The First Amendment and Campaign Finance

04-04-2014

Over at the Volokh Conspiracy, David E. Bernstein argues that Justice Stephen Breyer’s dissent in the Campaign Finance Case (McCutcheon v. Federal Elections Commission) is dangerous. He writes, rightly, that progressives have historically been uneasy with the First Amendment since strong rights are anti-democratic and exert a conservative and limiting impulse on democratic self-government and progressive programs. Thus free speech interferes with hate crimes legislation and stands in the way of attempts to limit offensive speech. And, most recently, free speech has proven the main impediment to regulate the insane amounts of money that are corrupting the political system.

Bernstein asks: “But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?” His rhetorical answer is that the liberal willingness to limit free speech evident in Justice Breyer’s dissent is dangerous:

The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard.  Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.” And given that almost everyone deems it appropriate to regulate the economic marketplace to counter inefficiencies and unfairness, why should the much-less-efficient (because it’s much more costly for an individual to make an error in his economic life than to have a mistaken ideology) marketplace of ideas be exempt from harsh regulation?  In short, once one adopts the Progressive view of freedom of speech as only going so far as to protect the public interest in a well-functioning marketplace of ideas, there is no obvious reason to limit reduced scrutiny of government “public interest” regulation of speech to campaign finance regulations.  Nor is it obvious why the Court should give strict scrutiny to speech restrictions that don’t directly affect the marketplace of ideas, instead of just using a malleable test balancing “speech interests” versus other interests.

It is of course right to worry about placing limits on speech, especially speech that is so clearly political. That is why Justice Robert’s plurality opinion has such straightforward appeal:

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. … 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.

What this means is that as long as campaign finance reform is viewed according to the lens of free speech, those who labor to protect our political system from the corrupting influence of excessive amounts of money will tread a treacherous path. They must, as Justice Breyer does at times in his dissent, argue for a version of free speech that is instrumental, one that is limited by its assumed purpose. Here is Breyer:

Consider at least one reason why the First Amendment protects political speech. 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.

Breyer, like too many of those who would support campaign finance reform, insists on fighting the battle over the meaning of free speech. The problem is that such arguments must speak about limiting speech on rational grounds or suggest that speech is designed to make government better. This raises the specter of the government deciding when speech does and when it does not improve democracy. Some may welcome judges making such difficult judgments—it may be what wise judges actually should do. But having judges decide when speech favors democracy would subject all sorts of offensive or radical speech to the test of whether it was directed to secure government action and whether it invigorated the marketplace of ideas.

The problems with the free speech approach to campaign finance reform have led Lawrence Lessig and Zephyr Teachout to seek a different path. Thus it is worth looking at the responses both of them penned to the McCutcheon decision.

Lessig, writing in the Daily Beast, argues that advocates of reform need to stop talking about free speech and instead focus on corruption:

The only way for the government to win, in other words, was to convince the Court that while corruption certainly includes quid pro quos, it need not be limited to quid pro quos. The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution  to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

Teachout, writing in the Washington Post, argues that we need to stop trying to ban money in our current system of campaign laws and, instead, create a new system, one modeled on examples in Maine, Connecticut, Arizona, Massachusetts, North Carolina, New Mexico, New Jersey, Hawaii and West Virginia, which have all experimented with publicly funded elections:

But the legislative branch has to take some responsibility. Relying on bans is akin to continually passing seat-belt laws that keep getting struck down while never building safe cars. We should take this McCutcheon moment to build a better democracy. The plans are there. Rep. John Sarbanes (D-Md.) has proposed something that would do more than fix flaws. H.R. 20, which he introduced in February, is designed around a belief that federal political campaigns should be directly funded by millions of passionate, but not wealthy, supporters. A proposal in New York would do a similar thing at the state level…. They have learned that they are most effective when every office’s election is publicly funded, so that candidates learn how to raise money by going to the people, and that it is better to give a public match only to in-state individuals and not to PACs or out-of-state donors. Big lobbyists don’t like this because they are used to getting meetings with candidates to whom their clients give money. We’ve also learned that more women and minorities run for office with a public-funding system.

The campaign finance decisions are a disaster for our democracy and are preventing attempts to limit the truly corrosive impact of money throughout our political system. But it is also the case that the decisions are principled when viewed within the rubric of our free speech jurisprudence. Instead of limiting the amount of money in an inevitably corrupt system, it is time to change the system itself. Lessig and Teachout are leading the charge. Their op-eds are your weekend reads. In addition, you can revisit my comments on Teachout’s talk at the Hannah Arendt Center last year, here. And you can watch a recording of Teachout’s speech here.

-RB