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If Jack Davis were Canadian...
Published on January 14, 2008
Category: Contributions & Limits, Faulty Assumptions
Writing about Davis v. FEC over at Concurring Opinions, Frank Pasquale offers an interesting comparison between the ability to regulate political speech in the United States and in Canada.
The important, but unspoken, conclusion that can be drawn from the post is that opinions overruling "egalitarian" campaign finance models are NOT the result of a "misreading" of the First Amendment. As such, supporters of the Millionaire's Amendment will have a difficult road to tread.
Pasquale points out that the U.S. Supreme Court has laid clear that "[t]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
Conversely, Pasquale notes that in Canada the Courts have ruled quite the opposite. "The Court's conception of electoral fairness as reflected in the foregoing principles is consistent with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society...
...The state can equalize participation in the electoral process in two ways... First, the State can provide a voice to those who might otherwise not be heard. The Act does so by reimbursing candidates and political parties and by providing broadcast time to political parties. Second, the State can restrict the voices which dominate the political discourse so that others may be heard as well."
Unfortunately for the "reformers", the Millionaire's Amendment not only depends on an unconstitutional interpretation of the First Amendment, but it undermines the hitherto accepted rationale for campaign finance regulation. As Bob Bauer points out, "The statute sacrifices its anti-corruption rationale to ‘equalize' competition: it sheds the constitutionally approved interest for one that has been disapproved, repeatedly."
It is American culture, and not a misreading of the First Amendment, that has enshrined free speech as an integral part of the Court's campaign finance jurisprudence.
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