|
|
The Regulation of Electoral Financing(6) |
|
(4) Express Advocacy vs Issues-Based Discussion
As discussed above, some of the American cases have drawn a distinction between these two kinds of speech, finding restrictions on the former more likely to be compatible with First Amendment rights than restrictions on the latter. The Green Paper does not expressly refer to this distinction.110
I am not convinced that such a sharp distinction can or should be made between the two types of speech. As some of the American cases have shown on their facts, it can be a very difficult line to draw. Is an ad that advocates a particular view on a contentious topic, and then tells viewers to 'contact candidates' about it, or tells viewers what particular candidates think about the issue, in effect advocacy in favour of a particular candidate? Or is it merely issue-based discussion? What is the difference, in terms of freedoms, between expressly advocating for a candidate whose views one supports, and taking out an ad taking a position about an issue, and telling viewers or readers that a particular candidate also takes that position? I would argue that the effect is virtually the same, and that we are resorting to unjustified distinctions to argue otherwise.
If the distinction served some other purpose which was compatible with freedom of speech (or freedom of political communication), the fact it sometimes required fine lines to be drawn might not be fatal. But I am not convinced that express advocacy of a candidate is any less necessary to the kind of representative democracy we have, and wish to maintain, than issue-based advocacy.
Conclusion
I conclude that the introduction of electoral funding legislation would be a challenge for the Australian Government given the constitutional freedom of political communication that has been recognised by the High Court of Australia. Although I cannot of course comment on any specific proposal as no bill has yet been drafted, the Court should start, when considering such a law, and the draftsperson should start, when drafting such a law, with the general principle that it is fundamental in a democracy that people must have a right to debate issues, and that includes speech as well as hearing messages from others. Of course, there must be a very strong and clear case for an interference with such a right. It cannot be supported based on mere assertion or platitudes. Some of the arguments given to support such regulation must be tested in terms of specific evidence. There is evidence that the introduction of campaign finance regimes, such as in the United Kingdom, have not in fact achieved the purposes for which they were introduced. Courts must be mindful of the fact that political parties may seek to change the funding rules to secure what they consider to be an electoral advantage to them. A strong independent umpire must consider any such changes very carefully.
The bill would need to explain cogently how the regulations it introduced represented the least drastic means to achieve a legitimate objective. I have concluded that there is no justification for differential treatment of political donations on the one hand, and spending on the other. Nor is the distinction between individual donors on the one hand and group donors on the other justified. Nor is the distinction sometimes made between express advocacy and issues-based advocacy one that the bill should embrace. The Australian Government must tread very carefully if it wishes to proceed on this path.
Endnotes
* PhD UNSW; Associate Professor of Law, University of Southern Queensland.
1 Australian Government Electoral Reform Green Paper: Donations, Funding and Expenditure December 2008 (Green Paper).
2 Further discussion of disclosure rules appears in K D Ewing 'The Legal Regulation of Electoral Campaign Funding in Australia: A Preliminary Study' (1992) 22 University of Western Australia Law Review 239.
3 The system works by reimbursing parties a certain sum for each first preference vote cast in their favour, provided they gain at least 4% of those votes: Commonwealth Electoral Act 1918 s294, 297. This regime is discussed in more detail in Joo-Cheong Tham and David Grove 'Public Funding and Expenditure Regulation of Australian Political Parties: Some Reflections' (2004) 32 Federal Law Review 397, 405-415 and Graeme Orr 'The Currency of Democracy: Campaign Finance Law in Australia' (2003) 26 University of New South Wales Law Journal 1; Owen Fiss 'Money and Politics' (1997) 97 Columbia Law Review 2470.
4 Until 1980, limits were imposed in Australia on the amount of campaign expenditure - a good history of electoral funding regulation in Australia appears in: Deborah Cass and Sonia Burrows 'Commonwealth Regulation of Campaign Finance - Public Funding, Disclosure and Expenditure Limits' (2000) 22 Sydney Law Review 477, 491.
5 The Australian Government estimates that approximately 20% of the funding of the Labor Party and the Liberal Party is derived from the scheme by which the public funds parties based on their results at the last election: Green Paper p12.
6 7.7 -7.8.
7 7.10.
8 7.37.
9 7.12.
10 7.13.
11 7.15-7.22.
12 7.11. The experience in other jurisdictions will be noted later in the paper.
13 8.28.
14 Commentary on these cases appears in several articles, for example Adrienne Stone 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication Under the Australian Constitution' (2001) 25 Melbourne University Law Review 374; 'Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219; James Stellios 'Using Federalism to Protect Political Communication: Implications from Federal Representative Government' (2007) 31 Melbourne University Law Review 239; Michael Coper 'The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur? (1994) 16 Sydney Law Review 185; Nicholas Aroney 'A Seductive Plausibility: Freedom of Speech in the Constitution' (1995) 18(2) University of Queensland Law Journal 249; Jeffrey Goldsworthy 'Constitutional Implications and Freedom of Political Speech' (1997) 23 Monash University Law Review 362; H P Lee 'The Australian High Court and Implied Fundamental Guarantees' (1993) Public Law 606.
15 (1992) 177 CLR 106.
16 Mason CJ Deane Toohey Gaudron McHugh JJ, Brennan and Dawson JJ dissenting).
17 Mason CJ p137-138.
18 144-145.
19 145; Deane and Toohey JJ were similarly unconvinced that the desire to eliminate corruption justified the legislation's impact on political communication during an election period (175)
20 231; to like effect Gaudron J 211-212.
21 Eg Theophanous v Herald and Weekly Times Limited (1994) 182 CLR 104; Levy v Victoria (1997) 189 CLR 579; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Coleman v Power (2004).
22 (1997) 189 CLR 520, 567.
23 (1997) 189 CLR 579, 594; to like effect McHugh J (622) and Kirby J (638) (both also citing American cases).
24 American cases have found the following to be 'speech' within the First Amendment: refusing to salute the American flag (West Virginia State Board of Education v Barnette (1943) 319 US 624, 642; displaying a flag (Stromberg v California (1931) 283 US 359, 369; burning a flag (Texas v Johnson (1989) 491 US 397, 405; wearing an armband to protest war (Tinker v Des Moines Independent Community School District (1969) 393 US 503, 505-506; displaying a swastika (National Socialist Party of America v Village of Skokie (1977) 432 US 43, 44; holding a parade although it had no particular theme (Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) 515 US 557, 570.
25 Bradley Smith 'Money Talks: Speech, Corruption, Equality and Campaign Finance' (1997) 86 Georgetown Law Journal 45, 50.
26 Deborah Cass and Sonia Burrows 'Commonwealth Regulation of Campaign Finance: Public Funding, Disclosure and Expenditure Limits' (2000) 22 Sydney Law Review 447, 456-460; Joo-Cheung Tham and David Grove 'Public Funding and Expenditure Regulation of Australian Political Parties: Some Reflections' (2004) 32 Federal Law Review 397, 420-421.
27 Eg Central Hudson Gas and Electric Corp v Public Service Commission of New York (1980) 447 US 557, the court finding that a corporation's advertising amounted to speech.
28 We must exercise the usual caution here with international comparisons - the provisions are not identical. For example, the United States provision is applied to speech, while the Australian version relates to communication; in the United States the provision is a source of positive rights, while in Australia the right is a negative one, in that it is a freedom from laws that (unreasonably) interfere; the American right is express, while the Australian freedom is implicitly derived from the text and structure of the Constitution. Another view regarding the use of United States materials in interpreting the freedom of political communication appears in Dan Meagher 'The Fighting Words Doctrine: Off the First Amendment Canvas and Into the Implied Freedom Ring?' (2005) 28 University of New South Wales Law Journal 852.
29 (1976) 424 US 1; see for detailed discussion Frank Sorauf 'Politics, Experience and the First Amendment: The Case of American Campaign Finance' (1994) 94 Columbia Law Review 1348; J Skelly Wright 'Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?' (1982) 82 Columbia Law Review 609; and Kenneth Levit 'Campaign Finance Reform and the Return of Buckley v Valeo' (1993) 103 Yale Law Journal 469.
30 19 (Burger CJ, Brennan Stewart Powell Blackmun Rehnquist JJ) (Marshall J agreed the provisions limiting independent political expenditures by individual groups and fixing overall ceilings on expenditure by candidates was unconstitutional, but would have upheld limits on the amount of personal expenditure by a candidate); White J dissenting and Stevens J not participating.
31 'The plain effect of the (section) is to prohibit all individuals � from voicing their views relative to a clearly identified candidate through means that entail expenditures of more than $1000 during a calendar year' (39).
32 45; for further discussion of the case see Deborah Goldberg and Brenda Wright 'Defending Campaign Contribution Limits After Randall v Sorrell (2008) 63 New York University Annual Survey of American Law 661.and Richard Briffault 'The Return of Spending Limits: Campaign Finance After Landell v Sorrell (2005) 32 Fordham Urban Law Journal 399.
33 54; the Supreme Court was similarly unimpressed with such arguments in the recent decision of Davis v Federal Election Commission (2008) 128 S Ct 2759, 2772.
34 21-22.
35 The Supreme Court had a similar view of limits on campaign contributions by an individual in Nixon v Shrink Missouri Government Pac et al (2000) 528 US 377.
36 The Supreme Court recently clarified in Davis that disclosure requirements impact privacy of donors so a clear justification is required: Davis v Federal Electoral Commission (2008) 128 S Ct 2759, 2774.
37 'We do little but engage in word games unless we recognise that people - candidates and contributors - spend money on political activity because they wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether they or someone else utters the words' (244).
38 Davis v Federal Election Commission (2008) 128 S Ct 2759 (per Roberts CJ Scalia Kennedy Thomas and Alito JJ, Stevens, Souter, Ginsburg and Breyer JJ dissenting in part).
39 Austin v Michigan Chamber of Commerce (1990) 494 US 652.
40 (2006) 126 S Ct 2479.
41 Of the majority, three (Scalia Thomas and Kennedy JJ (more contentiously) indicated their view that the First Amendment forbids any limits on donations or spending), while three others including Roberts CJ, Breyer and Alito JJ apparently endorsed the differential treatment of spending and donations, but found the donation limits here too low). In dissent, Stevens Souter and Ginsburg JJ would have upheld the legislation.
42 The majority proposed a two-step test to determine validity of an electoral finance law: (1) whether there were danger signs that the limits imposed may harm the electoral process by preventing challengers from mounting effective campaigns against incumbents, threatening accountability; and then (2) an assessment of relevant factors including what the limit was, whether the limit on party contributions to candidates was the same as the limit on individual contributions to candidates, whether exceptions existed for volunteer expenses, whether the ceiling was adjusted for inflation, and whether there was any special justification for the donation limits (2495-99).
43 2500.
44 (2007) 127 S Ct 2652.
45 McConnell v FEC (2003) 540 US 93.
46 Roberts CJ, Scalia Thomas Kennedy and Alito JJ, Souter Stevens Ginsburg and Breyer JJ dissenting (2673).
47 The decision has had a generally hostile reception among writers: see for example Richard Briffault 'WRTL and Randall: The Roberts Court and the Unsettling of Campaign Finance Law' (2007) 68 Ohio State Law Journal 807; 'WRTL II: The Sharpest Turn in Campaign Finance's Long and Winding Road' (2008) 1 Albany Governmental Law Review 101; Daniel Ortiz 'The Difference Two Justices Make: FEC v Wisconsin Right to Life Inc II and the Destabilisation of Campaign Finance Regulation' (2008) 1 Albany Governmental Law Review 141; Kurt Hohenstein 'Clio, Meet Buckley - Buckley, Clio: Reintroducing History to Unravel the Tangle of Campaign Finance Reform' (2008) 1 Albany Governmental Law Review 63; and Deborah Goldberg and Brenda Wright 'Defending Campaign Contribution Limits After Randall v Sorrell (2008) 63 New York University Annual Survey of American Law 661.
48 Examples include National Citizens' Coalition AG Canada (1984) 11 D.L.R. (4th) 481 (Alta QB)(amendments prohibiting anyone who was not a candidate for election and who was not acting on behalf of a registered party or candidate for election from incurring election expenses during an election period struck down as an unjustified breach of the guarantee of freedom of expression); and Somerville v Canada (1996) 136 D.L.R. (4th) 205, where a limit on third party expenditure of $1000 was struck down on the same basis. The Supreme Court of Canada validated a ceiling on third party election expenditures of $150,000, and a maximum of $3,000 in each electorate (known as a 'riding' in Canada) as reasonable regulation.
49 Applying this test, the Supreme Court of Canada validated a ceiling on third party election expenditure of $150 000, and a maximum of $3000 in each electorate: Harper v Canada (2004) 1 SCR 827; cf Libman v Quebec (1997) 3 SCR 569.
50 As a partial trade-off, the amount of public funding of Canadian political parties was increased.
51 Colin Feasby 'Constitutional Questions About Canada's New Political Finance Regime' (2007) 45 Osgoode Hall Law Journal 513.
52 Colin Feasby 'Constitutional Questions About Canada's New Political Finance Regime' (2007) 45 Osgoode Hall Law Journal 513, 542-543.
53 Eg John Hart Ely Democracy and Distrust: A Theory of Judicial Review (1980); Samuel Issacharoff and Richard Pildes 'Politics as Markets: Partisan Lockups of the Democratic Process' (1998) 50 Stanford Law Review 643; Richard Pildes 'The Theory of Political Communication' (1999) 85 Virginia Law Review 1605.
54 'The Supreme Court 2003 Term - Foreword: Constitutionalization of Democratic Politics' (2004) 118 Harvard Law Review 29, 154.
55 See for detailed discussion Keith Ewing, The Cost of Democracy: Party Funding in Modern British Politics (2007).
56 Defined to include party political broadcasts, advertising, unsolicited material sent to electors, any document setting out the party's policies, market research conducted on the electorate, press conference or other media expenses, transport of party leaders and officials, and rallies and public meetings.
57 Schedule 9 Part II s3.
58 United Kingdom Ministry of Justice Party Finance and Expenditure in the United Kingdom: The Government's Proposals (2008) p40 ('White Paper').
59 Communication Act 2003 (UK) s321, Chapter 21.
60 See also the Political Parties and Elections Bill 2008 (UK).
61 Schedule 10 Part II s3.
62 Sir Hayden Phillips, The Review of the Funding of Political Parties Strengthening Democracy: Fair and Sustainable Funding of Political Parties (2007) p10. A previous major review in the United Kingdom recommended against a cap on private funding: The Committee on Standards in Public Life: the Funding of Parties in the United Kingdom (1998) (Neill Committee) p80.
63 Ewing cites three loopholes with such limits, as demonstrated by conduct since the introduction of the United Kingdom restrictions - money can be disaggregated so as not to breach limits, money can be spread around and money can be given to unregulated recipients: The Cost of Democracy (2007) p229-230. He concludes of the new regime that 'extensive and detailed controls have been found to be very porous, allowing ample opportunity for financial support for parties to be concealed in various perfectly lawful ways' (87).
64 Human Rights Act 1998 (UK).
65 Article 25 provides for a right of all citizens to take part in the conduct of public affairs on a non-discriminatory basis without unreasonable restrictions.
66 Bowman v United Kingdom [1998] ECHR 4 (24839/94); see also Linens v Austria (8/7/86) Series A No 103, p26 ss41-42 and Mathieu-Mohan and Clerfayt Belgium (2/3/87) Series A No.113, p22 s47.
67 Para 42.
68 Para 47.
69 Randall Holcombe, Public Policy and the Quality of Life (1995) p5-6; Dwight Lee and Richard McKenzie, Regulating Government (1987) p10-13.
70 ACTV v Cth (1992) 177 CLR 106 and Buckley v Valeo (1976) 424 US 1.
71 Para 7.37 'eliminating or reducing private funding with bans or caps would address concerns about undue influence'; para 7.35 'In the Australian federal electoral system, no restrictions on donations currently exist. It has been argued that this could result in a situation where influence and access can be purchased', and para 8.28 'By imposing an upper limit on election spending, the need for and advantages in attracting large donations and other financial support would be removed, and the incentive for any political party to chase dollars and potentially trade benefits or access for funding would be minimised'.
72 Henry Chappell 'Campaign Contributions and Congressional Voting: A Simultaneous Probit-Tobit Model' (1982) 62 Review of Economics and Statistics p77-83; Janet Grenzke 'Shopping in the Congressional Supermarket: The Currency is Complex' (1989) 33 American Journal of Political Science 1; William Welch 'Campaign Contributions and Legislative Voting: Milk Money and Diary Price Supports' (1982) 35 Western Political Quarterly 478; John Wright 'PACs, Contributions and Roll Calls: An Organisational Perspective' 1985) 79 American Political Science Review 400; John Lott 'Empirical Evidence in the Debate on Campaign Finance Reform' (2001) 24 Harvard Journal of Law and Public Policy 9; Sorauf, F, Money in American Elections (1983) p285-290; S Moussalli, Campaign Finance Reform: The Case for Deregulation 4 (1990); Bradley Smith 'Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform' (1996) 105 Yale Law Journal 1049; Bradley Smith 'Money Talks: Speech, Corruption, Equality and Campaign Finance' (1998) 86 Georgetown Law Journal 45; and Frank Souraff 'Politics, Experience and the First Amendment: The Case of American Campaign Finance' (1994) 94 Columbia Law Review 1348.
73 'Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees' (1990) 84(3) American Political Science Review 797, 798, Kathleen Sullivan 'Political Money and Freedom of Speech' (1997) 30 University of California Davis Law Review 663, 679. For a contrary view, see Richard Briffault 'The Political Parties and Campaign Finance Reform' (2000) 100 Columbia Law Review 620, and J Skelly Wright 'Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?' (1982) 82 Columbia Law Review 609.
74 'There is no evidence to suggest that the overwhelming majority of people who give to political parties do so with the intention of securing improper influence' (p53).
75 'It is argued that both bans and caps go towards ensuring that all citizens have equal opportunity to participate in the political process' (p61) Green Paper; J Skelly Wright 'Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?' (1982) 82 Columbia Law Review 609.
76 Ronald Dworkin 'The Curse of American Politics' (1996) New York Review Books p19,23; Kathleen Sullivan 'Political Money and Freedom of Speech' (1997) 30 University of California Davis Law Review 663, 674.
77 Jeffrey Blum neatly summarises this divide: 'The libertarian conception of free speech is best seen as integral to the libertarian strategy of seeking a minimal state in which paternalistic and regulatory functions are severely limited � By promoting speech entitlements that are coextensive with the private ownership of wealth and property, the libertarian approach facilitates an upward redistribution of political power and initiative that tends to strengthen the political base for reducing the regulatory and welfare programs despised by libertarian theorists. By contrast, the equal liberty and collective right conception is integral to a strategy designed to achieve ends that are in many respects the opposite of those that libertarians favor. By using absolutist protection to guarantee sufficient social space for movements to form and enter the established political system, the Supreme Court has enhanced the political initiative, and thus the political power, of groups that lack control over significant wealth and property. This limited redistribution of political power has helped to create a political base for the paternalistic, regulatory welfare state': 'The Divisible First Amendment: A Critical Functionalist Approach to Freedom of Speech and Electoral Campaign Spending' (1983) 58 New York University Law Review 1273, 1349.
78 Ewing dismisses the argument as a 'fiction': '(another) objective of a party funding regime is based on the principle of political equality which lies at the heart of liberal democracy. In practice, this principle is little more than a fiction, undermined by the great disparities of wealth .. that exist between individuals in a liberal version of democracy': The Cost of Democracy (2007) p27.
79 Australian Electoral Commission, figures reproduced in the Green Paper p10.
80 The amount of public funding available to political parties, based as it is on the party's support at the previous federal election, is excluded as irrelevant for the purposes of the present discussion.
81 Green Paper p12, see also Joo-Cheong Tham and David Grove 'Public Funding and Expenditure Regulation of Australian Political Parties: Some Reflections' (2004) 32 Federal Law Review 397, 401-405.
82 Buckley v Valeo (1976) 424 US 1; Stephen Gottleib 'The Dilemma of Electoral Finance Campaign Finance Reform' (1989) 18 Hofstra Law Review 213, 289.
83 Charles Fried 'The New First Amendment Jurisprudence: A Threat to Liberty' in Stone, G et al eds, The Bill of Rights in a Modern State 225, 226-227.
84 Bradley Smith 'Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform' (1995) 105 Yale Law Journal 1049, 1072-1084; ''Money Talks: Speech, Corruption, Equality and Campaign Finance' (1997) 86 Georgetown Law Journal 45, 88; Joel Gora 'Campaign Finance Reform: Still Searching Today for a Better Way' (1998) 6 Journal of Law and Policy 137, 145-146, Clarisa Long 'Shouting Down the Voice of the People: Political Parties, Powerful PACs and Concerns About Corruption' (1993) 46 Stanford Law Review 1161, 1181-1183.
85 Smith, n71, p1065; Late Money in Key House Races (1995) Political Financing and Lobbying Report 3, 5-6 (January 11).
86 Ewing points out many of the loopholes that have been exploited in campaign finance regulation, including making donations over extended periods rather than in lump sums, channelling money to assist candidates indirectly rather than directly, considering the precise timing of a donation carefully to avoid difficulties, providing benefits to candidates and parties through loans rather than donations, providing benefits to candidates and parties through in-kind support rather than a donation, testing the limits of what 'election expenses' are: The Cost of Democracy (2007)
87 See for example Buckley v Valeo (1976) 424 US 1, 55-56; City of Cincinnati v Discovery Network Inc (1993) 113 S Ct 1505.
88 (1997) 189 CLR 520, 568.
89 Levy v Victoria(1997) 189 CLR 579, 598; as did Gleeson CJ in Coleman v Power (2004) 220 CLR 1, 31.
90 McCullough v Maryland (1819) 4 Wheat 316, 421: 'let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, what are not prohibited, but consist with the letter and spirit of the Constitution are constitutional' (Marshall CJ); expressly adopted and applied by the High Court of Australia in Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55, 76; expressly approved of recently by Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33, [102].
91 (1990) 169 CLR 436, 471-472 (Mason CJ Brennan Deane Dawson and Toohey JJ).
92 Davis v Commonwealth (1988) 166 CLR 79.
93 99-100.
94 Eg Austin v Michigan Chamber of Commerce (1990) 494 US 652; see Linda Berger 'Of Metaphor, Metonymy, and Corporate Money: Rhetorical Choices in Supreme Court Decisions on Campaign Finance Regulation' (2007) 58 Mercer Law Review 949; and C Edwin Baker 'Campaign Expenditures and Free Speech' (1998) 33 Harvard Civil Rights-Civil Liberties Law Review 1, 32-33, Adam Winkler 'Beyond Bellotti' (1999) 32 Loyola Los Angeles Law Review 133.
95 P59 Green Paper.
96 This issue did not arise in ACTV v Commonwealth since the Act applied only to governments and persons; it did not refer to non-government organisations.
97 More detailed discussion of this issue from a company perspective appears in Ian Ramsay, Geof Stapledon and Joel Vernon 'Political Donations by Australian Companies' (2001) 29 Federal Law Review 179.
98 If this were the position taken, another relevant issue might be how 'democratic' the organisation was. For example, if its office bearers were voted in by members, the organisation might be argued to be democratic and hence be entitled to freedom of communication, as genuinely representing the views of its members, whereas if the organisation was not perceived to be democratic in nature, its claim to be able to speak out about political matters might on one view be diminished. However, due to the conclusion I reach on the suggested distinction, I need not explore this peripheral issue here.
99 139.
100 232 (emphasis added).
101 (1992) 177 CLR 1, 75.
102 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 571. Subsequent to my development of this argument, I learned that the United States Supreme Court in First National Bank v Bellotti (1978) 435 US 765 dismissed arguments that the worth of speech depended on whether an individual or corporation was doing the talking, on the basis that both could equally inform the public. The McConnell v Federal Election Commission case (2003) 540 US 93 upheld limits on corporate spending, but the continuing acceptance of this decision is a matter of doubt after Sorrell: Richard Briffault 'WRTL II: The Sharpest Turn in Campaign Finance's Long and Winding Road' (2008) 1 Albany Governmental Law Review 101.
103 Buckley v Valeo (1976) 424 US 1.
104 Chapter 7 is about Bans or Caps on Funding, Chapter 8 about Caps on Expenditure.
105 Buckley v Valeo (1976) 424 US 1.
106 Richard Briffault 'WRTL and Randall: The Roberts Court and the Unsettling of Campaign Finance Law' (2007) 68 Ohio State Law Journal 807, 825; 'The Return of Spending Limits: Campaign Finance After Landell v Sorrell' (2005) 32 Fordham Urban Law Journal 399; 'WRTL II: The Sharpest Turn in Campaign Finance's Long and Winding Road' (2008) 1 Albany Government Law Review 101; Daniel Ortiz 'The Difference Two Justices Make: FEC v Wisconsin Right to Life, Inc II and the Destabilisation of Campaign Finance Regulation' (2008) 1 Albany Government Law Review 141; Kurt Hohenstein 'Clio, Meet Buckley - Buckley, Clio: Re-Introducing History to Unravel the Tangle of Campaign Finance Reform' (2008) 1 Albany Government Law Review 63.
107 20-21.
108 As Burger CJ put it, 'we do little but engage in word games unless we recognise that people - candidates and contributors - spend money on political activity because they wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether they or someone else utters the words' (242).
109 If it be thought that relatively low donation limits might make a candidacy more 'democratic', others disagree. Smith, for example, claims many previous presidential elections in the United States have shown that candidates often able to best raise campaign dollars in small contributions often turned out to be disastrous candidates, citing Barry Goldwater and George McGovern as examples: Bradley Smith 'Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform' (1995) 105 Yale Law Journal 1049, 1063.
110 As a result, I explore this argument in less detail than otherwise might be appropriate.
|
|
|
|
|
|
