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Wholly Native to the First Amendment: The Positive Liberty of Self‐Government

The Supreme Court has unequivocally and repeatedly rejected as “wholly foreign to the First Amendment” any suggestion that legislatures can regulate electoral speech in order to foster political equality. The Court is not oblivious to the distorting effects on the political process of large financial contributions. Rather, its reluctance to accept regulation of campaign speech in the name of political equality arises out of its skepticism about legislative purposes, in this arena, and its recognition that its institutional role precludes it from devising a measure of adequate political equality, insofar as any such measure would be contestable.

Professor Deborah Hellman turns that recognition on its head and in so doing offers an intriguing and potentially promising avenue through which to revisit the regulatory catastrophe created by Buckley v. Valeo. The Court, she tells us, was misguided to ignore the existence of a competing positive liberty, the interest in determining “how pervasively to extend market‐based principles of distribution and allocation” to influence self‐government.

While Professor Hellman avoids offering a textual link for the liberty of self‐government, a convincing case can be made that the positive liberty identified by Professor Hellman is quintessentially a First Amendment interest. It is beyond debate that protecting the functioning of representative government was, and remains, a core function of the First Amendment.

The Amendment cordons off a space for individual and collective liberty in order to preserve the possibility that democratic majorities will be able to hold elected bodies accountable to the public interest. It guarantees rights in the service of preserving the very conditions necessary to vindicate the positive liberty of self‐government that Professor Hellman elaborates. Those conditions go beyond free expression, which does not capture the entirety of what is required for representative government to function.

Freedom of speech and expression is certainly an important precursor to self‐governance, but it must be paired, at the very least, with protections for political participation if democratic majorities are to determine legislative outcomes. Robust political discourse does not get politicians elected or policies enacted. Changes in public opinion must still be translated into election results and policy shifts. This requires citizens to undertake political acts; they must vote, petition, lobby, and hold meetings, protests, and vigils. It also requires some individuals to choose to run for office.

Put differently, the Amendment protects the conditions necessary for self‐governance, rather than the freedom of speech per se, as evident by its explicit protection of several types of collective political conduct (assembly, petition and, by extension, association). The speech rights granted to individuals under the Amendment, therefore, cannot be so great as to undermine the other prerequisites of self‐governance. Taken together, the above implies, first, that the positive liberty of self‐government that Professor Hellman has identified is itself a First Amendment interest. Second, it implies that a campaign finance jurisprudence true to the First Amendment’s purposes must balance the interest in free speech with other elements protected by the Amendment, most importantly political participation.