The University of Pennsylvania Law Review Online has released a Special Issue on Campaign Finance exploring alternatives to the Supreme Court’s analysis in Buckley vs. Valeo, the foundational money in politics case decided 40 years ago this year. Buckley held that spending money on elections is constitutionally protected “free speech,” and that the only legitimate reason for regulating money in politics is to prevent corruption or the appearance of corruption. This analysis took many other reasons for limiting big money in politics off the table—like promoting political equality among citizens, or keeping the economic and political spheres separate. The Court’s analysis has severely limited what lawmakers in the United States are able to do to solve the problems caused by big money in politics. Under the Buckley framework, many policy solutions are constitutionally “off limits” – including “limiting how much individuals and candidates can spend on elections, banning corporate or lobbyist contributions, limiting the total amount a single individual can contribute in any given election cycle (‘aggregate contribution limits’), or granting extra public financing to candidates who face big spending.”
Despite its unpopularity on both sides of the liberal/conservative split, Buckley has reigned as the law of the land for the past 40 years. But the potential for a significant shift on the Supreme Court over the next five-plus years gives scholars contributing to the University of Pennsylvania Law Review Online series a reason to revisit the Buckley framework and envision a different constitutional analysis. As Johanna Kalb of the Brennan Center details, some of the pieces in the series explore resurrecting a political equality rationale, which the Buckley Court explicitly rejected in holding that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. . . .”
Other pieces in the series explore a distinct alternative that the Buckley Court did not explicitly consider— or reject: the positive liberty of self-government. A self-government framework might acknowledge the liberty of democratic branches to set boundaries between the economic and political spheres. Under the current jurisprudence, it is the judicial branch that has determined these boundaries—or more accurately the lack of boundaries.
The Court’s opinions constitutionalize a certain vision of democracy, in which there are no limits to what people and companies can spend to attempt to influence potential voters. This vision of democracy largely embodies a free market perspective, even as it ignores the many ways in which economic markets are structured by public rules. As David Schultz remarks in his piece for the series, The Case for a Democratic Theory of American Election Law, the Court’s money in politics analysis:
[R]educes democracy to First Amendment to free speech, free speech to economics, and then to money and its expenditure as the only way to ensure individual freedom….[and] ignores that democracy is different from capitalism, that democracies value more than just freedom, and that to permit the use of money for political purposes overlooks the social context of politics-- raising and spending unlimited sums of money for political purposes is not a democratic practice available to all.
The Court’s decisions reflect assumptions about both a) the superiority of a free market; and b) the applicability of free market economic theory in the realm of democracy. While free market theory is pervasive and accepted as reasonable, it is not innately superior to other economic orderings. Theorists have long had reasonable disagreements about when the free market should be reined in, and why. Nor is free market theory constitutionally superior; Adam Smith’s ideas are not embodied in our Constitution.
In the absence of some constitutionally-mandated or objectively superior economic ordering, shouldn’t it be left to the People—and not the judiciary— to decide what our economic ordering looks like, and how it interacts with the political sphere?
In Resurrecting the Neglected Liberty of Self-Government, Deborah Hellman articulates a similar idea. She explains that the “liberty of citizens in a democracy has two forms – the negative liberty to be let alone and the positive liberty of self-government.” A key aspect of the liberty of self-government is regulation of our economy; democratic branches must be able to make decisions about how to structure the economy, and how to define the boundaries of the economic sphere. According to Hellman, the existing Buckley framework mistakenly recognizes only the negative liberty of spending without limit on elections, and neglects the positive liberty of limiting the reach of money into politics. She argues the democratic decisions that most directly implicate the positive liberty of self-government should be afforded extra deference. Campaign finance laws implicate the self-government interest, because “in essence what they do is draw a boundary around the economic market and restrict its influence.”
The self-government framework raises a variety of questions. For instance, how might the positive liberty of self-government fit into existing First Amendment jurisprudence? And what is the constitutional source for the positive liberty? In Wholly Native to the First Amendment: The Positive Liberty of Self-Government, Tabatha Abu El-Haj posits that the liberty of self-government is “quintessentially a First Amendment interest,” as “protecting the functioning of representative government was, and remains, a core function of the First Amendment.” She elaborates:
[The First Amendment] guarantees rights in the service of preserving the very conditions necessary to vindicate the positive liberty of self-government that Professor Hellman elaborates. Those conditions go beyond free expression, which does not capture the entirety of what is required for representative government to function. Freedom of speech and expression is certainly an important precursor to self-governance, but it must be paired, at the very least, with protections for political participation if democratic majorities are to determine legislative outcomes.
Another question is how a self-government analysis relates to other alternative constitutional frameworks. Is self-government another frame or strategy to achieve the same goals as a political equality framework, or is an interest in self-government fundamentally different from an interest in political equality? And how does an interest in self-government relate to Robert Post’s idea of “electoral integrity,” cited approvingly by Justice Breyer in his dissent in McCutcheon vs. FEC? Might a self-government framework recognize the liberty of democratic branches to regulate in order to protect the integrity of the electoral sphere, but also to protect a firewall between the economic and the political spheres more broadly?
As Deborah Hellman and David Schultz note in the Foreword, the University of Pennsylvania Law Review Online series is intended to ask more questions than it answers. We look forward to further scholarship grappling with these questions and further exploring the self-government rationale.