Buying Time: Protecting Free Speech and Functional Democracy by Distinguishing Between Expenditures

Abstract

Many in campaign finance community suggest there is no room for further debate over constitutionality of statutory limits upon independent and contributions. Pro-reform groups perceive democracy as vulnerable to systemic from plutocratic influences and thus endorse regulatory oversight of campaign spending. Pro-speech groups assert pillar of democracy is participation in of information, and subsequently reject restriction of campaign financing even when advanced in name of anti-corruption. Since Citizens United, latter view has largely carried day in court.But what if pro-reform and pro-speech views are not at odds after all? Since Buckley v. Valeo, reformers have sought to limit contributions or expenditures in name of preventing corruption or political equality. These blunt paradigms have failed. But there is another way forward. For forty years, Congress and Court have unnecessarily examined all of money as an undifferentiated class subject to same restrictions. It is time to abandon this framework and pursue a new approach tailored to a new interest.The Court has long viewed First Amendment as protecting a for clash of different views and conflicting This of (or, marketplace) rests upon two principles: and free trade. The principle recognizes speech, not less, is governing rule of First Amendment. This protects entry into market and ensures a diversity and multiplicity of ideas. The free principle recognizes the ultimate good desired is better reached by trade in ideas and that best test of truth is power of thought to get itself accepted in competition of market. This protects competition within market and ensures best win through competition on merits. But if marketplace of ideas is more than just a catchy slogan, then what does winning provide? What limited resource does market allocate based on this free trade in ideas? The answer is time. a fleeting existence we have but little time to find truth through discourse. When content freely competes in of and wins on its merits, best rise to top, gain greater acceptance, and earn a larger market share of audience time and attention. And just as some contracts in economic enhance competition while others restrain competition, so too do some in ideational enhance competition while others do not. By distinguishing between these expenditures, we can raise unexplored questions and craft a campaign finance system aligns with First Amendment.Part I briefly surveys history of campaign finance debate. After examining problems posed by existing approaches and weaknesses of anticorruption and political equality interests, theory abandons faulty premises underlying those paradigms. Rather than assuming government's interest must cut against speech, theory proposes aligning government's interest with speech. And, rather than assuming all serve First Amendment purposes and asking how much protection should be afforded to these expenditures, theory asks which advance purposes of First Amendment and which undermine purposes of First Amendment.Part II proposes a new approach to reform based on differences between competitive and anticompetitive in ideational marketplace. By revealing Buckley and its progeny to be an inevitable judicial response to a clumsy legislative framework, theory makes room for a more tailored statute rooted in constitutional principles. Here, theory distinguishes between for creation of content (all of which help content enter market and are protected by principle) and for dissemination of content (some of which allow content to compete for market share on merits — and thus are protected by free principle — and some of which bypass competitive process for earning market share — and thus violate free principle).Part III proposes a new government interest: preserving competition in of ideas. By passing legislation curbs anticompetitive restraints upon trade, Congress could protect ideational market's natural role in safeguarding speech and self-rule. And, just as our antitrust laws curb restraints to protect economic competition (without regard to particular or products), so too would a antitrust law curb restraints to protect ideational competition (without regard to particular or ideas). Such a law would not favor particular speakers or equalize any more than antitrust laws favor particular businesses or equalize market share.Part IV discusses elements and application of a legislative proposal, forecasts standard of review to be applied, addresses likely objections to such a scheme, and evaluates various advantages of employing such an approach. In short, this Article sets out a constitutional theory and legal framework for understanding what so many Americans already know: they are not heard in halls of Congress, process has shut them out, and their compelling concerns cannot compete in a system where money matters more than merits.