David Kairys (Temple University - Beasley School of Law) has posted Prohibition of Limits on the Quantity of Speech in the Campaign Finance Cases on SSRN. Here is the abstract:
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Constitutional invalidation of laws limiting campaign financing in the 1980s faced two main obstacles in well established First Amendment law, both addressed in the opening passages of Buckley v. Valeo under the heading “General Principles”: the limits were imposed on money, not directly on speech; and they were not prohibitions but limits on amounts of money at levels that preserved the system of individual campaign financing. The first obstacle was removed by the famous conclusion that money is speech. The second, my focus here, was overcome without much notice at the time or since by reliance on what the majority considered an established First Amendment principle – government may not limit the quantity of protected speech. Citizens United v. FEC and all the protective campaign financing cases in between also rely on the anti-quantity-limits principle, to which they also generally apply the highest form of judicial review, strict scrutiny. It’s an appealing idea. Government shouldn’t dictate or limit the amount or intensity of views expressed by speech that is protected by the First Amendment. A limit on the quantity of speech represses some quantum of speech and may reduce the clarity, depth, impact, and reach of the message. If speech is protected, it should all be protected, and the more of it, the better. However, speech law was and is proliferated by often direct limits on the quantity of speech imposed by legislatures, courts and public officials: Limits on the number of picketers, the number of demonstrators, the number and frequency of permits for demonstrations and parades, the volume of amplifiers, the number and size of protest signs – all are regularly allowed. Some can be characterized as other than quantity limits, as the Buckley majority did – as different modes of speech, or as indirect as opposed to direct limits – but some are undeniably direct quantity limits on protected speech. And it’s not a principle at all: outside of the campaign finance context, decisions that allow limits on the quantity of speech – even if directly imposed on protected speech itself – rarely mention any First Amendment principle prohibiting quantity limits and do not apply strict scrutiny. Perhaps this is because there are good reasons not to extend heightened constitutional protection to unlimited quantities of speech (or anything else).
In the campaign finance cases, the anti-quantity-limit principle has been offered as obvious, simply asserted without need for support in reasoning or precedent. The only precedents the campaign finance decisions cite, or can cite, are each other. The reasoning supporting it in Buckley, the only campaign finance case to seriously address it, is an analysis that distinguishes “quantity restrictions” from some “time, place and manner” restrictions of different “mode[s]” of speech that had been allowed. However, quantity limits, whether direct or indirect, usually have been characterized as time, place and manner restrictions, and usually have been allowed, whatever the characterization, as long as they are reasonable. An exemplary trial court decision considered a town’s limiting some organizations to one permit per year for use of its open, public park for protected speech activities.
In the campaign finance cases, any limit on the quantity of money – on each and every additional dollar – is viewed and analyzed as if it were a total ban on speech and subject, like a total ban, to strict scrutiny. Nothing else matters – not the indirectness of the limit (which is on money, not speech), not the lack of a necessary or proven correlation of money to the quantity, quality or reach of speech, not the adequacy of the quantity of money or speech still allowed, or of the alternative forms of speech available. Application of the usual rules and principles of speech law to quantity limits on campaign finance would sustain them. No convincing explanation has been offered as to why there should be a quantity-limit principle that only applies to campaign financing.
This inconsistency and selectivity of rules, principles and approaches has characterized the law of free speech, and civil rights law generally, over the past several decades. The result in the law of free speech has been enlargement of the speech rights available to wealthy and otherwise favored people, and to their preferred form of doing business, corporations; restriction of the speech rights available to people of ordinary means and to various dissenters; and a free-speech barrier to public access to the media and to important electoral, economic and social reforms. There should not be special, more protective free speech rules for the large amounts of money donated or spent on electoral campaigns, speech of a form – and quantity – available only to the wealthy. Quantity limits on speech could be handled a variety of ways, including as time, place and manner restrictions, as prohibitions of speech in excess of the limits, or as subject to a range of distinctions, such as direct/indirect and quantity/mode. Whatever the rules and principles, they should apply to all quantity limits on speech.
