Regulating Election Speech Under the First Amendment, 77 Texas Law Review 1837 (1999)
Campaign finance reform has become the Vietnam of First
Amendment theory and doctrine. Or perhaps, in deference to the
sensibilities of my generation, I should say that it has become the Kosovo,
since the beneficence of our intentions in the latter case is so much more
apparent. With the best of motives, we have created a quagmire.
My own untutored inclination would be to approach the issue of
campaign finance reform by focusing on floors rather than ceilings.
Instead of restricting expenditures, it would seem to me easier and more
efficacious to require each broadcast licensee, as a condition for its license,
to reserve a fixed amount of time for the speech of bona fide candidates
during an election. Such an approach would endow candidates with the
opportunity to participate meaningfully in public deliberation. It would be
simple and efficient. It would diminish the elaborate, intrusive, and
expensive regulatory regime that we presently endure. I very much doubt
that after Red Lion there could be any serious First Amendment objection
to such a scheme, and, although the scheme might be challenged as a
taking of the property of broadcasters, my guess is that such a challenge
would not prove insuperable.
Date of Authorship for this Version
Post, Robert, "Regulating Election Speech Under the First Amendment" (1999). Faculty Scholarship Series. Paper 4637.