This lecture will explore the Supreme Court’s fundamental misunderstanding of the First Amendment in its campaign finance jurisprudence and how it could be moved to a more enlightened place. The Court has long viewed restrictions on money spent on elections as equivalent to direct restraints on speech and thus begun its analyses of campaign finance restrictions with the premise that they infringe on First Amendment rights. Properly understood, however, reasonable campaign finance laws promote First Amendment values; the Court’s jurisprudence needs to be turned upside down.
David Kolker will discuss the flaws and potential in this area of the law from his perspective as a long-term litigator of campaign finance cases. The Court’s flawed jurisprudence has created a doctrinal silo around campaign finance laws, ignoring other First Amendment rulings that have emphasized the value of diverse debate, recognized the wrong of discrimination based on wealth, and upheld viewpoint-neutral rules that further important government interests.
After describing the Court’s mistakes and his vision for a better jurisprudence, David will explore how change could evolve through incremental, strategic litigation. As part of this analysis, the lecture will explore the unstated assumptions that underlie much of the Supreme Court’s public reasoning and whether and how to address those premises in actual litigation. In particular, much of the Court’s libertarian approach to campaign finance laws seems to rest on its belief that the government has no role in restricting the influence of money on candidates and officeholders as long as donations are not given a part of a direct exchange of money for specific action. What is the best strategy for weaving together arguments about the Court’s unstated premises, existing negative precedents, and fresh evidence that can address all relevant arguments?
Friday November 12 3:00-4:00PM ES (followed by reception)
Purcell Reading Room (SL 101), University of Virginia School of Law, 580 Massie Road
From Emmett Strett (either North or Southbound), turn onto Arlington Blvd.
Turn LEFT onto Massie Rd. (Law School will be on your right)
Turn RIGHT onto Nash Rd. (between Darden construction and Lax School)
Visitor parking (free for event) is on immediate RIGHT or other D2 parking spots are available straight ahead.