The 2016 presidential contest will put the lie, but probably not the kibosh, to the case for campaign finance regulation. The contest’s results thus far—which, granted, is not very far—indicate what common sense says: money cannot protect candidates for whom citizens do not want to vote, nor are excessive sums necessary for those to whom the electorate is drawn.
I am less critical of Chief Justice John Roberts than many other conservatives and libertarians. I do disagree with some of his decisions, as I disagree with some decisions by every justice, but there are far more that I agree with than disagree. When there is no clear precedent on the subject, like the recent recess appointment case, he generally goes with the original meaning. And even when there is lot of precedent he often slaloms with the skill of a gold medalist through the precedents to move the law toward the original meaning. See Free Enterprise v. Public Company Accounting Oversight Board.
One’s evaluation of John Roberts’ performance may depend on how one prioritizes cases. While I disagreed with King v. Burwell, I do not think a contrary outcome would have had real-world effects, as Republicans in Congress would have caved on subsides. In contrast, on the most important constitutional issue of our time—resisting the attempt to tamp down on speech during elections—he has been the leader on the Court. He has applied neutral principles found elsewhere in First Amendment law to permit ordinary citizens to spend as much as they like to get out their views at election time, just like the media. He has given corporations the right to speak at election time, just as they do in other First Amendment contexts. He has rebuffed Justice Stephen Breyer’s dreadful idea that the Court should defer to Congress on such issues, which would turn the First Amendment from a charter of liberty into a delegation to self-interested regulators. The fate of our republic may rest on whether our representatives should be given the power to determine how opinion is shaped and he has been splendidly on the side of constitutional liberty in the most important of the cases about campaigns and speech.
But my main purpose in this post is to praise his treatment of the political question doctrine in Zivotofksy v. Kerry. He took a doctrine that was a mess and turned it into law rooted in the original meaning of the Constitution’s text.
Donald Trump is not the most usual candidate in this campaign season. That distinction belongs to Lawrence Lessig, a professor at Harvard Law School and now a candidate for the Democratic Party’s nomination. It is unusual for a professor to choose the Presidency as his starter office and doubly so when he is running on a single issue—reform of the electoral system. Perhaps triply so, when he promises to resign immediately after getting his reforms enacted.
While I admire citizens of accomplishment who are willing to put themselves forward, some of Lessig’s core ideas pose a threat to free speech and indeed to liberal democracy itself. In his book, Republic Lost, Professor Lessig argues that the Framers believed that elections should make the government dependent upon the people alone. That dependence, according to Lessig, was the basic principle of republican government at the time. As result, Congress can legitimately regulate campaign expenditures to prevent “the distortion” that would occur from permitting legislators from becoming dependent on those who make campaign contributions or expend large sums of money on elections.
Lessig tries to use the rhetoric of republican government to recast the equality argument against permitting citizens to spend independently on campaigns or make substantial contributions to candidates. These interventions, according to this argument, make some citizens more politically influential than others. But Lessig’s focus on dependence demonstrates why an equality argument cannot be rooted in the original Constitution.
The Constitution emphatically does not provide any measure for deciding how public opinion becomes “distorted.” The constitutional dependence of representatives does not come from their being in sync with the opinions of their constituents on any set of issues but on their getting the most votes at periodic elections.
The most comprehensive study of the ideology in the legal profession ever has just been published. It confirms what most people have already intuited: lawyers as a whole lean strongly to the left. Within the profession, a few characteristics predict that a lawyer will be even farther left than the median. Females and government attorneys are even more liberal, and no category is farther to the left than law professors. So much for diversity in legal education.
But what is most interesting about the study was its comparison of the ideology of lawyers with that of other key professions. Academics as a whole are substantially more left-wing than lawyers, and journalists in the print media are even slightly more left-wing than academics. Thus, we now know that there is a shared ideology of what we might call the scribal class – those who seek to alter the world by their use of information and rhetoric.
This scribal class wields enormous political power.
Let us, for a moment, imagine someone who breaches the no-fly zone over the U.S. Capitol, calling forth bomb squads, triggering investigations at the FBI and NORAD, to protest perceived violations of the Second Amendment. Could the editorial pages of Washington find a limb high enough from which to hang him?
Probably not. But if a mail carrier pulls the same stunt to advocate restricting the First Amendment in the name of campaign finance reform—as gyrocopter pilot Doug Hughes did in April, for which he was indicted last week—his apologia is printed on the op-ed page of the Washington Post.
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.
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.
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.
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.
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.