PUBLIUS WAS NOT A PAC

III. A Primer on Political Speech

Within the context of the First Amendment, many Supreme Court Justices regularly acknowledge the special protection afforded political speech and association. The Court recognizes that the concept of American self-governance is itself dependent on this freedom, for it “fosters the public exchange of ideas that is integral to deliberative democracy.”79 This free trade of ideas allows the citizenry to best govern themselves by seeking out information, contributing to debates, and keeping government accountable. Thus, the right of the citizenry to discourse in a free market of ideas is a “precondition to enlightened self-government and a necessary means to protect it . . . .”80

Actions destroying political privacy destroy free society. Alexis de Tocqueville understood as much when he explained:

If men living in democratic countries had no right and no inclination to associate for political purposes, their independence would be in great jeopardy, but they might long preserve their wealth and their cultivation: whereas if they never acquired the habit of forming associations in ordinary life, civilization itself would be endangered.81

The First Amendment vigorously protects both free speech and association because both are the underpinnings of our democratic republic. This freedom stems from the fundamental principle that people are capable of self-governance. Self-governance includes an individual’s ability to receive information, process it, and make subsequent decisions based on their own individual ability and interest.82

Although many members of the Supreme Court recognize the value of political speech and association, others place greater concern on risks associated with exercising those liberties; specifically, the potential for corruption stemming from acts of political speech and association. Perhaps best stated by Justice Brandeis, “[p]ublicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”83 This schism—valuing the exercise of unabridged First Amendment freedoms or valuing concerns about corruption in the public sphere—is an important factor in understanding how individual justices approach and interpret issues involving political speech and association.

Due to this pronounced schism, the Supreme Court divides political speech and associational rights into four primary categories, each with differing constitutional concerns: (1) money contributions to candidates, (2) express advocacy speech, (3) electioneering communications, and (4) issue advocacy speech.84 In creating these distinctions, the Supreme Court made two important distinctions in Buckley v. Valeo. First, the newly enacted Federal Election Campaign Act involved complicated provisions, but was limited by the Court in its reach so the average individual could comply with it.85 Congress can concoct amazingly detailed and lengthy speech regulations where only electoral experts may ensure protection from penalties under the law. However, this is unconstitutional because average speakers cannot comply with such a system.86 Second, although laws may be enacted to stem governmental corruption, these statutes must err in favor of permitting speech, rather than restricting it, due to concerns about overbroad and inappropriate application of statutes.87 Far-reaching, near-utopian visions of preventing corruption or its appearance are constitutionally unworkable due to their tendency to err on the side of suppressing—rather than valuing—speech.88 These two foremost considerations lead the Buckley Court to distinguish between the legal terms “express advocacy” (subject to limited regulation) and “issue advocacy” (subject to little or no regulation).89

The guiding wisdom of the Buckley Court, later reinforced by Citizens United, instills binding considerations for any system of campaign finance disclosure. Like other areas of protected First Amendment expression, clarity and precision must be the touchstones of regulation.90 Although disclosure may be appropriate in limited instances,91 all-encompassing or blurry disclosure schemes suffer from the same constitutional maladies as described in Buckley and this wisdom must be incorporated in today’s programs. These distinctions are, after all, the primary moving purpose behind Buckley’s formulation of the express advocacy test and the Supreme Court’s continued insistence on objective speech guidelines. This approach includes a baseline respect for meaningful boundaries between regulated and non-regulated speech as well as agreed limits to the reach of any such program.92