Campaign Finance Regulation and the Marketplace of Emotions

Abstract

This Symposium encourages its participants to ask whether free speech theories developed and applied by the United States Supreme Court in the twentieth century to fashion doctrine in different areas of First Amendment law remain valid in light of twenty-first century conditions and demands. The task of this Essay will be to focus on the theoretical model the Court applies in assessing the constitutionality of campaign finance regulation, particularly in light of new scientific research regarding the nature of electoral communications and the manner in which they are mentally received and processed by potential voters. It will conclude that the Court's model contains extremely questionable premises and assumptions that it has relied on to justify applying a stringent level of First Amendment protection to these communications. This stringent protection, in turn, has resulted in the Court striking down most attempts by the United States Congress and state legislatures to impose campaign-related spending limits on political candidates, parties, and interest groups, as well as limits on campaign-related financial contributions that the Court views as unreasonably low. This Essay will propose a theoretical model that appears to more accurately describe the nature and impact of electoral communications, and the level of free speech protection for those communications which that model might justify.