[T]here are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good.
The rich and the poor alike are free to give money to candidates and parties, no disagreement there. Money talks. But no right is absolute, and we limit freedom of speech and association in numberless ways, for the good of the community. The difficulty with Justice Roberts' opinion is that it lays out a doctrine, based largely on the language of his own prior opinions, that only a clear and present danger of selling government favors, or the appearance of doing so, can justify limitations on political expression or association.
Justice Holmes famously said that the clear and present danger of a crime would justify punishment of otherwise protected speech. In Buckley v. Valleo the Court upheld portions of the campaign finance law against its first challenge, saying that the risk of bribery, and the appearance of bribery, was sufficient for the government to impose limits on individual contributions. Rogers' doctrine overrules that precedent and turns Holmes on his head. It makes the equivalent of bribery the only justification for limiting campaign contributions. Justice Breyer energetically points out that this is a new doctrine that is not justified by any precedent, not even by Roberts' own past opinions. It is a legislative pronouncement for future application. One imagines briefs are already being written, arguing that the few remaining limits on contributions are unjustified, since a Congressman is not likely to be bribed solely by a gift of $2600. . . .
Among the many legal questions raised by Roberts' doctrine is the awkward circumstance that in this case it rests upon what he claims to be a factual refutation of the purpose of the law in question. But more about the doctrine and the supposed facts on which it rests, later.