“Liberty, Equality, Bribery, and Self-Government: Reframing the Campaign Finance Debate”

Deborah Hellman has posted this draft on SSRN (forthcoming, Democracy by the People: Reforming Campaign Finance in America (Kuhner & Mazo eds., Cambridge UP, 2018). Here is the abstract:

Campaign finance law is often framed as a tension between liberty and equality. On one side is the freedom of speech, which the Supreme Court has interpreted to include the freedom to give and spend money in connection with elections. On the other is democratic equality and the idea that we are each entitled to an equal vote in choosing our representatives. If this is the tension that underlies the current jurisprudence, it would appear that liberty has won out and equality has been vanquished.

But appearances can be deceiving. This facile contrast between liberty and equality overstates both what the relevant cases have held, and it ignores the ways in which different understandings of these values are present in other aspects of our constitutional jurisprudence. A recognition of these other ways of understanding both equality and liberty allows us to see that the existing jurisprudence is both more complex and less definitive than it might, at first, appear.

This chapter argues that the constitutional doctrine relevant to campaign finance reform includes the equality-based doctrines governing political participation and the liberty-based commitment to self-government. When courts consider whether campaign finance laws are constitutional, they should remember that the equality of political participation and the liberty of self-government are also important constitutional values that can be brought to bear, along with the liberty of free speech, when deciding whether campaign finance restrictions can be upheld under current law.

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