ELB Book Corner: Ann Southworth: “Some Implications”

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 final of three posts:

Here I briefly describe one theme explored in the second half of Big Money Unleashed.

As noted in my first post, opponents of campaign finance regulation borrowed and improved upon a model of constitutional change forged by civil rights and civil liberties activists in an earlier era. That model of law reform attracted substantial criticism in the Warren and Burger Court years, mostly but not exclusively from the political right. Critics argued that unelected judges and activist lawyers were exercising powers that properly belonged to the elected branches and that they were proclaiming rights not found in the Constitution, using illegitimate methods of interpretation and reasoning. As the composition of the federal judiciary changed to include more judges drawn from and vetted by Federalist Society and Heritage Foundation networks, and as conservatives created a field of legal-advocacy organizations to pursue constitutional rights claims through the courts, liberals and conservatives swapped roles in these debates. Liberals and progressives are now more often the ones crying foul and raising concerns about the legitimacy of the process, as conservatives pursue and win major rulings, some of which are antithetical to the goals of the movements that pioneered the strategies.

The story told in Big Money Unleashed demonstrates—if any such evidence were necessary—that the development of constitutional law in the U.S. does not stand apart from politics. Lawyers, advocacy groups, and political and financial patrons worked through the courts to alter what falls into the category of constitutionally protected free speech and association. As they sought to expand constitutional protection for campaign spending, they made common cause with advocates and financial backers who saw how free speech claims could be similarly useful in other policy battles—e.g., over economic regulations, union activities, consumer protection, abortion, and LGBTQ rights. An emerging conservative media ecosystem helped to disseminate these ideas about the meaning of the First Amendment. Many of the same players were also active in federal judicial nomination and confirmation battles.

Critics of the Supreme Court’s First Amendment jurisprudence, such as Jeremy Kessler and David Pozen, identify a deeply inegalitarian tendency that has become more pronounced during the Roberts Court era. They say that free-speech doctrine now operates much like the Lochner era’s Fourteenth Amendment jurisprudence, enabling powerful actors to thwart economic and social welfare regulation. Speech law has veered quite far from its origins in claims on behalf of political dissenters in the early twentieth century.

Those who hope to loosen constitutional law’s constraints on regulating money in American politics have extraordinarily difficult work ahead. The process that generated current campaign finance law involved battles over judicial appointments, but it also entailed substantial investments in legal theories, institutions, networks, coalitions, and messaging. If the doctrine now tilts too far toward a libertarian conception of the First Amendment, and if it rests on a flawed conception of responsive democracy that prioritizes responsiveness to major donors over accountability to the people, achieving a better balance will require major long-term investments like the ones that got us here.

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