Professor Erwin Chemerinsky, Dean of the UC Irvine School of Law,  has maintained a lively defense of Justice Ginsburg's comments critical of Donald Trump, writing first in the New York Times and then elaborating on his position in a Los Angeles Times op-ed and a podcast discussion with one of his faculty members, Rick Hasen. It's an interesting and instructive case about how the intensity of feelings about particular issues and candidates tends to drive views of the First Amendment and in particular of the wisdom of campaign finance restrictions. For Chemerinsky, in defending Justice Ginsburg, insists that more political speech is better than less, and he is clearly moved in saying so by what he views as the exceptional importance of the question – – the potential election of Donald Trump – – that Justice Ginsburg was addressing.

This is another application of the test of conviction on political spending issues. To what extent, when the stakes are high, will citizens and activists tolerate being told that they can’t spend however much they want, or operate as freely as they choose, in advancing public policy positions or promoting candidates?

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.

The 10th Circuit decided another disclosure case, Coalition for Secular Government v. Williams, on the mandatory reporting of “issue speech”.  It held that an individual collecting small sums to wage a campaign on ballot questions did not have to comply with registration and disclosure requirements applicable under state law to “issue committees.”  The "committee" that was really just a one-person enterprise was too "small scale,” the government's interests too limited: the cost in the particular case exceeded the benefits.

Did this result turn in any way on the nature of the advocacy – – that it was on issues, not for or against candidates?  The courts have long distinguished electoral from issue speech in determining the scope of constitutional protections.  Buckley v. Valeo, 424 U.S. 1(1976); Citizens against Rent Control v. Berkeley, 454 U.S. 290 (1981); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).  The government's interests in the case of campaign speech are more varied and include both the prevention of corruption and its appearance, and the assistance that disclosure provides to enforcement of contribution and other regulatory limits.  The 10th Circuit found those rationales “irrelevant or inapplicable to issue committees,” and while it has upheld Colorado's issue committee disclosure in principle on the strength of another interest, the voters’ informational interest, it concluded that this interest was insufficient to sustain the law as applied to the Coalition for Secular Government.

In campaign finance law, this distinction between issues and campaign speech has led reform advocates and their allies in legislatures to insist that while the difference may matter to constitutional analysis some of the time, this cannot be not the case all of the time.  They maintain that some issue speech is often campaign speech in disguise, and the Supreme Court in McConnell upheld "electioneering communication" disclosure on the basis of its finding that some issue speech was a “sham.”  Now the courts must entertain claims in as applied to cases that the plaintiffs’ issue speech is not a sham, that it is the real thing, and that it cannot be regulated as campaign finance spending.

How did Justice Scalia come to write a dissent as he did in McIntrye, insisting on the role of disclosure and relying for the power of his point on the need to follow the judgment of legislators in protecting or enhancing the electoral process?  The question this raises is not whether Scalia was or was not a conservative on this issue, but what kind of conservative he was. As it happens, the explanation also sheds light on the recent history of campaign finance reform and the Court’s response.  The emphasis here is on “response”, for the Court—and Justice Scalia—responded to developments in the law, and in political practice, from Buckley onward, and his position may be fully understandable only within this context.

One day there may be personal papers and other accounts not available today that will fill out our understanding of Justice’s Scalia’s thinking, but in the meantime, the best sources are what he wrote and said, and most of all, what he chose to write, as Justice, in opinions, concurrences and dissents.  It has to be granted at the outset that he addressed the issue outside these opinions, and perhaps inevitably on these occasions, in interview or casual comment, he himself oversimplified.  He would say “the more speech, the better,” provided that the audience could know who was paying for it.  This would give observers reason to imagine that he was a “free speech” absolutist.

As Robert Mutch reminds us in his comprehensive history of campaign finance reform, there were such absolutists on the attack against the Watergate reforms from the very beginning. Buying the Vote: A History of Campaign Finance Reform 140-143 (2014). They gave disclosure some room, but they were otherwise firmly against the other elements of the law in place today, which means contribution as well as expenditure limits.  Mutch argues that they needed a fresh hand to play in this game, and it was constructed out of what he takes to be novel claims of “free speech”—to restrict the use of money in politics was tantamount to restricting speech.  They disdained any rationale for these restrictions, the corruption rationale as well as (and perhaps especially) another grounded in considerations of “equality.” They brought the case known as Buckley on this ground, and, the Court having split the difference—money was speech in some but not in all ways-- they were not happy with the outcome.

Early in his tenure on the Court, however, Justice Scalia declared that “Buckley should not be overruled, because it was entirely correct.” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 683 (1990) (Scalia, J., dissenting).  He was primarily concerned to defend the “express advocacy” line that Buckley had drawn around independent expenditures, but he was satisfied that the Court had properly upheld contribution limits as measures targeted at the “plain” risk of corruption:

Certain uses of "massive wealth" in the electoral process – – whether or not the wealth is the result of "special advantages" conferred by the State – – pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control.

Id. at 682.  The Justice also did not then question, nor at any time later, the value of disclosure, which the Buckley also sustained on the strength of the anti-corruption interest.  So overall, Scalia thought Buckley had gotten it right, establishing the express advocacy line which it had “set in concrete on a calm day”, Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449, 499 (2007)(Scalia, J., concurring), while allowing for limits-- but only to address the risks of corruption, not on the basis of an “equality” rationale.

This is the main point urged on the reader in this paper on Super PACs: they're unlikely to disappear, because they are product of the logic of Buckley rather than a distortion of it.  Without a major change in the constitutional law, it is difficult to see how significant limits on Super PACs can be legislated or brought about by regulatory fiat.  Moreover, the “anti-coordination” rules that many are calling for would entangle and damage political organizations other than super PACs and raise legitimate, serious free speech and association issues.

At the same time, there is room for reform--some adjustment to the regulatory process--that would account for the Super PACs’ emergence and widening impact.  Transparency measures can clearly identify for the public those single-candidate Super PACs operating with the candidate’s active support and involvement.  Additional resources could be made available to other actors--parties and others--that are now more regulated than Super PACs and, and in part for that reason, steadily losing ground to them. The goal would not be a deregulated campaign finance system but one that is more rationally structured and coherent.

Rick Hasen worries that the “cure may be worse than the disease.”  He is suspicious or concerned that this is a move to restore the soft-money days that McCain-Feingold was supposed to close out.  But the proposal is not inspired by special solicitude for parties.  Parties are one of a number of electorally active organizations that would benefit from an infusion of resources but there is no case for making them the only ones.  Targeted regulatory relief should be available for other membership-based organizations, and even to candidates when conducting particular voter mobilization activities.

What Rick and others overlook, minimize, or dispute is the role of reinvigorated associational activity in enhancing political equality--in advancing the goal of "the quality of inputs" that Rick champions.  In his very good book, Plutocrats United, Rick does not grapple with the dependence of political equality on organizing and other means of building political strength on numbers, particularly among the very population of citizens he is most concerned with: those with modest resources.  As Guy-Uriel Charles has summed up the significance of association, its “main principle…is that of effective aggregation: an individual must have a reasonable opportunity to join with like-minded others for the purpose of acquiring political power.”  Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Cal. L. Rev. 1209, 1248-1249 (2003).