ELB Book Corner: Ann Southworth: “$peech”

I am pleased to welcome Ann Southworth to the ELB Book Corner, author of the new book,  Big Money Unleashed: The Campaign to Deregulate Election Spending (Chicago). The discount code for ELB readers is BIGMONEY2023.  This is the first of three posts:


            I am grateful to Rick Hasen for the opportunity to post about my new book, Big Money Unleashed: The Campaign to Deregulate Election Spending. My posts today, Thursday, and Friday sketch the book’s argument and some implications, using edited excerpts from the book.

Americans across party lines believe that reducing the influence of money in politics should be a top policy priority. But legislators are constrained in responding to these concerns by Supreme Court decisions finding that most campaign finance regulations violate the First Amendment. The text of the First Amendment does not mention campaign finance, of course. How then did we arrive at a constitutional understanding that impedes legislative action in this area? 

 Most ELB readers are familiar with the broad history of the doctrine. In Buckley v. Valeo (1976), the Court issued a compromise ruling on the constitutionality of election reform legislation adopted in the wake of the Watergate scandal. Buckley upheld the statute’s contribution limits but found that the law’s limits on independent expenditures violated the First Amendment’s guarantee of free speech and association. The Court ruled that the only constitutionally permissible reason to regulate campaign finance was to prevent corruption and the appearance of corruption; government could not limit money in politics to promote political equality. The justices’ votes cut across ideological and partisan lines.

For years after Buckley, the Court upheld campaign finance laws that could be construed as fighting corruption, but it has invalidated or severely limited nearly every campaign finance regulation it has considered since 2006. (Federal Election Commission v. Wisconsin Right to Life (2007), Davis v. Federal Election Commission (2008), Citizens United v. Federal Election Commission (2010), Arizona Free Enterprise Club’s Freedom PAC v. Bennett (2011), American Tradition Partnership Inc. Bullock (2012), and McCutcheon v. Federal Election Commission (2014).) The majority opinions in these sharply divided rulings treat campaign finance regulation as a dangerous form of government censorship.

What explains the sharp deregulatory turn? The most important and obvious part of the answer is about judicial appointments. The Supreme Court assumed a more hostile stance toward campaign finance laws as Republican-appointed justices vetted through the conservative legal movement gained control. Justice Samuel Alito’s arrival on the Court to replace Justice Sandra Day O’Connor gave opponents of campaign finance regulation the majority they needed to strike down these laws.

But that is not the whole story. The central claim of Big Money Unleashed is that this change in constitutional law is the result of a long-term project in which lawyers, advocacy organizations, and their political and financial patrons also played key roles. Drawing from anonymous interviews with fifty-two lawyers who participated in major cases, as well as public records and archival materials, the book explores how these actors constructed an understanding of the First Amendment that makes most campaign finance regulation vulnerable to constitutional challenge. They pursued a litigation campaign modeled on the NAACP’s strategy for attacking racial segregation. The justices participated in developing the law, of course, but so did the attorneys who devised the theories necessary to support the doctrine, the legal advocacy groups that advanced those theories, the patrons who promoted and financed these efforts, and the networks through which these actors coordinated strategy and held the Court accountable. There was nothing inevitable about how those theories, actors, and resources came together to create new law, and there was nothing inevitable about the doctrine that resulted from this effort.

As a result of this litigation campaign, claims about the meaning of the First Amendment that were novel when introduced decades ago are now firmly embedded in constitutional law. That law is a source of power for those with big money to wield in elections and for the politicians who attract support from big money players.

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