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Rick Hasen Interviews Floyd Abrams: Selected Excerpts 

UCI Law Professor Rick Hasen has done it again — he has made the Election Law Blog even more appealing. By way of yet more value added, the ELB now has a podcast component. The second podcast consists of an interview withFloyd Abrams.

Abstract: Is more money in elections good or bad for our democracy? Would it be better to lift all limits on money in elections? What is the Supreme Court doing in the area of free speech? What of the new decision in Reed v. Town of Glibert? And what of academics and their views of the First Amendment?

→ Listen to audio feed here (31 minutes)

Here are a few excerpts from that interview:

• Campaign Disclosure Requirements: Abrams: “[Rick,] I think you are right to say that in [Citizens United] Justice Kennedy did not anticipate the way disclosure would play out . . . on the ground. I doubt very much it would change his overview of what the First Amendment protects and doesn’t protect in this area. My own view . . . [is] that disclosure requirements are constitutional, in general, apart from . . . .NAACP–like situations [in which] the mere fact that disclosure is so likely to have a such chilling effect on the ability of citizens to participate in the political process . . I don’t think that has occurred, and as a generality I don’t think [much of it] occurs. And more broadly, when it does occur . . . , I think that’s fine — that’s part of the system, too. The fact that the Federal Election Commission is itself immobilized, for political reasons, is not something that I think the Constitution has to take into account. It would be a good thing, in my view, if there were more disclosure, and Citizens United holds that it would be constitutional if that occurred.”
• Buckley Revisited: Hasen: “Would you like to see the Court go further and strike down contribution limits to candidates and parties as a First Amendment violation? First, would that be constitutionally required? And second, would that be a good state of affairs compared to where we are now? Abrams: “For some time I thought the Buckley v. Valeo creation [of distinguishing contributions from expenditures] .  .  . was sort of [an] acceptable on-the-ground compromise. I must say that it is increasingly difficult . . . from a First Amendment perspective, and probably a more on-the-ground perspective, to defend it. That is to say, it is very hard to come up with the words — maybe I speak now too much as a litigator — . . . to explain why it is that contributions are said to be more inherently corrupting than individual or corporate or union expenditures because, obviously, on the ground level they approach and cross over each other very often. . . . [Thus,] it really does get more difficult to defend . . .  [Buckley’s] half-way system . . . .”
• Reed v. Town of Gilbert: Abrams: “I do think that [Reed] will lead to a major change. . . . I think one of the most important lessons of this case is how close our [First Amendment] law is becoming with respect to commercial speech as it is in political speech. I think we are moving in that direction. I don’t know that I would have moved all the way there, but I think that is where we are going. This case tells us that. We are not only going to have an expanded version of what is content based, with all of the consequences of that, but it is likely to apply as well in a large number of commercial speech contexts, which makes it, if anything, even more of a blockbuster decision. . . . One consequence of that may be that strict scrutiny becomes less strict as we apply it.  .  .  . One of the arguments against it is [just that] . . . . [In that regard,] Justice Breyer warned that strict scrutiny will become less strict than it has been in the past. . . . [The ruling in Williams-Yulee] may be a good example of this. . . . That may be a direction that we go in.  . . . Five years from now people like me . . might be saying, ‘I would rather have the old strict scrutiny if the price of cases like Reed . . . is that strict scrutiny is not at all as strict as it was.’”
• The First Amendment & the Legal Academy: Hasen: When it comes to defending broad readings of the First Amendment, “[d]o you think something has changed in academia, and if so, what do you attribute it to, and do you think the First Amendment runs the danger of becoming another yet issue that divides the country [along] partisan lines? Abrams: “Yes and yes. . . I am sorry to say — but maybe one shouldn’t be naive about this — that an awful lot of [academic] decsisionmaking . . . comes not from [a] judgment about speech [protection], but what the topic happens to be. Protests around abortion clinics are viewed by some on the Left as more easily subject to restriction than would be the case if they were protests around factories by unions. I do think that scholars tend to be more liberal than not, more left-of-center than not. I have to say this has come to affect their judgment about the First Amendment and when it applies and what it means. . .”

There is much more and I urge readers to consult the entirety of this engaging and illuminating interview.

→ See also ELB Podcast Episode 3: “Larry Lessig: Bold Campaign Reformer or Don Quixote?” (go here)