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At present, it is difficult to discern what rules govern compelled subsidization and where the constitutional limits lie. The root cause of the current confusion is the Supreme Court's failure to provide a coherent account of the First Amendment harm of compelled subsidization. Part I of this Article describes the present state of the doctrine. It identifies a number of practical problems, especially the imprecisions in and conflicts between the Court's holdings that leave it unclear how lower courts should decide novel cases. Part II is a critical discussion of the two most common arguments for a First Amendment right against compelled subsidization: that compelled subsidization infringes on dissenters' freedom of belief and that it restricts their freedom of expression. A comparison of compelled subsidization with the First Amendment interests at stake in compelled speech shows that neither argument withstands scrutiny and that this deficiency in theory is the cause of much of the confusion in practice. Part III argues that if there is a First Amendment right against compelled subsidization, it is grounded not in the liberty interests of dissenting individuals, but in compelled subsidization's potential harm to public political discourse. This brings a fresh perspective on the idea that there is a First Amendment interest in "democratizing the influence of money on the electoral process," and suggests a new, more general test for compelled subsidization cases. Part IV briefly discusses what it would take to transpose the results from a reformed compelled subsidization doctrine into the register of campaign finance regulation.


This work, copyright 2005 by Gregory Klass, was originally published in the UC Davis Law Review, vol. 38, pp. 1087-1139, copyright 2005 by The Regents of the University of California. All rights reserved. Reprinted with permission.

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38 U.C. Davis L. Rev. 1087-1139 (2005)