Shortly after Sonia Sotomayor's nomination was announced, I noted to a colleague that she, positively in my view, seemed to be a very strong First Amendment advocate. See, e.g., her dissent in Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002) (arguing against the majority's opinion that the New York Police Department was justified in firing an employee for privately disseminating racist materials). I suggested hope that she might apply such strong free-speech views to cases involving campaign finance restrictions.
The tolerance in this country for questionable behavior by public officials is illustrated by the persistence of extremely troubling--but legal-- practices in the public arena. In one of the murkiest and least well-controlled areas, we find ourselves debating what the quid pro quo's are for campaign contributions. Here we have abandoned standards we would surely apply in any other context. We would never condone private gifts to judges about to decide a case implicating the gift-givers' interests. Yet our system of election financing permits extensive private, including corporate, financing of candidates' campaigns, raising again and again the question what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate. Can elected officials say with credibility that they are carrying out the mandate of a "democratic" society, representing only the general public good, when private money plays such a large role in their campaigns? If they cannot, the public must demand a change in the role of private money or find other ways, such as through strict, well-enforced regulation, to ensure that politicians are not inappropriately influenced in their legislative or executive decision-making by the interests that give them contributions. (footnotes omitted)
As I read her comments, Sotomayor seems either woefully ignorant of or utterly unconcerned by the centrality of political speech to the First Amendment, and the pretty self-evident notion that monies spent on or donated to campaigns constitute political speech. See Buckley v. Valeo 424 U.S. 1, 14 (1976) ("[C]ontribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."); see also John Hart Ely, Democracy and Distrust 93-94 (1980) ("The expression-related provisions of the First Amendment . . . were centrally intended . . . to ensure the open and informed discussion of political issues.") (emphasis added).