In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that the state once had the authority to regulate. As the First Amendment Empire expands, other values give way.
In his new book, Citizens Divided: Campaign Finance Reform and the Constitution, Yale Law School Dean Robert Post proposes a path for resisting the imperial First Amendment. In many respects, Post’s theory and framework are quite persuasive. But it is unlikely to convince the Court’s current conservative majority. Insofar as Post’s theory of the First Amendment is grounded in history, his stylized and synthetic account is unlikely to persuade those who demand greater rigor. But perhaps more importantly, Post’s constitutional framework will fail to persuade because it does not account for a linchpin in the Court’s recent campaign finance jurisprudence: the concern about chilling constitutional speech. A path of resistance to the imperial First Amendment will need to account for this concern.
In this book review, I offer an alternative path forward that builds from Post’s theory and constitutional framework but addresses concerns about chilling constitutional speech. This proposal shifts the responsibility for complex fact-based judgments from courts conducting case-by-case adjudication to agencies issuing advisory determinations.