Any constitutional doctrine regarding campaign financing that distinguishes contribution limits that are legal from that are "too low" necessarily rests on judicial protection of "the integrity of democratic elections," a structural value, not on judicial protection of individual rights. On the comments so far:
1. The Citizens Against Rent Control case deals with contribution limits in the ballot initiative context, not the context of candidate elections. The law is fundamentally different in the two areas. Just as government cannot limit even corporate expenditures -- at all -- in the initiative context, it cannot limit personal contributions -- at all -- in the initiative context. Because only candidate corruption can justify imposing either contribution or expenditure limits, and there are no candidates to corrupt in the initiative context, there is no basis for state limits on contributions to initiative campaigns. The Court did not strike down the limit in Rent Control because it was too low; it struck it down because no contribution limit is justifiable. Remember, the Court viewed this as an easy case: the decision was 8-1, a rarity in this area of law. That's because the law is clear about the fundamental difference between initiatives and elections. In the former!
, the Court DOES recognize a conventional, individual First Amendment right to unlimited speech or spending or contributing. But that's completely different from a doctrine, relevant only in the election context, that permits some contribution limits but strikes down others when the SYSTEM of meaningful elections will otherwise be threatened.
2. Brad Smith makes a novel, interesting criticism of the overall system of election regulation that might be emerging. He argues that, if regulation shuts off more and more routes of contributing, then the Court should revisit its doctrine and recognize, perhaps, an individual First Amendment right to make direct and unlimited contributions directly to candidates. If the Court did so down the road, that would indeed change the principles underlying this area of law that currently govern it. Doing so would recognize a new, individual First Amendment right that does not now currently exist -- a pragmatic updating, as Brad sees it, of First Amendment rights to take account of the changing nature of regulation.
3. I see Dan's comment as essentially a semantic quibble, not one that goes to a real substantive disagreement. But perhaps I'm wrong. Sure, we can always verbally reframe most structural or systemic concerns about the nature of democratic elections as involving the "right" of the candidates to participate in fair elections. Dan disagrees with my view, for example, that courts should constrain the intentional elimination of competitive elections by self-interested redistricters. In my view, courts have a role to play in protecting the groundrules of democracy from self-interested manipulation, which is a structural or systemic concern properly enforced by courts. But I could easily reframe that as the "right" of a candidate to participate in a fair election, or a meaningful election, or the right of a candidate not to be "discriminated" against. If a candidate has some kind of individual "right to receive money," to be able to run a meaningful campaign, it's not clear!
why he/she can't have a similar "right to receive a fair districting system," or similar "rights" to a meaningful election process. A second, more doctrinal problem with Dan simply putting the functional pea under a different verbal shell is that the law actually recognizes very few individual "rights" of candidates in elections. That's because elections are not like a speaker standing on the proverbial soap box in the park. Elections are so highly structured and regulated by law that candidates have few rights formally recognized by constitutional law.
4. More broadly, Dan's point confirms my view, at least as I see it. Judges and scholars almost inevitably recognize at some level that constitutional law must protect certain structural or systemic values that go to the integrity of democratic elections. But there's a great inability or reluctance to acknowledge this directly. Perhaps the reason is that judges come to this domain with legal frameworks in mind taken from conventional areas of individual rights or equality, and they simply transport those frameworks to the area of democratic elections without fully reflecting on what's unique about constitutional oversight of elections. Or perhaps they feel uncomfortable with the thought that judges are enforcing such structural concerns. So they smuggle those concerns into rubrics like "the right" of candidates to a "meaningfully competitive election system." That's what Dan has done in his comment, in my view. But we should not let that rhetoric distract us from the!
fact that it is, under one label or another, these structural concerns about the integrity and meaningfulness of democratic elections that constitutional law enforces when it does things like draw lines between contribution limits that are valid and those that are "too low."
Richard Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377