McCutcheon v. FEC: Free Speech for Me or Free Speech for We?

In recent years, the Supreme Court has issued a spate of generally good campaign finance decisions that move steadily closer to treating free speech the way it should be treated — as an individual right. Last week’s decision in McCutcheon v. FEC, which struck down so-called “aggregate” contribution limits, is the latest example. As Chief Justice Roberts noted in his decision for the Court, aggregate limits, which cap the total amount that anyone can give to all candidates and committees during an election season, end up limiting the overall number of candidates one can support. “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.”

This point isn’t hard to grasp. If we have the right to speak out about politics and to support candidates, then surely a limit on the number of candidates we can support or the amounts we can spend on speech violate that right.

So why do so many people — including the four liberal justices on the Supreme Court — insist that campaign finance laws are constitutional? Under what theory can the laws be reconciled with the First Amendment?

The answer, as Justice Breyer illustrates in his dissent in McCutcheon, is the theory that the First Amendment’s primary purpose is to protect “the public interest” over the individual’s rights. In short, the theory is collectivism.

Here’s how Justice Breyer describes his position: “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (Emphasis in original). The “public’s” “collective speech” matters, according to Breyer, when it “can and will influence elected representatives.” That can’t happen, however, when individuals are allowed to support too many politicians or spend too much money on speech, because “[w]here enough money calls the tune, the general public will not be heard.”

But what is this “general public,” what counts as its “collective speech,” and what keeps it from being heard?

Keep in mind that there’s no such thing as “the public,” there are only individuals. Likewise, there’s no such thing as “collective speech,” there’s only the speech — meaning the expressed views — of individuals.

So Justice Breyer’s complaint boils down to this: Some individuals are spending lots of money to convince Americans to vote for the candidates they support, and other individuals — whom the Justice calls the “general public” — don’t like it.

Justice Breyer claims that big spenders are preventing this aggrieved group from being heard. But how? Despite what you hear each election season, no one can use campaign money to “buy” votes. They use it to buy advertising and other campaign activities that attempt to persuade people to vote a certain way.

Contributing money to candidates or spending it on your own doesn’t prevent anyone else from doing the same thing. Consider the many opportunities that every American has to try to influence the views of voters and politicians:

  • They can contribute money directly to politicians.
  • They can give to any of the many groups, like Americans for Prosperity and the Center for American Progress, that speak out about political issues.
  • If they don’t like the views of any existing groups, they can set up their own as many tea party sympathizers have.
  • If they want to have a more direct effect on politicians, they can give money to a group that engages in direct lobbying.
  • If they prefer to go it alone, they can use Facebook, set up a blog or some other sort of website, produce their own videos, or use Twitter as millions of people do.
  • If they prefer something more traditional, they can do what many Americans did during the Obamacare debates and communicate directly with their representatives.
  • If they don’t like any of those options, they can write articles, op-eds and letters to the editor or just wait for one of the hundreds of other publications out there to express their views.

In a free society, you are guaranteed the right to speak, not the right to “be heard” or to have the influence that you would like to have — with politicians, voters, or anyone else. If you want to publish a newspaper or a blog, write a book or become a broadcaster, you have the right to do so. But no one guarantees that you will be articulate or successful or that you will be able to earn or raise the money to fund your effort. If we are going to complain that some people feel they are not being heard when others spend money on political speech, why not complain that they are also unable to compete with The New York Times, The Wall Street Journal, Instapundit, or the Daily Beast?

Justice Breyer washes all of these distinctions and questions away in the great soupy mess of the “public interest.” But who comprises this “public” and why doesn’t it include people who want to spend a lot of money in elections? And who, by the way, is doing all the voting in these elections? The best way to influence a candidate is to vote him into or out of office. Don’t the proponents of campaign finance laws trust voters to make up their own minds?

The answer is that a concept like the “public interest” is not meant to be understood or to refer to anything concrete. Its purpose in this context is to mask the fact that some people want to use the law to silence others — in this case, others who want to spend a lot of money during elections. No one could ever get away with silencing these people on the ground that their views were objectionable. So the would-be censors invoke the magic concept of the “public interest” and claim that those they want to silence are somehow excluded from the “public” and opposed to its “interests.” How many times have you heard that the government must listen to “public opinion” rather than all those selfish, narrow, moneyed “special interests” who are trying to corrupt the system?

But there is no “public.” There are only individuals, and their interests lie in being left free to think and speak as they wish. As Justice Roberts recognized, “[t]he whole point of the First Amendment” is to protect those individual rights. Protecting the “public interest” in “collective speech” flips that purpose on its head.

The writer Nat Hentoff has long used the phrase “free speech for me but not for thee” to describe a person who pretends to support free speech but in fact only supports it for himself. Justice Breyer’s approach is a more sophisticated variation on this theme — and more dangerous given the many people who accept it. Call it, “free speech for we but not for thee.”