John O. McGinnis: Campaign Finance & Free Speech
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John O. McGinnis: Campaign Finance & Free Speech

I think the issue as in most of constitutional
law is who has power? Is it the people acting themselves through
ordering themselves, deciding when and how to speak at election time? Or should the government, uh, substantially
regulate that? Buckley versus Valeo is the
granddaddy of all campaign finance cases. That’s the case in which uh Congress uh tried
to regulate both expenditures, in other words, people who were independent of the candidates
spending money and also contributions, contributions to candidates. What the Supreme Court held was that you
could not limit expenditures, on the sen-, on the theory that that was simply limiting
uh speech. There was really no justification for that. But they did say you could limit contributions. And there are really two reasons for that. They said that actually contributing to a,
to a candidate was less of a First Amendment interest. And moreover, there was a real reason you
might want to limit that uh because there was a concern when you were giving money to
uh, uh, a candidate it might look like or might actually be bribery, at least if it
was substantial amount of sums. So they said you could have these at least
prophylactic rules against uh, uh contributing too much money to a candidate. So that’s the regime under which we have proceeded
essentially for the last uh four decades. Citizens United was uh, is the most famous,
uh, recent case. It said that uh corporations could uh speak
during election time. And those who opposed it suggested that created
great fear of corporate power taking over our democracy, of the sea that money is the
root of all disparate power in politics. Of course, freedom creates unequal power in
society. The fact some people are articulate. Other people have uh access to the media. That’s not a problem. The First Amendment permits them nevertheless
to act uh, uh as they would to try to persuade other people of their views. What it does prevent is the government from
making decisions about who should be able to exercise that freedom. And all too often campaign finance laws by
saying who can speak before an election, who can uh, uh have advertisements before an election,
really does try to make those kinds of discriminations. And that’s just wrong uh, under the core principles
of the First Amendment.

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