Highlights from Federalist Society Student Symposium Panel on Campaign Finance and Free Speech

Here are highlights of The Federalist Society’s second panel of the 2017 National Student Symposium at Columbia Law School. The topic of the Symposium was "The First Amendment in Contemporary Society" and it was held March 3-4, 2017.

This panel covered recent Supreme Court cases, including the much-discussed Citizens United decision, that struck down many campaign regulations on the grounds that they infringe upon individuals' First Amendment rights. The panel, consisting of well-versed law professors, weighed in on whether decisions like Citizens United are correct as a matter of law and if they are desirable from a policy perspective.

Panelists:

- Prof. Brad Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School; Former FEC Commissioner 

- Prof. Richard Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law 

- Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law 

- Prof. Ciara Torres-Spelliscy, Fellow, Brennan Center for Justice; Associate Professor of Law, Stetson University College of Law 

- Moderator: Hon. Richard J. Sullivan, U.S. District Judge for the Southern District of New York

Selected Quotes:

“A corporation that is a publisher could be prohibited from selling a book?” - Bradley A. Smith, quoting a question posed by Justice Alito to Malcolm Stewart. Stewart said that yes, that it would be applied to a book. 

“Suppose a sign was held up in Lafayette Park saying vote for so-and-so. Under your theory of the Constitution the prohibition of that sign would be constitutional?” Bradley A. Smith quoting Justice Roberts' questioning during oral argument of Malcolm Stewart. “Noting that of course you could form a PAC, otherwise the answer would be yes…That is the case of Citizens United.” - Bradley A. Smith 

“Four judges on the United States Supreme Court say that the United States Government can ban a documentary movie about a political candidate in an election year if at any point in the process of production or distribution or sales there is a corporation involved. As there always is. As there has been in every movie you’ve ever seen in your whole life except for home movies. And that’s Citizen United.” - Bradley A. Smith 

“The requirement of [a neutral judiciary] seems to me to have a special residence in campaign finance law for 3 reasons. First, campaign finance decisions can change electoral outcomes and thus shape substantive results across the entire legislative policy space. Thus, if the Supreme Court does not apply neutral principles it permits speech to be silenced in a  way that may fundamentally distort politics. Second, the First Amendment is premised on a view that the government can’t be trusted with decisions about speech. But judges themselves are government officials thus the more a constitutional provision reflects an economy of distrust the more it requires the strict application of mutual principles to promote strict fidelity to the law. And [finally] judges aren’t just any government officials, they are appointed by politicians. . . .” – John McGinnis

The entire panel was an interesting discussion of how campaign finance regulation and First Amendment free speech interests intersect and conflict. 

By RNLA Law Clerk Daniel Boatright