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- Title
SAVING CAMPAIGN-FINANCE REFORM WITHOUT AMENDING THE CONSTITUTION: THE PROMISE OF THE FORGOTTEN PETITION CLAUSE OF THE FIRST AMENDMENT.
- Authors
SNYDER, JESSE D. H.
- Abstract
Despite popular consensus that the concentrated influence of money has pernicious effects on the polity, the First Amendment has been a bulwark against efforts to reduce the influence of money in politics. According to the Supreme Court's opinion in Buckley v. Valeo, and more recently in Citizens United v. FEC, the government's interest in curbing actual or apparent corruption does not circumscribe the free-speech right of persons and corporations to make unlimited expenditures to advance political causes, as long as those expenditures are not direct contributions to a candidate. In the forty years since Buckley, the Court has rejected the standalone interest "in equalizing the relative ability of individuals and groups to influence the outcome of elections" in favor of a philosophy that the government can justify abridging political expenditures on anti-corruption grounds only. Buckley v. Valeo, 424 U.S. 1, 48 (1976) (per curiam). After Citizens United, the right of persons and corporations to spend money as a form of speech seems to be inviolable--unless, of course, another constitutional right confronts and undermines those free-flowing speech rights. If the Speech Clause is the foil to limitations on political spending, the Petition Clause housed next door may help disinfect our politics from the thralls of unabated financial influence. Although current Petition Clause doctrine sometimes conflates the right "to petition the Government for a redress of grievances" with free speech, a keener focus on the Petition Clause could precipitate a nuanced understanding of the various clauses within the First Amendment. From these nuances emerges an argument embracing the discrete right of individuals to petition their government representatives without hindrance. When political expenditures drown out that right to petition, the free-speech disapprobation of expenditure limitations must yield. This article argues that proponents of campaign-finance reform should adopt a new tactic and advance a countervailing right under the Petition Clause to supplant prior successful free-speech challenges to reform. If the Constitution bears some majoritarian structure, that structure must include an individual right, capable of aggregation, to petition the government, which cannot be clandestinely stifled by more affluent voices. In two parts, the article discusses how constitutional challenges to campaign-finance reform have fared and outlines how the Petition Clause can support ceilings on political spending.
- Subjects
UNITED States; CAMPAIGN fund laws; FREEDOM of speech; BUCKLEY v. Valeo; CITIZENS United v. Federal Election Commission; UNITED States. Constitution. 1st Amendment; PETITIONS
- Publication
Review of Law & Social Change, 2018, Vol 42, Issue 1, p93
- ISSN
0048-7481
- Publication type
Article