Professor Erwin Chemerinsky, Dean of the UC Irvine School of Law,  has maintained a lively defense of Justice Ginsburg’s comments critical of Donald Trump, writing first in the New York Times and then elaborating on his position in a Los Angeles Times op-ed and a podcast discussion with one of his faculty members, Rick Hasen. It’s an interesting and instructive case about how the intensity of feelings about particular issues and candidates tends to drive views of the First Amendment and in particular of the wisdom of campaign finance restrictions. For Chemerinsky, in defending Justice Ginsburg, insists that more political speech is better than less, and he is clearly moved in saying so by what he views as the exceptional importance of the question – – the potential election of Donald Trump – – that Justice Ginsburg was addressing.

This is another application of the test of conviction on political spending issues. To what extent, when the stakes are high, will citizens and activists tolerate being told that they can’t spend however much they want, or operate as freely as they choose, in advancing public policy positions or promoting candidates?

Progressives tended to be less concerned with campaign finance limitations when the project before them was the defeat of George W. Bush and a conclusion to the war in Iraq. It was then that they made use of “527s”, the “circumvention” of the day, and Republicans played against type, professing horror that so little regard was paid to the campaign finance laws. Over the following years, the usual political and ideological alignments were restored. Progressives were convinced that stringent campaign finance limitations were essential to leveling the playing field and keeping open the possibility of some genuinely democratic dialogue in which the most money didn’t decide the outcome and skew public policy still more in favor of the wealthy and powerful.

Now, with the rise of Trump, whose defeat is viewed by many as imperative, it is fair to say that the vast majority of progressives and others would favor spend every cent available without regulatory impediment to keep the New York businessman out of the White House. (No doubt, there are those on the opposing side, who don’t care for Trump’s opponent, who take their mission to be similarly urgent.)

To Dean Chemerinsky’s credit, as he defends Ginsburg ‘s choice to speak out on Trump, he accepts that he cannot carve out a de facto exception for just this one instance but might have to consider more generally the constitutional balance properly struck on campaign finance. In this case, he is speaking of judicial campaign finance—of the limits on politics in the judiciary–but progressives, including Justice Ginsburg, have generally stood firm for restrictions on judicial, as on other, campaign spending. Chemerinsky is now not so sure. Perhaps, he reflects, the Court may in recent years have incorrectly limited too much judicial campaign speech.

In the LA Times, Chemerinsky opens with these words:

Imagine that you are a person with great influence, highly respected and with a powerful voice that commands enormous attention. Imagine that you see the country heading down a potentially destructive and very dangerous path. Do you sit quietly and, if the worst happens, always regret your silence, or do you speak out even if doing so will subject you to criticism?

It is an entirely fair question. And the one that follows is what is permitted to others who lack the same power and influence but who feel no less urgency about the country’s direction. This is not an argument for dispensing with all campaign finance controls, but for considering them carefully in the light of those times when many wishing to speak and to influence voters are convinced that there is a great deal on the line, with the “country heading down a potentially destructive and very dangerous path.”

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