In which I blog about my paper: Part II — First Amendment and campaign finance law in a nutshell

In my paper, I argue that campaign finance regulations are a particularly appropriate way to analyze how Breyer applies his theory to his actual Supreme Court decisions because campaign finance regulations themselves concern elections—the very means by which citizens participate in democracy.  (Again, the primary argument behind Breyer’s theory of active liberty is that by the careful support and preservation democratic processes such as elections, laws ultimately will have the most beneficial affect on society.) 

Campaign finance regulations—which try to limit the amount that individuals can contribute to campaigns but also sometimes try to limit the amount the individual campaigns can themselves spend—are often challenged on First Amendment grounds, the argument being that by limiting the amount one can contribute to a campaign, that individual’s right to free speech is being restricted.  The argument on the other side is that if we don’t limit campaign contribution amounts, we risk creating a democracy that can be influenced by a few wealthy individuals (thus stifling the speech of everyone else). 

Without these laws, guys like him might expect some serious quid-pro-quo.

There is a complex and confusing history of how the Supreme Court decides First Amendment cases, based on the type of speech (for example, whether it is “content-based” political speech; content-neutral speech, such as certain zoning requirements; or commercial speech, such as advertisements). Depending on what type of speech is at issue, the court decides how closely to “scrutinize” that speech—whether there is, in the words of Justice Breyer, a “strict, moderately strict, or totally relaxed [rational] presumption of unconstitutionality.”  In the case of content-based speeh, such as political speech, if someone challenges a law by claiming that his or her constitutional right to free speech is being restricted, the only way a court can not strike down that law is to determine that it is written narrowly enough to serve a compelling governmental purpose. The court is more likely to find that laws restricting obscene speech are in the government’s best interest than laws that prohibit distributing leaflets or placing campaign signs on private lawns.

Breyer argues that “active liberty” helps make appropriate distinctions between categories of speech and the level of scrutiny that should be applied to each. For example, when speech is related to the shaping of public opinion or politics, active liberty is most at risk. In such cases, judges should take a pro-speech presumption and apply “careful review” (i.e., strict scrutiny). When speech concerns ordinary commercial regulation, on the other hand, such risk to the actual processes of democracy is absent. Breyer argues that the historic difficulties of First Amendment jurisprudence, with its categories of speech and confusing levels of scrutiny, can be simplified if judges first refer to active liberty. Instead of being hampered by rigid categories, one should ask: what will best support the political process in shaping “the kind of society in which we live”?

Historically, the constitutional issue in campaign finance regulation is whether campaign finance laws, as examples of political speech, should be looked at with the strictest of scrutiny: are laws prohibiting certain types of contributions or expenditures narrowly tailored enough to meet the government’s objectives? The precedent for campaign finance law is Buckley v. Valeo, decided in 1976, before Breyer was on the court. (Breyer was appointed by President Clinton in 1994.)  (Attention all law students: I have been told that Buckley is always on the bar exam. Consider this your bar review!) In this decision (stemming from a challenge to the Federal Election Campaign Act of 1971—the first real attempt at campaign finance regulation), the court ruled that limitations on contributions and expenditures are like limitations on speech itself, so both must be subject to scrutiny.  However, because contributions were more like “speech by proxy” (you are contributing money to have someone ultimately speak for you), they are subject to less scrutiny.  This means that the court did not need to find that the law was as narrowly written in the case of contribution expenditures—and so it held that limits on individual contributions to campaigns were OK.  It was not OK, however, to limit what a campaign itself could spend.  The only legitimate government interest in regulating campaign finance is prevent corruption or the appearance of corruption—corruption in this case being “large contributions…given to secure political quid pro quo from current and potential office holders.” This interest was met by preserving regulations on individual contribution levels.

Since Buckley, the Supreme Court has decided five campaign finance-related cases: Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996), Nixon v. Shrink Missouri Government PAC (2001); McConnell v. Federal Election Commission (2003), Randall v. Sorrell (2006), and most recently, Federal Election Commission v. Wisconsin Right to Life, Inc. (2007). (Just last week, the Court heard arguments in Davis v. Federal Election Commission, which challenged the “millionaire’s amendment” to the McCain-Feingold Act.)  Breyer wrote the majority opinions for two of the cases, concurred in the majority for two, and joined the dissent in Wisconsin Right to Life (notably, after the shift in the court following the appointment of Roberts and Alito). In these decisions, it becomes evident that he is attempting to shift the Court’s approach from applying a categorical test to one that applies a balancing test that considers factors such as legislative deference, access to democracy, and stare decisis.  These decisions thus reflect his theory that active liberty—and not tests based on levels of scrutiny, such as those applied in Buckley—should be the basis for whether or not laws are Constitutional.  He began to ask not “do these laws meet the government’s needs?” but, “Do the government’s objectives balance an individual’s right to free speech?” Instead of asking, “Is this law constitutional in the sense of the First Amendment?” he asks, “Is this law constitutional in that it reflects the historic, democratic objectives of the Constitution?”  To Breyer, the government’s interests are less tied to a black-and-white preservation of Free Speech as determined by whether or not a law fails a judicial test, and more tied to the purpose of the law and its intended consequences. In other words, what is most important for the people and democracy.

Why do you care? Some scholars have argued that because of Breyer the touchstone of Buckley — again, holding that because contribution limits prevent corruption or the appearance of it, they do not presumptively fail strict scrutiny — is becoming less and less relevant, which leaves uncertainty as to the Court’s future approach to campaign finance. In part, this is because different aspects of the new campaign finance law—provisions such as restrictions on issue ads or soft-money donations—are now being challenged and are problems not addressed by the laws at issue in Buckley.  And, arguably, these are the very implications of a modern, changing society that Breyer’s theories on active liberty should adequately address. However, Breyer’s minority status in Wisconsin Right to Life suggests the court will not wholly embrace them. Until the entire court is on board with the Breyer’s balancing approach and moves away from traditional categories of scrutiny, the law could remain frustratingly unclear and the question still open for discussion:  are restrictions on a person’s right to give money to a candidate limiting his or her constitutional right to speech? Or can we find a balance between this constitutional right and the need to reign in an out-of-control election process where it still seems that money buys access.