Guest Blogger

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

Ann Southworth

The organizers of our conference panel on “Freedom of Speech and the Crisis of the Political Marketplace” posed a difficult question: “How should courts and others conceptualize the relationship between speech and money?” Since I am neither a First Amendment scholar nor an election law expert, I will sidestep that challenging question to address a related one—that is, how lawyers and other actors shaped the treatment of the relationship between speech and money in First Amendment doctrine.

This column briefly sketches the story-line of my recent book on this topic, Big Money Unleashed, about a campaign over decades to deregulate election spending. It draws from interviews with fifty-two lawyers who participated in the major cases, as well as public records and archival materials, to explore the process by which money became speech and most regulation of campaign finance became censorship in First Amendment law.

Supreme Court justices obviously were central players in that process. But so were the attorneys who devised the theories, the legal advocacy groups that advanced those theories and brought cases, the patrons who promoted and financed these efforts, and the networks through which these actors coordinated strategy.

The story begins in the early 1970s, when a few entrepreneurial lawyers demonstrated how a policy dispute that was then playing out in Congress could be transformed into a constitutional battle waged through the courts. Ralph Winter, then a Yale Law School professor, and John Bolton, one of Winter’s students, wrote influential pamphlets published by the American Enterprise Institute showing how First Amendment arguments that had been developed to protect political dissenters could be refashioned to give wealthy individuals and corporations constitutional rights to use their money in elections. A law review article by Martin Redish around the same time championed an understanding of the First Amendment according to which “the ideological marketplace of the political campaign must remain uninhibited.”[1] The arguments advanced in these publications laid the foundation for the litigation campaign, and they have served ever since as key points stressed by opponents of campaign finance regulation.

The effort gathered momentum in the 1990s and early 2000s, as opponents of regulation invested in expertise, strategic case selection, and evocative rhetoric. They pursued an incremental litigation strategy modeled on the NAACP’s effort to dismantle racial segregation. Specialized advocacy organizations led the way in advancing the themes of the campaign and chipping away at restrictions on money in politics. Lawyers developed legal theories, found sympathetic plaintiffs, brought test cases, and organized amicus participation and media strategies, framing the effort as a fight for the little guy’s right to engage in free speech. They deployed potent rhetoric about the need to prevent government from “banning, chilling, suppressing, silencing, and censoring” political expression. They made common cause with advocates for interest groups that saw how free speech claims could be useful in other policy battles—e.g., over economic regulation, union activities, consumer protection, abortion, and the reach of antidiscrimination laws. An emerging conservative media ecosystem helped to disseminate these themes. The ACLU and some labor groups offered partial support. The Federalist Society’s Free Speech and Election Law Practice Group served as a site for cultivating arguments and coordinating strategy. Kentucky Senator Mitch McConnell also played a central role—leading Republican opposition to campaign finance legislation, assembling teams of lawyers to challenge laws, recruiting FEC commissioners who shared his perspective, and overseeing the appointment of federal judges who would be receptive to this deregulatory agenda.

The Supreme Court’s first major ruling on the constitutionality of campaign finance regulation, Buckley v. Valeo, gave opponents of regulation some of what they wanted. It upheld contribution limits and disclosure requirements, but it struck down caps on independent expenditures and limitations on candidates’ use of their own money in their campaigns. It found that the only permissible justification for campaign finance restrictions was to prevent corruption and the appearance of corruption, and it flatly rejected the notion that government could limit money in politics to promote political equality.

For years after Buckley, the Court upheld some laws that could be construed as deterring corruption. But since 2006, when justices appointed by Republican presidents and vetted through the conservative legal movement’s network gained a majority, the Court has invalidated or severely limited nearly every campaign finance regulation it has considered.[2] Citizens United’s  broad holding—that independent expenditures by corporations and unions cannot be limited—led almost immediately to the D.C. Circuit’s ruling in SpeechNow.org v. FEC that contributions to super PACs cannot be limited. What little remains of federal campaign finance law appears vulnerable to attack under the logic of the current doctrine, which imagines freedom of speech as a restraint on almost any government action that restricts the ability of individuals and institutions to use money to influence elections so long as it does not constitute quid pro quo corruption.

The campaign that advanced these claims about the relationship between speech and money—a constitutional construction now firmly embedded in First Amendment law—has unleashed big money in American elections. In the years since Citizens United and SpeechNow, expenditures by super PACs and other outside groups have exploded, often exceeding the amounts spent by the candidates’ own campaigns. The rulings have emboldened megadonors to put enormous amounts behind candidates through outside groups while easily hiding their identities from the public if they care to do so. Super PACs sometimes operate as shadow campaigns, thanks, in part, to FEC disfunction and advisory opinions that weakened rules against coordination between candidates and nominally independent outside groups. Meanwhile, states that want to implement voluntary public finance systems must work around one of the Robert Court’s less noticed campaign finance rulings—a 2011 decision striking down Arizona’s “matching funds” system on the ground that it violated the First Amendment rights of privately-financed candidates and independent expenditure groups.

The First Amendment law that treats most campaign finance regulation as impermissible censorship is the product of investments made over many decades. Networks of powerful actors used the courts—and deployed a resonant speech frame—to accomplish this task. The constitutional law generated through this campaign has given the wealthy freer rein to use their economic power to influence elections and elected officials, and it has left ordinary people, the purported beneficiaries of the campaign, with less of a voice in our political process. Most Americans, across party lines, believe that reducing the influence of money in politics should be a top policy priority. They may not know how courts and others should conceptualize the relationship between money and speech, but they understand that there is something wrong with a campaign finance system that gives private money such a dominant role American politics.

Ann Southworth is Professor of Law & Founding Faculty Member, University of California, Irvine. You can reach her by email at asouthworth@law.uci.edu.