Regulating Election Speech Under the First Amendment

Abstract

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.