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The Left’s Limits on Free Speech

Wednesday, April 23, 2014

The contemporary legal and political Left values political free speech only insofar as it leads to collective action.

The recent Supreme Court ruling in McCutcheon v. Federal Election Commission showcases two distinct philosophical approaches to the First Amendment’s protection of the freedom of speech — one individual and one collectivist.

The stark difference between these perspectives explains the sharply divided reactions from the right and the left to the decision, in which the high court struck down “aggregate” limits on campaign contributions.

Ultimately, the approach embraced by the Court, in an opinion authored by Chief Justice John Roberts, comports with the traditional Western understanding of free speech, and will yield positive results.

Prior to the ruling, the Bipartisan Campaign Reform Act of 2002 (also known as “McCain-Feingold”) restricted the amount of money any single person could contribute to an individual candidate, as well as the overall amount of money that person could contribute to all candidates, taken together. A separate limit applied to aggregate donations to political committees.

In the landmark 1976 case Buckley v. Valeo, the Supreme Court, in only a few sentences, upheld the constitutionality of such aggregate limits, noting that:

this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid. (italics added)

The individual limit for the 2013-14 election cycle was $2,600 per candidate, while the aggregate limit was $48,600 to all candidates and $74,600 to political committees, such as the Democratic or Republican parties.

The plaintiff in this case, Shawn McCutcheon, an electrical engineer from Alabama, sought to exceed these limits in the 2011-12 and 2013-14 election cycles. The Republican National Committee joined forces with McCutcheon in filing suit in federal court in the District of Columbia seeking to strike down McCain-Feingold’s aggregate limits. After the court dismissed their complaint, McCutcheon and the RNC appealed directly to the Supreme Court, which sided with them in a controversial and highly publicized 5-4 ruling.

‘There is no right more basic in our democracy than the right to participate in electing our political leaders.'

That ruling eloquently championed a traditional — one might say “originalist” — understanding of the freedom of speech as the cornerstone of individual freedom. As Chief Justice Roberts wrote introducing his opinion, “there is no right more basic in our democracy than the right to participate in electing our political leaders.”

Indeed, Roberts wrote, “if the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.” In other words, to the extent we have to rank the value and importance of different categories of speech, surely political speech would outrank some of the more noxious types of expression the First Amendment nonetheless categorically protects.

Of course, there are constitutional limits even to the most fundamental rights. As the Court found, while Congress may “regulate campaign contributions to protect against corruption or the appearance of corruption,” it “may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”

The FEC failed this balancing test, in the Court’s opinion. While the government claimed that aggregate limits “prevent circumvention of the base limits,” in fact, they “do little, if anything, to address that concern, while seriously restricting participation in the democratic process.”

The Court also found no longer compelling Buckley’s brief and superficial justification for aggregate limits, namely, “to prevent evasion” of the individual limits, because statutes enacted and regulations imposed since 1977, including limits on contributions to political committees, served precisely to plug such loopholes.

Surely political speech would outrank some of the more noxious types of expression the First Amendment nonetheless categorically protects.

Chief Justice Roberts also rejected Buckley’s characterization of the aggregate limits as a “quite modest restraint,” stating instead that “the government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Under those limits, donors may contribute the maximum only to nine candidates, and no more, which is an arbitrary limit not “closely drawn” to the government’s interest in combatting quid-pro-quo corruption.

A Collectivist Dissent

By contrast, Justice Stephen Breyer’s proverbially blistering dissent, in which the other three liberal justices joined, paints the First Amendment in an entirely different light, arguing that the Court’s ruling “eviscerates our Nation’s campaign finance laws.”

In Justice Breyer’s worldview, shared by many progressive jurists and academics, the government’s interest in restricting campaign contributions is nothing less than “an interest rooted in the Constitution and in the First Amendment itself.” Put differently, speech and its limits lie within a self-contained system of social and governmental action.
As Justice Breyer wrote, “speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.”

In other words, the freedom of political speech is instrumental: instead of constituting an expressive or associative right, it serves solely to influence the government. Free speech doesn’t mean the ability to join with like-minded citizens to voice one’s beliefs, but instead it’s socially productive only insofar as it obtains concrete policy outcomes.

It is individual free speech, not the collective version, that undergirds our form of self-government and forms the basis for every other freedom we enjoy.

Similarly, elsewhere in the opinion, Breyer characterizes the purpose of the First Amendment as ensuring that “public opinion could be channeled into effective governmental action.” Not the expression of political beliefs, not the endorsement of shared ideas or candidates espousing them, but only governmental action reflecting those beliefs.

Thus, says Justice Breyer, the problem with political corruption is it “derails the essential speech-to-government-action tie” and “cuts the link between political thought and political action.”

As law professor and Volokh Conspirator David Bernstein notes, Justice Breyer’s worldview enjoys a distinguished liberal pedigree, dating to the turn-of-the-century progressive project of converting the freedom of speech from an individual to a civil liberty. Bernstein writes that Supreme Court Justice Louis Brandeis embodied this approach, “defend[ing] freedom of speech primarily on the instrumental ground that it promoted free and rational public discussion, essential for the American people to govern themselves.”

Justice Breyer himself traced this historical trajectory, citing Brandeis’s opinion in Whitney v. California (1927) that free speech is “essential to effective democracy” and a later justice’s emphasis of the importance of the “maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people.” His dissent concludes by asserting that “the justification for aggregate contribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself.”

This view, unsurprisingly, reflects the mindset of the contemporary legal and political Left, which values political free speech only insofar as it leads to collective action. Its rejection by five justices also explains the venom emitted at the McCutcheon ruling by the leading lights of the mainstream media: editorial pages, law blogs, and activists alike.

Resorting to a collectivist concept of free speech inevitably favors one type of speech over another.

But the Breyer “government action” perspective is also deeply inconsistent with traditional notions of natural rights and individual liberty that animated the development of liberal democracy not only in the United States but throughout the Western world. It is individual free speech, not the collective version, that undergirds our form of self-government and forms the basis for every other freedom we enjoy.

Conversely, treating the First Amendment as the plaything of the government—“the name we give to the things we choose to do together,” in the classic progressive locution—invites bad behavior in the form of regulation that favors certain forms of speech over others.

Indeed, Chief Justice Roberts himself criticized the Breyer view of what Roberts derides as “collective speech” because it can easily lead to the enactment of “laws that restrict free speech” because if that’s what the collective wants, then that’s what it’ll get.

In addition, Roberts wrote, “the degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process.” Resorting to a collectivist concept of free speech inevitably favors one type of speech over another, and empowering government agencies like the FEC to draw such lines tempts the state to choose what type of speech it prefers, an arrangement anathema to American tradition.

Far better, then, to promote, as Chief Justice Roberts did, a full-throated defense of individual liberty as a bulwark against government abuse.

But what about the potential for abuse caused by the absence of aggregate limits? Can’t even individual liberty go too far.

It can indeed, but the Court in McCutcheon did an admirable job outlining far less restrictive alternative means of combatting corruption, such as a restriction on transferring funds among and between candidates and committees; a rule barring “donors who have contributed the current maximum sums from further contributing to political committees that have indicated they will support candidates to whom the donor has already contributed”; and greater disclosure of contributions, which “minimizes the potential for abuse of the campaign finance system.”

Congress and the FEC can and should adopt all of these measures as reasonable restrictions on individual rights. But in McCutcheon, the Supreme Court vindicated those rights in a potent, thoughtful way.
Michael M. Rosen, an attorney and writer in San Diego, is a contributor to The American and a visiting fellow at AEI’s Center for Internet, Communications, and Technology Policy. On April 28, AEI will host "Should anonymous campaign expenditures be allowed? An address by Rep. Chris Van Hollen."

FURTHER READING: Rosen also writes "Sweden's Swing toward a Free Market," "How to Clean Up the Senate's Nuclear Fallout," and "RX for R&D: Repealing the Medical Device Tax." Mark Cantora examines "Beyond Obama's Assault on Free Speech." Ilya Shapiro contributes "Why Citizens United Has Nothing to Do with What Ails American Politics."

Image by Dianna Ingram / Bergman Group

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