Originalism and McCutcheon: Part II — Possible Alternative Bases for Protecting Contributions

In my first post, I discussed how one might conclude that the meaning of “abridging the freedom of speech” could cover laws that prohibited or restricted gifts earmarked for purposes of speech. In this post, I want to discuss a couple of alternative ways that one might use to protect such campaign contributions: (1) freedom of association and (2) contributions as the speech of the contributor. While I believe the arguments in my first post provide possible ways of protecting certain campaign contributions under the original meaning of the First Amendment, I am skeptical that either of these alternatives provide strong support for such protection.

The Supreme Court has for at least the last half century recognized a doctrine of freedom of association. People often speak about this doctrine as if it were a distinct right. But an examination of the First Amendment reveals no express right to “freedom of association.” Thus, it is not clear how the First Amendment protects freedom of association.

It is possible that one might be able to derive some kind of freedom of association right from the original meaning of the First Amendment. Some people argue that freedom of association derives from freedom of speech whereas others claim it comes from freedom to petition and assemble. I could imagine an argument for freedom of association that is similar to the argument I made in my first post (for how one might derive protection for contributions for speech purposes). But the point is that deriving this protection would itself require a good deal of work and is therefore unlikely at this point to provide the needed originalist support for constitutionally protecting contributions.

Another possible basis for protecting campaign contributions is to view them as the speech of the contributor. That is, the contribution expresses the contributor’s support for the candidate. I am skeptical of this argument. I used to question whether symbolic conduct was speech, but Eugene Volokh has provided evidence that certain types of symbolic conduct, such as burning people in effigy, constituted speech for purposes of the First Amendment. But that does not mean all conduct did and I doubt that giving money is properly viewed as symbolic.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. R Richard Schweitzer says

    I beg of you, who are so concerned with “originalism” (important though it be) to parse the first section of the dissent in this case as penned by Breyer, J. and joined by three others (for just under a majority – to be a majority if the next appointment is another Breyer). In that paring you will discover such a departure from “original” concepts of the **Freedom** (not “Right”) involved that it outweighs all other concerns, such as “what constitutes speech.”

    Look for the words; “the Collective Right.”
    Go for the jugular, not the fecal.

  2. gabe says

    ” That is, the contribution expresses the contributor’s support for the candidate. I am skeptical of this argument.”

    To accept this skepticism is akin to accepting the argument that the political Op-Ed I author is not speech simply because a) I did not set the type, b) I did not run the presses and c) I did not toss the newspaper on my neighbors lawn for his later review.
    Perhaps, we are over-analyzing this issue. I understand that much is lost to the fog of history and one should be cautious when attempting to extricate from this fog certain conclusions, yet we must make some effort to do so with the few facts available.

    Did not the Founders both receive and provide “contributions themselves?
    Were not the writings of Publius, Cat, Federal Farmer not funded by some source?
    Did not Cato (I think) rail against the suppression of Anti federalists writings in some of the early states ratification campaigns (Pennsylvania and Massachusetts come to mind). While he may have argued against the “money influence” behind the Federalists writings, he did not object to the fact of such contributions but only what it represented – interests of a merchant class.
    In short, there does not appear to have been any presumption against contributions in pursuit of political aims. Consider also that many nominating elections were “funded’ by certain groups with both food and strong spirits and one begins to question the validity of the current challenges to campaign contributions.
    Heck, if it was good enough for them and for the State Ratifying conventions, how can it possibly be viewed as inconsistent with both their understanding, accepted practice and intent?

    Moreover, the giving of money need not be viewed as symbolic to qualify for protection. There was nothing symbolic about funding the fairly regular series of
    pamphlets and broadsides that were a commonplace during these debates. Nor was the strong beverage available for attendees to the nominating elections – both were pretty direct and were so understood.

    Methinks we are not parsimonious enough in our parsing of these “speech issues” and tend to overthink the issue into incoherence… but then again, I would have been one of the first to sample the punch!!!

    take care

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