Buying an Audience: Justifying the Regulation of Campaign Expenditures that Buy Access to Voters

Abstract

This Comment suggests a new constitutional approach to the regulation of political expenditures. The approach pushes beyond the question of whether political expenditures are more like "speech" or more like "property"' and instead focuses on which types of expenditures fit into each category. Some expenditures, but not all, are necessary to create speech. These "speechenabling" expenditures cannot be meaningfully disentangled from the communication they make possible. Other expenditures, however, provide something of value aside from the speech itself as an incentive for individuals to listen to the speech. The classic example is expenditures on advertising, which reach listeners or viewers because they wish to consume the content with which the advertising is packaged. These "audience-buying" expenditures function as property and consequently deserve less protection. Courts should uphold campaign finance regulations that are closely tailored to protecting speech-enabling expenditures while regulating audience-buying expenditures in order to enhance political equality. Individuals and organizations with access to financial resources to buy advertising can offer audiences an attractive exchange: viewers need not pay for television programs they wish to watch because they also watch the commercials packaged along with them. Advertisers usually do not pay their audience directly, but instead pay intermediary media organizations, which in turn offer audiences content they value. Though indirect, this method of providing an incentive is functionally the same as offering a DVD with entertaining content or anything else the audience values as an incentive to view the advertisement. Unlike those who can afford to advertise, those with fewer resources can reach only those who are interested in receiving their