[EL] new article on the market metaphor in campaign finance cases

[Timothy Kirpal Kuhner]

My latest article, has been made available online in advance of hard copy publication in the Election Law Journal -- http://online.liebertpub.com/doi/pdfplus/10.1089/elj.2016.0402

The Market Metaphor, Radicalized: How a Capitalist Theology Trumped Democracy

Abstract:

An entanglement between economic and political thought stands as a causal factor behind Trump's 2016 victory. Enshrined as constitutional law, this way of thinking allows wealth, whether a candidate's personal wealth or the wealth of her supporters, to serve as a requirement for mounting a viable campaign (and for maintaining one beyond its natural life cycle). It also allows vulgar, misleading, and hateful speech to play as large a role as a campaign or its supporters desire. Plutocracy and illiberal populism are among the reasons to revisit the Supreme Court's longstanding use of a market metaphor to ascertain the First Amendment's demands. Now an unstable and politicized facet of constitutional interpretation, the “marketplace of ideas” demands attention. In the space of forty years (Buckley v. Valeo to McCutcheon v. FEC), the Court moved from (a) an open marketplace as a metaphor for a robust speech environment that would lead to democratic responsiveness and public welfare, to (b) an unregulated marketplace as a system justified in its own right, not as means to a democratic end, much less as a mere metaphor. This doctrinal transformation from the Burger and Rehnquist Courts to the Roberts Court explains the roots of the deregulatory turn in campaign finance, justifies government accountability to large donors and spenders, and casts light on the potential for an illiberal, kleptocratic presidency today. In the end, however, it is not the market metaphor itself that has made democracy so vulnerable. The metaphor could be repurposed or simply reclothed in its original civic garb. What must be exposed and countered, rather, is the Roberts Court's radicalization of the metaphor, which springs from a theological, even theocratic, devotion to laissez-faire ideals.


Timothy K. Kuhner, J.D., LL.M.
Associate Professor Law
Georgia State University College of Law
Profile: <http://law.gsu.edu/directory/kuhner> http://law.gsu.edu/profile/timothy-k-kuhner/
Articles: http://ssrn.com/author=478699
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