Julian Sanchez header image 2

photos by Lara Shipley

A Modest Proposal

December 11th, 2003 · No Comments

I’ve got a new piece on the campaign finance decision up at Reason: “Undue Influence.”

And just for fun, here’s a nice excerpt from Buckley v. Valeo, which the court claimed to be following in their ruling. You tell me if you can square this with the decision in McConnell v. FEC:

While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming [424 U.S. 1, 48]   the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First Amendment right to “`speak one’s mind . . . on all public institutions’” includes the right to engage in “`vigorous advocacy’ no less than `abstract discussion.’” New York Times Co. v. Sullivan, 376 U.S., at 269, quoting Bridges v. California, 314 U.S. 252, 270 (1941), and NAACP v. Button, 371 U.S., at 429. Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.54 

It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by 608 (e) (1)’s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in [424 U.S. 1, 49]  order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure `the widest possible dissemination of information from diverse and antagonistic sources,’” and “`to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” New York Times Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S., at 484. The First Amendment’s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 139
(1961). 55   [424 U.S. 1, 50]  

The Court’s decisions in Mills v. Alabama, 384 U.S. 214 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court addressed the question whether “a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them.”
384 U.S., at 215 (emphasis in original). We held that “no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment.” Id., at 220. Yet the prohibition of election-day editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom than a $1,000 imitation on the amount of money any person or association can spend during an entire election year in advocating the election or defeat of a candidate for public office. More recently in Tornillo, the Court held that Florida could not constitutionally require a newspaper [424 U.S. 1, 51]  to make space available for a political candidate to reply to its criticism. Yet under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so long as it undertook the modest burden of printing his reply. See 418 U.S., at 256-257. The legislative restraint involved in Tornillo thus also pales in comparison to the limitations imposed by 608 (e) (1). 56 

For the reasons stated, we conclude that 608 (e) (1)’s independent expenditure limitation is unconstitutional under the First Amendment.

Tags: Uncategorized