In 1976, the Wall Street Journal criticized the Supreme Court for creating a “half-dead monster” out of the campaign finance laws in a seminal case called Buckley v. Valeo. The Court recognized that limiting the amount of money someone can spend to get a candidate elected necessarily limits the amount of speech they can produce, so it struck down spending limits under the First Amendment. But it split the baby, upholding limits on contributions to candidates as an allegedly minimal intrusion on First Amendment rights.
As the Wall Street Journal had predicted, the campaign finance monster continued to stalk political speech for decades to come. In 2003, the Supreme Court upheld McCain-Feingold, which prevented many groups from even mentioning a candidate near an election.
In recent years, the five conservative Justices on the Court seem to be awakening to the threat these laws pose to First Amendment rights. In Citizens United, the Court struck down a ban on political spending by corporations and unions. In this year’s McCutcheon v. FEC, the Court invalidated a limit on the aggregate amount individuals can give to all politicians. The First Amendment, under the majority’s view in these cases, protects our right to think for ourselves. Some may want to spend their own money on their own speech, others may want to work with advocacy groups, still others may want to support one or more candidates directly. In all events, the decision is theirs to make, not the government’s.
Unfortunately, these cases have only wounded campaign finance laws, and now a number of groups are trying to keep them alive by amending the Constitution. The latest proposal, authored by Sen. Tom Udall (D-NM), was taken up by the Senate Judiciary Committee this week. Udall’s proposal would let Congress and the states limit contributions to candidates and spending by and on behalf of them. To see where this would lead, consider that the law at issue in Citizens United prevented an advocacy group from distributing a film that criticized Hillary Clinton while she was running for president. During oral arguments in the case, the government’s lawyer admitted that the logic of the law would apply to books as well.
Amending the Constitution is a long shot, and this effort will almost definitely fail. But the Supreme Court’s five conservative justices won’t be around forever, and the many people who despise the Court’s recent cases defending political speech are not going to give up. If we really want to kill off the campaign finance monster, we need to drive a stake through the wrong-headed view of free speech at its heart. This view holds freedom of speech not as an inalienable individual right — a right to say what you wish regardless of what others think — but as a kind of privilege that we exercise at the sufferance of “the public,” “society,” or “the people.”
This is the prevailing view among many intellectuals and politicians today. Justice Breyer embraced it in his dissent in the McCutcheon case, joined by his three colleagues on the left. According to Breyer, the First Amendment doesn’t just protect individuals, it also protects the “public’s interest” in having its “collective speech” matter. “Where enough money calls the tune,” according to Justice Breyer, “the general public will not be heard.” Sen. Patrick Leahy (D-VT), chairman of the Judiciary Committee, echoed this view in his statement announcing this week’s hearing: “The Court has repeatedly used the First Amendment — not to protect the voices of all Americans, but as an instrument to amplify the voices of billionaires and corporations.”
This is a fashionable view these days — rich and powerful “special interests” are drowning out the voice of “the public,” so we need campaign finance laws to prevent them from speaking too loudly. But being fashionable doesn’t make the idea sensible or true.
After all, who is this “public” that allegedly isn’t being heard? Does it include those who run and write for the New York Times, the Wall Street Journal, and hundreds of other publications? Broadcasters at MSNBC and Fox News? The thousands of bloggers and millions of Facebook and Twitter users who express themselves every day? Donors to politicians and advocacy groups from all political persuasions? Jaw-boning politicians? Voters? Is the problem that none of these people are being heard or that too many of them are? It’s hard to tell, since “the public” is such a fuzzy term.
The fact is, there’s no such thing as “the public.” “The people,” as an entity, doesn’t exist. Only individuals do. And unless terms like these are used to refer, literally, to every last person who lives in society — which they never are — they end up being used to refer to one group of people who supposedly has the right to use the force of law against the others.
Consider how easy it is to define “the public” as consistent with your ideological agenda. According to Harry Reid and his allies, “the public” doesn’t include the Koch brothers, whom they have attacked repeatedly as “un-American” plutocrats whose “shadowy” network of groups is trying to undermine government as we know it. Nor does it include the Tea Party groups that the IRS targeted in its investigations of nonprofits. But, in the left’s view, “the public” does include unions, environmental groups, and pretty much anyone else who supports more regulation, higher taxes, and more entitlements.
This isn’t to say that the right never plays this game as well. Republicans have certainly supported some campaign finance laws, typically to go after unions. And they invoke the “public interest” often in other areas. But that’s part of the point. The fuzzy notion of the “public interest” can be invoked to justify any restriction on speech. No one ever admits that they really want to silence people with whom they disagree, so they invoke the magic concept of “the public” to do that dirty work for them.
And make no mistake: shutting people up is the point of the campaign finance laws. Yale law professor Owen Fiss summed up the idea succinctly in his 1996 book The Irony of Free Speech. According to Fiss, the government may “have to silence the voices of some in order to hear the voices of others. Sometimes there is simply no other way.” Silencing the loudest voices is the only way to accomplish the goal of making sure “the public” gets heard over individuals.
The inevitable result of campaign finance laws is to restrict any form of speech about politics, because when faced with one restriction, people will find other ways to speak out. Limit direct contributions to candidates, and people will spend money on their own independent ads. Prevent people from saying “vote for” or “vote against” and they will criticize candidates without relying on such “express advocacy.” That’s why the “half-dead monster” the Supreme Court created in Buckley led to McCain-Feingold’s ban on even mentioning candidates. No restrictions on spending for speech can be successful unless all spending is restricted.
We can’t rely on the Supreme Court to prevent this creeping censorship forever. The solution has to come from a popular defense of free speech as a right, not a privilege. That right does not protect our “voices”; it doesn’t guarantee that we will be heard or will have as much “influence” as others. It protects our freedom to speak. Whether we are loud enough, persistent enough, or articulate enough is up to us. Fortunately, in today’s world there are many ways to amplify your voice.
Today’s effort to amend the Constitution will almost definitely fail. But tomorrow’s may not. If you value the right to speak your mind and to try to convince others to change theirs — which is the very heart of a free society — now would be a good time to start making yourself heard.