What makes hard cases hard

1
What makes hard cases hard?

• Beginning from social facts not abstract
  principles
• Arguments in favor of government intervention
• To preserve a certain form of public life not to
  protect individuals

2
Campaign Speech

• Is free speech for sale?
• If so, can we do something about it?

3
History of Campaign Speech

• Early National Period (1780s-1820s)
• Gentlemen financed their own campaigns
• Party Period (1830s-1890s)
• Placed a tax on govt jobs to finance campaigns

4
History (contd)

• Corporate Period (1890s-1971)
• Does corporate money corrupt politics?
• Disclosure Clauses
• Expenditure Limits
• Contribution Limits
• U.S. v. Newberry (1921)

5
History contd

• Federal Election Campaign Act FECA (1971 1974)
• Limit contributions to 1,000 per individual
  group
• Limit individual group expenditures
• Public financing of elections
• FEC to enforce rules

6
Buckley v. Valeo (1976)

• Money is speech
• Strict Scrutiny
• What is the govts interest?

7
Buckley Contd

• Distinction between contribution expenditure
• Contributions may be regulated. Why?
• The act does not regulate contributions to
  non-candidate political organizations (soft
  money)
• Like Political Parties Political Action
  Committees

8
Buckley contd

• But expenditures may not
• Expenditures are expressions of belief
• If directed at independent expression, corruption
  is not an issue
• Equalizing opportunities is a violation of
  individual rights
• FEC is constitutional

9
First Bank of Boston v. Bellotti (1978)

• Does a corporation have the same right of
  expression?

10
First Bank of Boston contd

• The Ruling
• This case concerns issues not candidates
• Free marketplace of ideas
• Individuals should not be patronized by govt
• And states allow other forms of corporate
  lobbying
• And individual shareholders may withdraw support

11
Dissent

• Corporations are not like individuals
• They live in perpetuity
• They amass great wealth
• They have no interest in self-development
• Individual corporate executives may express
  themselves
• Statute intends to protect public sphere, not
  limit it

12
Political Life after Buckley

• Corporate issue campaigns
• Gazillionaires running for office
• Public trust in govt at an all-time low

• Rise of Political Action Committees (PACs)
• Political parties as fund-raising banks