New research illustrates how public opinion, often misinformed, has served as a basis for courts to bless the restriction of First Amendment liberties.
You may think the Bill of Rights safeguards our liberties from the whims of public opinion. After all, as Justice Robert Jackson observed in the 1943 case of West Virginia State Board of Education v. Barnette, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.”
Well, you’d be wrong, as we’re reminded by David M. Primo and Jeffrey D. Milyo’s latest work, Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters. In this welcome addition to the discourse on the country’s campaign-finance system, the authors’ research illustrates the ways in which public opinion, often misinformed, has served as a basis for courts to bless the restriction of First Amendment liberties.
The Constitution says: “Congress shall make no law . . . abridging the freedom of speech.” Yet the Supreme Court carved out an exception, allowing such a law if it deters the “appearance of corruption spawned by the real or imagined coercive influence of large financial contributions.” That exception comes from Buckley v. Valeo, the landmark 1976 case in which the Supreme Court struck down key provisions in the Federal Election Campaign Act while upholding others, including contribution limits.