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Gardner on Campaign Finance Regulation, the Freedom of Speech, and Slippery Slopes

By Lawrence Solum

James A. Gardner (University at Buffalo Law School, SUNY) has posted Anti-Regulatory Absolutism in the Campaign Arena: Citizens United and the Implied Slippery Slope (Cornell Journal of Law and Public Policy, Vol. 20, 2010) on SSRN. Here is the abstract:

Perhaps the most striking feature of the Supreme Court?s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court?s behavior in this respect is consistent with ? and, I argue, is best understood as ? the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And how reasonable is the Court?s apparent belief that any movement at all down the slope will result in an irreversible slide into the disfavored outcome?

Although the evidence is scanty, the Court?s behavior appears to be motivated by a deep-seated fear of loss of democratic self-rule, especially a fear that incumbents will use government power to entrench themselves in office, resulting in a catastrophic and possibly irremediable loss of popular sovereignty. This is without question a serious and legitimate fear. Justification of the Court?s rigid response to this fear, however, requires more: it requires the existence of some mechanism by which permitting even a modicum of government regulation of campaign spending might plausibly lead down the slippery slope to political slavery. Because slippery slope arguments nearly always rest on speculative empirical premises, they rarely can be rebutted in any formal sense. Nevertheless, slippery slope arguments can be more or less plausible, and I argue that none of the possible mechanisms of descent down the slope is sufficiently plausible to justify the Court?s uncompromising, absolutist stance against regulation of campaign spending.

Full post as published by Legal Theory Blog on August 26, 2010 (boomark / email).