Once upon a time, liberals pushed free speech at every opportunity. They lauded Justices Oliver Wendell Holmes and Louis Brandeis for protecting unpopular views via the First Amendment early in the last century, for instance. During the 1960s, Berkeley’s Free Speech Movement demanded the right to demonstrate politically on campus—and liberals championed the cause. Similar progressive cheers rang out when the Supreme Court extended the First Amendment to protect inarticulate expression, like nude dancing and flag burning.
But now liberals want to empower the government to put people behind bars for advancing political ideas, come election time. Presidential candidate Hillary Clinton has declared one litmus test for a Supreme Court justice: a commitment to overrule Citizens United v. the Federal Election Commission, the 2010 Supreme Court opinion upholding Americans’ First Amendment right to use a corporate form to criticize or praise politicians running for office. (The politician criticized in that case was none other than Hillary Clinton.) Worse still, Democratic senators have introduced a constitutional amendment that goes beyond reversing Citizens United and gives Congress substantial discretion to regulate how electoral debates are conducted.
This dramatic shift suggests that liberals have lost faith in their arguments—above all, at the ballot box. If you hold sway over the media and the academy and yet still fail to convince a majority of voters with your views, suppressing speech that counters those views can start to seem like a constitutional imperative.
And make no mistake: beyond the rough-and-tumble of political campaigns, left-liberals continue to dominate the institutions that set the nation’s political agenda. As incontrovertible and well-known data show, academics and journalists have, on average, quite liberal opinions; lawyers, too, lean left. The left-wing professors articulate the long-term intellectual goals, which are generally premised on the need for expansive government programs to achieve them. As John Maynard Keynes famously observed, “politicians distill their frenzy from some academic scribbler of a few years back.” Newspapers and television news broadcasters then shape the shorter-term political and policy agenda, and—Fox News, the Wall Street Journal, and a few other major outlets excepted—they follow the academics’ lead. Liberal attorneys litigate on behalf of their favorite public causes, also helping to tilt policy to the left. Such agenda control, needless to say, is enormously valuable politically. Most citizens aren’t sufficiently interested or coordinated to get items onto the agenda themselves.
Elections, though, can disrupt this control, providing opportunities and motivation for citizens who aren’t academics, media representatives, or legal advocates to speak about public matters—and get others, perhaps, to listen. Among the citizens who tend to enter the fray at election time are those with the financial means to send out messages. These wealthy people don’t all lean right—the Koch brothers on the conservative side are countered by George Soros and Tom Steyer on the left, for example—but as a group, they’re far more ideologically balanced than journalists, academics, and lawyers, and they often have opinions that aren’t well represented in those elite precincts. Is it a coincidence that campaign-finance restrictions fall most heavily on these individuals?
Curbing citizens’ opportunities to press their political ideas doesn’t just skew politics to the left ideologically; it also makes politics more insular. Incumbent politicians and America’s two major parties already have powerful brands. Insurgents thus need to spend lots of money to get an opposing message out, particularly when incumbents have a common interest that may not coincide with the public interest. Restrictions on self-financing candidates would have prevented a political neophyte like Ross Perot, running for president as an independent in 1992, from making the issue of a balanced federal budget central to the election—a goal that would be realized during the administration of the winner of that race, Bill Clinton, but that politicians long resisted, since it constrained their ability to spend money on pet projects. More recently, Governor Bruce Rauner has challenged Illinois’ ingrained habit of borrowing to pay off public-sector unions, a practice sustained by Democrats and Republicans alike in that state. He could do so only because he could spend heavily to get elected as a businessman-outsider on a platform that bucked the Chicago way.
While some cite the candidacy of Donald Trump as evidence of the malignant influence of money in politics, his rise is better understood as a demonstration of the power of celebrity. Trump has spent little compared with other major candidates. Instead, he has exploited his commercial brand, built up from a career outside politics. Restricting money in political campaigns will make such celebrity more, rather than less, powerful.
Fortunately, even as liberals have abandoned their traditional support for free political speech, its protection has become central to Supreme Court jurisprudence under Chief Justice John Roberts. At almost every turn, the Roberts Court has made sure that campaign regulation is subject to ordinary First Amendment principles and doesn’t become, as liberals desire, a law unto itself, justifying restrictions that would be quickly ruled unconstitutional when other forms of expression are involved.
The Roberts Court’s key insight in the campaign-finance debate is that any laws restricting electoral speech must obey “neutral principles.” Neutral principles are a vital concept in modern constitutional law because it is the Court’s neutrality—its impartiality—that ultimately justifies judicial review of the decisions of the more partisan political branches. A Court decision should be generalizable beyond whatever dispute is at stake and whatever the characteristics of the parties involved.
Consider how the Roberts Court has treated the mantra beloved of reformers who want paid political communications curbed at election time: “Money is not speech.” Outside campaign regulation, the Supreme Court’s First Amendment jurisprudence has banned any restrictions of expenditures that pay for expression. A government-imposed limit, say, on the amount of money a newspaper could spend for investigative reporters would be obviously unconstitutional, as would regulation restricting how much a publishing house could pay for a manuscript. Why, if neutral principles are adhered to, should money spent on political campaigns be any different? As Jud Campbell notes in a forthcoming issue of Stanford Law Review, when the government regulates by reference to particular expressive activity (political ads, for instance), it is restricting speech that it doesn’t like—and targeting certain kinds of speech for special regulatory burdens is what the First Amendment was intended to prevent.
In 2008’s Davis v. FEC, the Roberts Court extended this neutrality reasoning to strike down a law that would have relaxed the campaign-contribution limits for any candidate running against a self-financing rival who was spending substantial sums on his campaign. Congress, the Court held, was unconstitutionally skewing the campaign-finance law to disadvantage a candidate because of spending related to a clear expressive activity: campaigning. The analysis would be no different outside the campaign context: the government could not change its usual tax or employment laws to disadvantage a newspaper because of its First Amendment activity.
Or take a central issue in Citizens United of whether the right to express views about candidates in a political campaign extends to corporations; the Court found, embracing neutrality once more, that it did. Here again, the Court’s reasoning relies on earlier First Amendment cases, in which landmark decisions have upheld the rights of corporations to talk about politics. In New York Times v. Sullivan (1964), the Court ruled in favor of the Times (a corporation), strengthening First Amendment protections against libel suits by public officials—quite the irony, given that newspaper’s incessant complaints about Citizens United.
The First Amendment’s text, in fact, supports corporate speech: “Congress shall make no law . . . abridging the freedom of speech.” As set down by the Framers, the right isn’t limited to particular kinds of speakers but bans the government regulation of speech, period. And if the First Amendment protects an individual’s right to speak, why shouldn’t a group of individuals, banded together in a partnership or other association, also enjoy that right? And if an association has that right, why would it lose it when it takes corporate form?
Citizens United has also paved the way for people to join forces and enjoy the same expressive rights as the media through so-called Super PACs. These independent political committees can indirectly back candidates—that is, they can’t give direct money contributions to candidates but can run, say, a supportive ad, and do so with unrestricted money. Super PACs can distribute the twenty-first-century equivalent of the partisan pamphlets of the early republic. Targeting their expression while leaving media expression alone would betray the principle of neutrality.
In a more recent campaign-finance case, McCutcheon v. FEC (2014), the Court ruled unconstitutional a congressionally imposed limit on the amount of money that any individual could contribute to federal candidates during an election cycle. The government had justified the restriction in part as a prophylactic measure to preserve limitations on contributions to individual candidates. Without a ceiling on total campaign contributions, the government argued, a crafty donor could skirt individual limits by giving to many different candidates or political committees, with the expectation that the money would then get passed on by the initial recipients to his preferred candidate. The Roberts Court found that the government could have protected the integrity of individual contribution limits without restricting political speech in such a broad, non-neutral fashion. For instance, Congress could have simply limited the transfer of campaign funds among candidates or political committees, which would prevent circumvention of individual contribution limits without interfering with a donor’s ability to express support for multiple candidates.
The McCutcheon decision also reflects neutral principles because it imposes the same kind of test used in other areas: it requires legislators to burden speech no more than necessary to meet objectives. Without this kind of constraint, Congress could meddle with speech far more expansively, under the guise of pursuing the public interest.
If the Roberts Court majority has been relentless in trying to make campaign-finance jurisprudence consistent with general First Amendment principles, the dissenters in these cases—Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—have been no less persistent in trying to carve out exceptions to permit the comprehensive regulation of political campaigns.
Breyer, writing for all four dissenters in McCutcheon, argued that the Court should not apply the scrutiny typical of First Amendment cases but instead rely on legislators’ judgment about what best serves the public. His premise is that members of Congress are uniquely knowledgeable about how to design the rules for their campaigns. But he ignores the substantial interest that politicians have in protecting their incumbency.
Breyer is even willing to rethink the meaning of the First Amendment, arguing that it’s best understood as in part a “collective right,” with a goal of connecting the nation’s legislators to the true sentiments of the people. In this revised understanding, the First Amendment’s purposes are advanced when the government cracks down on speech (such as political donations from the wealthy) that may mislead lawmakers about where popular opinion stands on a given issue. Breyer’s argument actually turns the First Amendment on its head. The First Amendment wasn’t designed to empower the majority, acting through the federal government, but, like the rest of the Bill of Rights, to limit the majority’s federal power. Through the long-settled doctrine of incorporation under the Fourteenth Amendment, moreover, this limitation on government power has been extended to state governments.
Yet Breyer has found ample support in the legal academy for a First Amendment that allows the subordination of the individual voice to the collective will. Lawrence Lessig of Harvard Law School, to take one prominent example, has devoted the last half-decade to the reform of political campaign regulations—especially the rules on election spending, which he wants to tighten dramatically. According to the Framers, government should be dependent on the people alone, Lessig argues, so Congress must prevent the political “distortion” that occurs when legislators become overly dependent on the wealthy. Strong limits on campaign expenditures and contributions can thus be constitutionally justified. By its logic, though, Lessig’s argument would permit Congress to regulate the press, too. Its power to distort opinion is surely as great as, or greater than, that of the wealthy. An editorial endorsement from an important newspaper like the New York Times can have a significant influence on how people vote. Needless to say, a congressional muzzle placed on journalists would be met—rightly—with howls of indignation from Lessig and other progressives.
Beyond its startling implications, Lessig’s theory fundamentally misapprehends the way the Framers viewed republican government. For the Constitution’s architects, representatives’ dependence on the people comes not from being perfectly in sync with their constituents’ views on every issue at every moment but on getting enough votes in periodic elections. The Constitution, it’s worth noting in this context, includes no mechanism of direct democracy, like a referendum, to connect policy more closely to citizens’ opinions on particular issues. The Framers recognized that people often take positions on one issue that are in tension with, if not outright contradiction to, their positions on others and that their thinking might be subject to momentary passions that they would later regret. The Constitution empowers legislators to sift public opinions for help in determining the right course of action but doesn’t tie them indissolubly to those opinions, or require that they be treated equally.
The First Amendment guarantees freedom, not equality. Rights are exercised to radically unequal degrees, and the right to speech is no exception. A few people are articulate, but most aren’t. Some people are wealthy and can push their views with their money. Others own or work for the media or academia and can advance their opinions disproportionately in those settings. Still others command extra attention through celebrity. Most citizens have none of these advantages, but sometimes they join together to amplify their influence. Further, the interest in getting one’s speech heard varies tremendously. Some citizens are intensely focused on specific policies or particular political ideals. But many, if not most, people remain relatively uninterested in the projects of government.
Protecting citizens’ freedom to use their unequal endowments to pursue their disparate interests required the Framers to keep government out of the job of actively shaping public discourse. And in a free society, what law could succeed in purging elections of the unequal influences of the press, the articulate, the celebrated, the well-connected, or the wealthy? Restricting one group would just magnify the influence of others. The First Amendment, correctly interpreted, tells us not to make such a delusive effort. The danger that politicians will wield their power to preserve their prerogatives is greater than that posed by any of these forms of inequality.
Many complaints about campaigns seized on by progressives to justify restrictions on speech could be addressed without suppressing First Amendment rights. The most widespread complaint is that only the rich get to influence campaigns, whether by giving large sums to Super PACs or by bundling the contributions of wealthy friends and sending them to their favorite candidates; the poor and the middle class, the charge goes, wind up frozen out of politics.
Why not, then, provide an income-adjusted tax credit for political contributions? A tax credit of $25 or $50, phased out as income rose, would encourage millions of citizens of modest means to donate (collectively) large sums to their favorite candidates or political-action committees. Establishing a general campaign-contribution credit wouldn’t target any group’s or individual’s speech in particular, and so would be constitutional under the reasoning of Davis v. FEC.
A further advantage of such a tax credit would be to provide extra money for political campaigns, which, in turn, will help produce a more informed electorate. Yes, contrary to the campaign-finance reformers, we should spend more on politics. Increased campaign spending, research evidence suggests, has made citizens better able to place candidates on an ideological scale and to know what their positions and votes are on issues. In the nineteenth century, Lincoln and Douglas could draw thousands to listen to them at little cost. But in our age of hundreds of cable television channels, the Internet, and other distractions, politicians need greater resources to get their views noticed.
Another concern about money in politics is that big political contributors can win economic favors for themselves. Here, too, rules could prevent such favoritism without harming speech. A good example: ensure competitive bidding for all public contracts, which would restrict the actions of government officials, not the rights of citizens. Congress recently took a step toward constraining the corrupting power of special interests by eliminating earmarks—the tool through which members of Congress would give the green light to projects for their own districts, often regardless of their merit or efficiency.
The better way to make politics more honest and ensure citizens’ equality before the law is to restrict the actions of government officials, not the speech of citizens.
A regime of heavy regulation of political campaigns means that government increasingly shapes social discourse, which inexorably leads to the centralization of power. By contrast, applying ordinary free-speech protections to electoral expression ensures that government will still depend on the back-and-forth of open debate, generated by free citizens in all their variety. Thus, what’s ultimately at stake in the battle over campaign regulation is the First Amendment’s empowerment of civil society over the prerogatives of the state, a virtue—central to our constitutional republic—that liberals once defended heroically.
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