Is there an exception to free speech if its purpose is to exclude from the conversation certain views or groups? Ulrich Baer and Ted Gup have written dueling commentaries on this question. Baer argues that campuses are right to deny a forum to speakers whose racist or misogynist message defines other voices as unworthy of participation in the debate. Gup answers that once the principle of free speech is abridged for any reason, the inevitable result is more power for those who have already have it, more danger for those who do not. The protection Baer believes he is extending to the marginalized and underprivileged will turn out to be the road to their further victimization. Gupta sees Baer as mistaken that an exception carved out for the most just or compassionate of reasons can be kept under control and not abused for baser purposes.

There is a strong echo of this argument in the conflicts over campaign finance regulation. Those who would like to see the imposition of tighter limits on campaign spending are often making a Baer-like argument, with a twist. They do not peg their point to the content of the paid message: It could be on any subject. But they believe that the capacity to spend heavily to promote one’s views is an act of domination over those who don’t have the resources to answer. The wealthy are establishing an exclusive forum for speech funded at that level: Only a few can participate. This is an affront to democratic self-governance. It is, to borrow Baer’s words, threatening to “equal access to pubic speech,” and limits serve to “ensure the conditions” of such speech.

So, seen through this perspective much like Baer’s, limits are justified. And, just as Baer argues, staunch campaign finance advocates have long maintained that speakers restricted in the use of one outlet for their views can always can turn to others. Those whose speech confronts limits are still free to hold their beliefs and express them, just not at liberty to spread them on whatever terms and in whatever ways they choose.

The Supreme Court in Buckley v. Valeo famously rejected the notion that the speech of some may be limited in order to lift up the speech of others. Gup goes farther, insisting that, even if speech limits are intended to have this leveling effect, they usually don’t. The historical record to which Gup appeals tends to show that well-intended speech restrictions end up working against the interests of the marginalized and underprivileged. Once limits on access to a forum may be set, choices of who may spend, and how much, must be made. Gup writes that“ the advocacy of a dynamic line between protected and unprotected speech grants a license to those in power to smother dissent of all sorts….”

Supreme Court nominee Neil Gorsuch has scattered few clues about his campaign finance jurisprudence. Commentators have had to make do with his concurrence in Riddle v. Hickenlooper, 742 F. 3d 922 (2014), a case involving a concededly defective Colorado law that discriminated against minor or independent candidates in the structure of contribution limits. Gorsuch’s concurrence could be read to question the more permissive standard of review that the Supreme Court in Buckley established for the defense of contribution limits. The Court allowed for scrutiny of contribution restrictions a step or more down from the strictest review: not attention to whether the government had a “compelling” interest and had “narrowly tailored” the means to achieve it, but a question of the state’s “sufficiently important interest” and the use of means that are “closely drawn.”

Gorsuch wrote in Hickenlooper that the two standards were “pretty close but not quite the same thing.” Id. at 931. To some observers, they seem not that close at all. They fear that any shift to a more rigorous standard would be the next and perhaps decisive blow to meaningful campaign finance regulation. The stakes, they believe, are high. But how high? And are there other questions to be raised about the political assumptions, perhaps also effects, of the leeway provided for the imposition of tight limits on contributions?

In this pre-Labor Day period when blogging will be light, here are a few notes:

1. Robert Mutch, who has written extensively about the history of campaign finance, has now published a guide to law and rules, Campaign Finance: What Everyone Needs to Know, just published by Oxford University Press. He means “everyone.” It is a citizen’s manual, with accessible explanations of abstruse statutory regulatory, and case law material, a chronology of major developments, and a glossary of key terms. He also provides throughout comments on the campaign finance reform debate. Mutch has a point of view on reform issues--who doesn’t?--but it is not harmful to his project. It adds a little zest to the discussion and more interest, therefore, for the general reader.  That reader has long deserved a resource like this, and here it is, courtesy of Robert Mutch.

2. That same general reader might want to puzzle over some of features of the well-worn law that is Mutch’s subject. An interesting case now on appeal to the Supreme Court, which goes by the name of a plaintiff with an unambiguous politics--Stop Reckless Economic Instability Caused by Democrats--questions why it is that political committees in existence for at least six months, so-called “multicandidate” committees, may give upon passing out of their infancy more to candidates but less to political parties (provided they also meet other minimal conditions on the level of support received and given).  The multi-candidate committee satisfying this 6-month waiting period can give a candidate another $2300 per election, for a total per election limit of $5,000. But its contributions to national and state parties are substantially cut from $32,400 to $5,000 and from $10,000 to $5,000, respectively.

The voting rights and campaign finance wars have been fought on terrain largely shaped by two major and controversial decisions: the Crawford case on voter ID requirements, and Citizens United on independent spending. Critics have lamented Crawford’s naiveté about the stated value and inevitable partisan misuses of ID requirements, but it seemed that supporters had going for them the “common sense” judgment that voters required to have an ID to board a plane can be reasonably asked to produce one to vote. So one might have thought that Crawford was here to stay, even as the Justice who wrote for the Court, John Paul Stevens, has expressed regret.

Citizens United got more bad press in many quarters for opening up direct corporate political spending and for giving a boost to Super PACs. Its author, Anthony Kennedy, continues to defend it. He points to the silver lining: the court’s brief, arguably cursory, salute to disclosure, even as Kennedy concedes it is not yet working in practice as he had hoped it would. The critics who think the court flipped open the Pandora’s Box of campaign finance have put whatever hopes on the antidote of disclosure, and more speculatively on a constitutional amendment to overturn the case’s core permissiveness.

In light of developments of recent weeks, it is interesting to consider where the law set in motion by these cases is heading.

The FEC tries to make up its mind, case by case, whether an organization distributing political material is a “press entity” engaged in a “legitimate” press function.  It concluded some time ago that Citizens United was a press organization when producing and distributing documentaries.  Advisory Opinion 2010-08 (June 11, 2010). This year it could not decide whether to bestow similar grace on another documentary producer, one who evidently does not care for President Obama.

Commissioner Weintraub tersely noted that the producer sent free samples of his product to millions of households in 2012 “swing states.”  This was enough for her to conclude that the producer may have been a "press entity" but it was not acting like one: it was not engaged in a “legitimate” press function.

The General Counsel reached a different conclusion and recommended that the FEC let things go—that it exercise its broad discretion in the producer’s favor.  It seemed to agency counsel that this particular press entity was acting legitimately enough. The General Counsel credited the claim that the free distribution was a commercial promotion and not only, if predominantly, in “swing states.”  The producer appeared to have demonstrated sufficient commercial or business purpose by arranging for sales through websites and via Amazon, and by contracting for streaming services through both Amazon and Netflix.

Commissioner Goodman, joining his Republicans in voting with the General Counsel, added a charge that the Democratic objections were a threat to press freedom.