Limiting the Limits: Principles to Protect Free Expression While Fighting the Power of Big Money in Politics

Abstract

Abstract Supreme Court doctrine assumes that limits on political spending threaten Free Speech but does not adequately address the precise relationship of money to speech or the precise harms the Court seeks to avoid. The result has been a money-in-politics jurisprudence steeped in fear and speculation rather than focused on the best ways to both facilitate robust political speech and protect the equal citizenship at the core of our democracy. This article takes potential threats to free expression seriously by defining dangers with particularity and suggesting the proper role of courts in safeguarding against them. To facilitate this inquiry, the article proposes a more nuanced conception of the relationship between money and speech than courts or commentators have typically employed, suggesting that money can act to facilitate the creation, provision, or amplification of speech in various social contexts.