The First Amendment is a Mandate for Deregulation

Linda Greenhouse ‘s column yesterday and my post the day before are in agreement on one thing. As she puts it, “The McCutcheon decision is a powerful testament to the extent to which the free speech claim has, in the hands of the current court, become an engine of deregulation.” But she deplores the results. I applaud them.

My reasons for applause are simple: the First Amendment is an engine for the deregulation of political expression. That’s its essence.   It says that “Congress shall make no law .  .  . abridging the freedom of speech.” The Court has made clear for decades that speech is to be interpreted broadly to include all forms of expression, including burning a flag or dancing in the nude. Like most civil libertarians, Ms. Greenhouse is presumably fine with these decision. Is a contribution to a political candidate less a form of expression than those actions? In McCutcheon the Court is just applying neutral principles in applying strict scrutiny to government attempts to interfere with expression.

The First Amendment is a free, not equal speech provision. It is no respecter of persons. It does not matter that rich people are often engaged in this kind of expression or that it unpopular with some people, particularly the incumbents that passed the law limiting donations and may be unseated by challengers who receive too many of them.

Ms. Greenhouse complains that McCutcheon does not follow a few sentences in the famous case of Buckley v. Valeo that upheld the aggregate limits on donations to candidates. But there is no reason that a Court should follow a precedent if it conflicts with settled principles beyond that case, particularly in First Amendment law where neutral principles help guarantee that the Court is not trying to favor one political coalition or another.

Ms. Greenhouse’s other objection is that Chief Justice Roberts narrows the evil that campaign finance regulation seeks to prohibit from “undue influence” to “quid pro quo corruption,” like bribery. But again undue influence is the kind of vague standard that has rightly had no place in First Amendment doctrine. In Cohen v. California, in upholding the right to flaunt a t-shirt with four letter word, the Court famously declared that “One man’s lyric is another’s vulgarity,” reflecting the view that the First Amendment demands that any restrictions must be clear and not subjectively drawn. Undue influence cannot do that kind of work. One man’s undue influence is another’s sensible intervention for the public good. How are we decide what is “undue?” Would undue influence include that of the editorial page of our leading newspaper (the one for which Ms. Greenhouse writes) that almost uniformly endorses the candidates of one of our political parties?

The Constitution protects rights that cannot be taken away by our politicians or simple majorities because they think doing so will lead to the greater good. Progressive thought has been uncomfortable with this basic structure whenever they fear that those rights will interfere with their agenda of controlling the markets and other forms of decentralized ordering. To that end, they read the Contract Clause out of the Constitution and greatly weakened the distribution of powers between the federal and state government that protected individual rights though the ability to exit jurisdictions. With campaign finance reform they are now trying to eviscerate the First Amendment in precisely the realm where it is most needed—politics. We must be grateful that the Roberts Court is standing in their way. It is their most important service to the nation.

 

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. R Richard Schweitzer says

    Speech:

    The fact that what passes as the “speech” (expression) of some has so little content that it requires peculiar modes for its transmission does not mitigate the constitutional restriction on Congress.

    The fact that the speech (expression) of a particular presenter is louder or more pervasive (for any reason) does not mitigate the constitutional restriction on Congress.

    If modes, intensities and pervasiveness of expressions are beyond mitigation of the constitutional restriction on Congress, McCutcheon is undeniably correct.

  2. says

    Professor McGinnis, I agree w/your essay blog, Great following sentence:
    “To that end, they (Progressives) read the Contract Clause out of the Constitution and greatly weakened the distribution of powers between the federal and state government that protected individual rights though the ability to exit jurisdictions.” I call your “Contract Clause” more rigidly as a “Prohibition Clause”. Which prompts me to ask if you would apply your same reasoning here to the “free expression of religion” as an “exit jurisdiction(s)” of the Fourteenth Amendment?
    Respectfully, John

  3. Al Brockman says

    I am not a lawyer nor am I an expert on the Constitution. I am a conservative, a proponent of free speech and I think I understand the first amendment. I do have a serious concern with your position. It is one thing to praise free speech. It is totally another to let the amount of free speech vary only with the amount of money that you have. This is true whether you are the Koch Brothers, Tom Steyer or Michael Bloomberg. You should not have the right to drown out my free speech with your $50 million. Please tell me how I can effectively express my individual speech in that arena?
    What you are arguing is theoretical and belongs in a law school; my concerns relate to what happens when this flood of money is unleashed in the real world.
    As an aside, how much good could be done for these billionaires’ concerns and interests if the mega funds were extracted from politics and used directly to support those causes?
    The system has become so distorted with money that we are marching to the destruction of “government of the people”, all the while carrying a banner that shouts “Thou shalt not impinge upon my right to $50 million of free speech”.
    ALso, who benefits from the $50 million? The media; the press; the lobbyists; and the “consultants”.
    Can you not see what is wrong with what you espouse???

  4. Scott Amorian says

    “How are we decide what is “undue?””

    I just read Peter Schweizer’s excellent journalistic book Extortion where he digs deeply into the problems of bribery and extortion in government. He documents how prolific the problem of bribery is, and provides a good overview of other instruments of undue powers as well. I found the revelations in his book to be simply shocking.

    When someone gives money to an officeholder with the understanding between the two of them that a favor is expected in return, the crime of bribery has taken place. This practice of bribery dominates American politics. It is done so openly that it is a national embarrassment. Government actions driven by bribery is undue.

    Campaign reform is absolutely necessary in this case.

    The problem with campaign finance reform is not whether undue practices need to be exorcised from American political practice. The problem is how to better define the problem, and then how to correct it without putting the beneficiaries of the problem in charge of making the correction to the problem.

    Under current law federal campaign donations are capped, which means that government has access to who gave how much money to who. This creates a situation in which officeholders not only know who they are indebted to, but it also gives them the ability to form an enemies list. I do not want politicians with their political machines to put me on an enemies list where I would be punished for supporting the opposing candidate. These kinds of laws have the effect of blanketing free speech, so they are unjust, and are in desperate need of reform. They are an example of what happens when the beneficiaries of a crime are put in charge of correcting the crime.

    I understand the concerns about problems with campaign finance reform, but I do not see how it benefits me to imagine myself as helpless and give up and refuse work to enact necessary reform. I see that imagining as a problem by itself. Instead, I ask, how can we enact campaign finance reform without the beneficiaries of the crime acting as the reformers? Whether those beneficiaries are Progressive or Conservative means nothing. What must happen to get us from here to there? What are the roadblocks, and how can they be removed?

    • gabe says

      Good questions!
      However, it seems to me that we can continue to “fiddle around” with the margins of campaign financing and its attendant problems for eternity and never achieve satisfactory outcomes – so long as we continue to accept a government that has poked its nose into every conceivable nook and cranny of our lives AND believes that it is it’s role to “correct” every condition, market disruption, moral deficiency, etc etc.
      If the government can not effect specific outcomes (in the market or elsewhere) then there simply is no value in funding campaigns for the rent seeking contributors.

  5. Mark Riley says

    We miss the point that while money may be speech, their are two issues at play here. One is regulating speech and the other is access to the town square or Roman or Greek forum. The history of western civilization and American Democracy has always assumed that more debate and speech is good. Hence the protection of speech.
    In the time of the Founding Fathers one could stand and bellow in the town square for all to hear. In fact they could door knock every voter in a single day. Never did the Founders anticipate a large voter population covering hundreds of miles and the emergence of mass media.
    Thus protecting speech is only half of the battle and with out access to the town square or forum or voter the fortunes of democracy do not bode well for the future. wealth has never been contingent on elections in past democracies as it has become for this one.

    • gabe says

      Actually, wealth has always (and always will) play a significant role in elections in both this country and abroad. those” little knock abouts” you mentioned were funded (perhaps, “fueled by” would be a better term) by wealthy citizens who provided rum punch, food and other goodies to prospective voters. In fact, if memory serves me well, John Adams had a group that regularly met with other like minded folks at a local Boston tavern during which time punch and other beverages were freely supplied. Certainly not the mega-millions of today but still significant expense for the time.

      Also, should we do as you suggest which is to limit corporate speech in the hopes of “broadening” access, we will in all likelihood end up with precisely the opposite effect. Without some counter-punch to the overwhelmingly Progressive slant on news, opinion, movies, etc, we will be reduced to listening to a one sided presentation of policy alternatives AND the poor knuckleheads such as I will still not have a voice.

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