Paths of Resistance to Our Imperial First Amendment

In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way.

Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. FEC, the Court held that the state could regulate only the most obvious forms of express advocacy for a candidate, thus expanding the space in which First Amendment rights categorically trump other state interests. In Citizens United v. FEC, the Court held that corporations have the same First Amendment rights as individuals and limited dramatically the state’s capacity to protect the integrity of the democratic process. Only the narrow interest in preventing quid pro quo corruption or the appearance of such corruption could justify independent corporate expenditure regulations.

When the state of Montana in American Tradition Partnership v. Bullock offered evidence of such corruption to support its regulation of independent corporate expenditures, the Court simply presumed that the regulation did not in fact protect against this type of corruption. This decision raised the possibility that no state actor would be able to support a campaign finance restriction with evidence of a compelling purpose. Finally, in McCutcheon v. FEC, the Court expanded this First Amendment regime from campaign expenditures to campaign contributions, holding that only quid pro quo corruption and the appearance of such corruption could justify contribution limits. The Court then simply concluded as a matter of logic that the regulation did not protect against such corruption in the face of legislative evidence to the contrary.