Justice Breyer Needs an Originalist Law Clerk

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McCutcheon v. FEC reveals fundamental differences between the Roberts Court majority and the dissenters about the First Amendment’s protection of political speech. The justices in the majority asserted the traditional view that the First Amendment is an individual right.   In contrast, Justice Breyer argues for the McCutcheon dissenters that the First Amendment is in part a “collective right,” and thus government interests in favor of campaign finance regulation are not “to be weighed against the constitutional right to political speech. Rather they are interests represented in the First Amendment itself.”  The latter view makes it much easier to upheld government restrictions that are targeted at resources to support speech at election time.

To support his view of the First Amendment as embodying a “collective right,” Breyer appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents.  But the materials he cites undermine his claims. First, he purports to demonstrate that James Wilson believed that “the First Amendment would facilitate a ‘chain of communications between the people and those to whom they have committed the exercise of the powers of government,” by quoting a snippet from a lecture by Wilson on the Constitution.

But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer states, but in a discussion of the novelty and virtue of representative government, as opposed to “monarchical, aristocratical, and democratical” forms of government. 

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Our Hereditary Candidates and Campaign Finance Regulation

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It is remarkable that four of the leading likely candidates to become the next President of the United States have had close relatives who were Presidents or were serious candidates for President. The dominant Democrat, Hillary Clinton, is married to Bill Clinton.  On the Republican side, Jeb Bush who is perhaps a slight frontrunner, counts both his father and brother among former Presidents.  Mitt Romney, the Republican nominee for President in 2012, is also the son of George Romney, a prominent candidate himself.  And Rand Paul is the son of Ron Paul, a perennial candidate for President.

In a relatively meritocratic nation, how can our candidates for President have such a hereditary cast? Perhaps it just happens that, of the 200 million adults in the United States, four of the best qualified candidates are close relatives of other Presidents or presidential candidates?  But there is a less happy answer: our campaign finance system provides advantages to the politically well connected and hardly anyone is as well connected as the close relatives of those who have been Presidents or have run substantial campaigns.

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Another Step Toward Neutral Principles in Campaign Regulation

This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections.  The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.

A central doctrinal question in the case is whether the Court will apply its overinclusiveness/under inclusiveness test to these regulations.

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Seizing the Opportunity to Revisit the Republic’s First Principles

On Monday Senator Harry Reid introduced an amendment, which would permit both Congress and state legislatures to prohibit the use of resources for political speech at election time. The Republicans did not vote to filibuster it but instead by a substantial majority agreed to open debate. Senator Reid then complained that Republicans were trying to “stall” the Senate from getting to other items on his agenda. Washington has reached a new high in legislative hypocrisy: criticizing the opposition for wanting to debate an amendment that you brought to the floor!

The debate is scheduled to last the week. And nothing is more important than having a debate that brings us back to the consideration of first principles. Political theorists since Machiavelli have been absorbed by the problem of preventing the decay and corruption of the republic as its founding principles gradually recede from public view. The most important safeguard against such decline is the creation of mechanisms that naturally ventilate deep disagreements and renew the citizens’ appreciation of their republic’s first principles. Floor time for divisive constitutional amendments is such a mechanism and this one illustrates three first principles on which our two major political parties disagree.

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The Silver Lining of a Very Bad Proposed Amendment

This week, Senate majority leader Harry Reid will bring to the floor an amendment to the Constitution that would permit Congress and the states to target the resources that certain people use to speak about candidates and issues at election time.   A commentator recently complained that bringing this amendment to the floor wastes the Senate’s time, because the proposal has no chance of securing the supermajorities it would need to be passed and ratified. I nevertheless would welcome a prolonged debate.

My reason is not that I favor the amendment.  Giving Congress the power to send people to jail for messaging at election time seems to me the most pernicious effort to suppress free speech by the federal legislature since the Alien and Sedition Acts.  Prohibiting expenditures on political speech curtails the opportunity for citizens to make their voices heard and for other citizens to learn what their representatives are doing. And allowing members of Congress to determine the content of such restrictions turns the First Amendment’s charter of freedom into a delegation for regulation by self-interested regulators.

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Real Campaign Finance Reform: Legislating Through General Rules.

In a series of decisions on campaign finance legislation, the Roberts Court has made it clear that Congress cannot solve the enduring political issues of undue or unequal influence in politics by restricting speech. Now that legislatures are aware this option is no longer on the table, they are under more pressure to find other solutions.  Importantly, Congress could constrain undue influence by legislating through rules of general applicability.

Under a regime of generality,  Congress would disable itself from handing out money, lucrative projects, or regulatory relief to designated individuals or small groups. Such strictures would make corruption less likely and indeed eliminate the kind of influence which seems most undue. Decisions that that can be framed in terms of general rules are more likely to be aimed at the public good than at the provision of favors.

In fact, Congress recently moved toward legislating through general rules by eliminating earmarks. 

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Mutable ACLU v. Immovable Cato

The ACLU has modified over the last decade two important positions on civil liberties. Historically its position had been that limiting contributions to political campaigns was unconstitutional. In 2010 it shifted to support “reasonable” limits on contributions to political campaigns.  Strikingly, the ACLU in 2013 then failed to file any brief at all in McCutcheon v. FEC, which challenged aggregate limits on contributions. These limits prevented citizens from expressing support for individual candidates, even when those individual contributions were of modest size.

Second, in 1993 ACLU President  Nadine Strossen enthusiastically supported the Religious Freedom Restoration Act.  Later the ACLU, as David Bernstein reported, continued to support legal exemptions for reasons of religious conscience, but opposed subsequent bills providing for across-the-board exemptions  because of fear that they would interfere with anti-discrimination laws.  The ACLU today supports the bill to override the Hobby Lobby even though the  decision did not involve an anti-discrimination law.

In contrast, CATO, the premier libertarian think-tank, has been relentlessly consistent in its views on domestic policy, opposing infringements on both civil rights and property rights alike. The consistency has continued despite some unfortunate recent squabbles about the structure of its leadership.

The difference between the mutability of ACLU and the constancy of Cato underscores important truths about both the nature of liberty and politics.

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Here the People (are supposed to) Rule

ClintonAs she hawks her new book, Mrs. Clinton is saying provocative things. Her assertion that “American political system is probably the most difficult, even brutal, in the world” has raised eyebrows across the country.

In a world in which violent coup d-etat are still relatively common in many parts of the world, that’s a striking claim. American politicians are toppled by elections, not by violence. The parties hurl invective at each other, not ordinance. As John Adams reflected to Thomas Jefferson in 1823, “I should like to see an election for a President in the British empire or in France or in Spain or in Prussia or Russia by way of experiment. We go on pretty well—for we use no other artillery than goose quills: & our ink is not so deleterious as language & grape.”*

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A Jurisprudence to Grow the State

There are striking parallels in how the left-liberals treat constitutional liberty in political and religious expression. First, their positions in both areas are premised on a kind of faux neutrality that masks consolidation of their own power. As I have discussed, in campaign finance, left-liberals seek to eliminate the undue influence of the rich, regardless of their viewpoint. What this “neutrality” ignores is that by restricting the influence of some powerful citizens, it effectively expands the influence of other powerful groups who substantially affect the political climate and are not similarly constrained. These powerful  are most importantly, the mainstream media, academia and the entertainment industry that are predominantly—indeed in most cases—overwhelming left- liberal.

Similarly, in religious liberty, left-liberals want to restrict the capacity of religious organizations to project their views, as reflected, for instance, in their opposition to school vouchers available to religious schools. It is true that preventing religious schools from using vouchers treats all religions equally but it privileges a secular civic life. A government school can and frequently does have a secular creed that is some mixture of environmentalism and a particular take on the concept of state mandated diversity.  It is much more hospitable to reinforcing  a state-centered view of the world than a religious school.

A second point of comparison is the hostility of left-liberals to the rights of corporations.

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Originalism and McCutcheon Part III: Does Congress Have Power to Regulate Campaign Contributions?

For the first two posts in this series, see here and here. My last post on originalism and McCutcheon will address whether Congress has the power to pass laws that restrict campaign contributions. This is a complicated area and one that I have not studied. So take what I say with some caution. There are at least two issues: regulations of campaign contributions as to congressional elections and as to presidential elections. (One might, of course, draw further distinctions, such as those relating to contributions to political parties or for primaries.) As to congressional elections, the Constitution allows Congress to regulate “the Times,…

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