American Constitutionalism in Historical Perspective (packet)

Protecting defendants’ due process rts p. 1370: rt of free speech vs. rt of fair trial balancing act. Nebraska Press Ass’n v. Stuart, 1976: court struck down gag order prohibiting publication of D’s confessions or admissions pretrial. Must find a less restrictive way to protect these rights. Balancing approach favoring free speech over due process rights of individual.



I. Money and Political Campaigns

1. 
   What should be relationship in const democracy b/w politics and economics? 2 views
   
   1. 
      Social Democrat view-
      
      1. 
         Rawls/Linden: impt to sep question of political equality from question of eco inequality b/c fund diff b/w them. If really democracy need equality in political domain (equal power to all citizens). Legit reasons to allow economic inequality (for incentive purposes of mkt economy).
         
      2. 
         Need robust campaign financing to avoid eco inequality from undermining political equality. D/n deserve more political wt b/c you are wealthier (this is when eco inequality distorts political equality)
         
   2. 
      Libertarian view: c/n distinguish b/w or separate eco & pol inequality so campaign financing is unjust.
      
   3. 
      Most other democracies regulate campaigns more.
      
2. 
   Buckley v. Valeo
   
   1. 
      Wake of Watergate so Americans revolted at the way economics distorted political power. Federal campaign act of 1971:
      
      1. 
         $1000 individual contribution limit (const),
         
      2. 
         $1000 independent expenditures (unconst),
         
      3. 
         Limit on candidate’s personal expenditures (unconst),
         
      4. 
         Limit aggregate campaign expenditures (unconst),
         
      5. 
         Compulsory disclosure req keyed to contribution to either party (const), and
         
      6. 
         Limit on public financing of campaigns (const)
         
   2. 
      Purposes of Act/ State interest: Political equality (Rawls/Linden) and to control corruption (aftermath of Watergate) vs. Speech interest:
      
   3. 
      Is money conduct or is it speech? If just conduct, then under O’Brien test w/n raise free speech problem. Also argued that act is just a time, place and manner regulation (not limiting what candidates are saying but is limiting degree to which one person is buying political power so another can be heard). These arguments would have led to upholding everything. Ct d/n buy these arguments although other countries would (England).
      
   4. 
      Ct avoids obvious way around this (see above) and finds expenditure limits more problematic than contribution limits.
      
      1. 
         Contributions
         
         1. 
            Contributions have prob of quid pro quo (corruption purpose).
            
         2. 
            Limited compromise of free speech b/c if aggregate contributions can still be heard. Encourages you to go to more ppl and encourage broader giving (more middle class contributions)
            
      2. 
         Expenditures:
         
         1. 
            Are an expressive interest-buying ads, etc. really limits degree to which candidate can be heard which is commensurate to his expenditures.
            
         2. 
            Limits free speech
            
         3. 
            c/n have undue influence on yourself w/ limits on candidate’s personal expenditures
            
   5. 
      Effect of decision is to prefer very wealthy ppl, which is censoring the poor and support the rise of PACs.
      
   6. 
      Compelling state purpose: anti-corruption (pp.1426-27) is accepted. p. 1428 political equality is unconstitutional state purpose—not valid.
      
      1. 
         Lowering one person (limiting his expressive ability) to the advantage of another. This deviates from autonomy—libertarian view.
         
      2. 
         But this is overstated: Free speech and human rts have equality center (one person-one vote, fairness doctrine, no property qualifications for voting, anti-censorship which forbids selection among speaker, are all equality principles).
         
3. 
   Nixon v. Shrink Missouri Govt: P.1433 contribution campaign limits for state office are constitutional.
   
4. 
   California Medical Assn v. FEC: p.1436: contribution limits allowed for individuals and unincorporated associations to any multi-candidate political committee but not expenditure limits
   
5. 
   Exceptions to Buckley rationale:
   
   1. 
      FEC v. Colorado Republican Federal Campaign Committee: (2001) P.1439: Party’s coordinated expenditure limits okay b/c were used as disguised contributions. W/n allow form to limit content.
      
   2. 
      First National Bank of Boston v. Belllotti: (1978) p. 1440: Overturned law that prohibited any corp from making contributions or expenditures to influence the vote.
      
   3. 
      FEC v. National Rt to Work Committee (1982): p.1443: upheld restriction on NP’s ability to raise funds for contributions to candidate elections. Can only solicit from members of the corp.
      
   4. 
      FEC v. Massachusetts Citizen for Life (1986) p. 1443: Ads were about initiatives so stronger interest in protecting them. Org was deemed a voluntary political association so d/n need to make independent campaign expenditures out of segregated funds.
      
6. 
   Result: P. 1448 no limits if gave to parties and not candidates. Response is McConnell v. Federal Election Commission : Congress passes FECA which Bush d/n veto b/c favors incumbents.
   
   1. 
      Extends Buckley to allow limits on soft money b/c it is an evasive act of avoiding contribution limits. Prohibit state and local committees from using $ for activities that affect federal elections, etc. p. 1448
      
   2. 
      But new loophole, tax exempt orgs are exempt from expenditure limits and state and local politicians d/n have incentives to regulate themselves b/c this bill only affects presidential campaigns.