Two hundred years after independence, Brazil still struggles to reap the full benefits of constitutional liberty.
A Natural Right with Naturally Unequal Consequences
I am in strong agreement with the Derek Muller’s opposition to Progressive ideas to reform laws relating to campaign speech. He is particularly eloquent on why the Framers believed that limiting government was the best route to eliminating political corruption—the opposite of the Progressive agenda, which seeks to expand the state.
We can build on his insight by suggesting new kinds of limitations. For instance, Congress should create rules that impede not only all appropriation earmarks but also other kinds of special interest legislation. That kind of reform would go much further toward dispelling the appearance of corruption in campaign contributions than ratcheting down the amount of these contributions. We should restrict the power of politicians before treading upon the speech rights of citizens.
In this brief essay, I would like to offer additional support in both political theory and our Constitution for Muller’s skepticism about Progressive campaign reform. Indeed, I can think of no issue more important in constitutional law today, because campaign reformers want to permit legislators to regulate electoral speech rather than curbing legislative corruption through the natural rights of speech expressly protected by our Constitution.
The First Amendment has been the cornerstone of liberty in America since its inception. It is a declaration that the state, including the democratic state, cannot restrict speech except for the most compelling reasons. In stark contrast to their hostility to economically related constitutional rights, Progressives have—until recently, anyway— been part of the consensus in favor of protecting this individual right in nearly absolute terms.
Nevertheless it should not surprise us that regulating electoral speech has become such an important Progressive goal, because the essence of Progressivism is an enthusiasm for top-down social ordering and social engineering. Progressives’ interest in free speech has been always instrumental.
When society was tradition-bound (by which I mean constituted by social norms more than by government-imposed norms), free speech was prized: speech can be a powerful aid in undermining traditions by providing reasons against their coherence and beneficence. Ours is not a tradition-bound society any longer, however, but one largely already socially engineered. Free speech is now less useful to Progressives, because it may be used more often in the cause of showing the incoherence and lack of beneficence of social engineering. This change over time has turned free speech, particularly in election season, into one of the last redoubts of liberty against Progressivism and hence one of its primary targets.
Regulation of speech in the conduct of elections highlights three fundamental ways in which Progressivism clashes with the American constitutional order.
First, Progressivism wants to control social norms through government. And government is to be controlled through the administrative state, which is subject only to the check of democratic elections. But free speech is a reservoir of non-democratic influence.
Second, Progressivism sees elections as the central—indeed the only—legitimate method of control of the state, but the political influence of speech is not limited to elections.
Third, Progressivism empowers legislators and bureaucrats, whereas the First Amendment is premised on skepticism about legislators’ and bureaucrats’ motives.
Let me expand on each of these points. First, democracy gives every citizen one vote with equal consequences at the ballot box. The First Amendment gives citizens equal rights against government restraints on their speech, but equal rights naturally lead to unequal influence because of differences in endowment, position, and inclination.
A few people are articulate, but most are not. Some people are wealthy, others own or work for the media or academia, and still others command attention through their own celebrity; but most have none of these advantages. Some people are so intensely interested in specific government projects or particular political ideals that they join together to amplify their influence. But many, if not most, citizens are rationally uninterested in the details of policy and politics and do not care to speak out individually or in groups.
Democracy gives everyone an equal vote, but freedom inevitably leads to unequal voice.
As a result, Progressives want to impose restrictions on speech at election time to create greater equality of influence. There are two problems with this effort, one theoretical and one practical. At the level of theory, the First Amendment guarantees freedom, not equality. Practically speaking, restricting one source of influence—like political advertising through independent expenditures at election time—necessarily aggrandizes other sources of influence, like celebrity or the media. Progressives predominate in the latter precincts, which explains why they are blind to this obvious practical flaw. It not a bug of their plans but a feature.
Second, elections in a democracy reflect a set of specific procedures for selecting representatives and occur at a set place and time. But the civic discourse fostered by the First Amendment is not bounded in place or time. It is that discourse that frames the campaign issues determining which candidate is elected. In particular, the media importantly shapes the agenda for the election long before the campaign period. But even before the media helps set the agenda, it is influenced by political and social theorists. Speech rights naturally embrace the continuity of political and social discourse.
In contrast, a focus on collective ordering through election falsely suggests that the election season is a severable aspect of civic life. That is a reason that Progressives see no contradiction between regulating speech at election time but protecting it at other times and in other spheres.
Finally, Progressivism empowers the government, which can use that authority to impose Progressives’ ideal patterns of society, including the ideal structures for political campaigns. In contrast, the First Amendment is premised on a distrust of legislators, however much they claim to be motivated by political ideals. This premise underscores that, at least where expression is concerned, government agents may be faithful servants not of the public interest, but of their own interests. Note that Progressives are more confident in the possibility of disinterestedness of public servants and legislators.
The single best achievement of Roberts Court jurisprudence has been to protect free speech at election time against Progressive assaults simply by applying long-established First Amendment principles. Since I have discussed this elsewhere, I will not detail the Roberts Court’s many excellent decisions in this regard, but here are a few examples.
In Citizens United (2010), the Roberts Court protected the free speech rights of corporations, just as they have been uniformly protected elsewhere in First Amendment law. In Davis v. FEC (2008), the Court prevented the government from penalizing a wealthy candidate for exercising his speech rights to advocate his own election, just as newspapers have been protected from being penalized for exercising their speech rights.
The innovators in jurisprudence about campaign speech have not been the justices in the majority on the Roberts Court, but the persistent dissenters: Justices Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor, and Elena Kagan. They are willing to subordinate the First Amendment to a Progressive vision of the Constitution, one in which deference is due legislators on free speech, and where free speech is transformed from an individual right into one of the collective polity.
Nowhere has the conflict between Progressivism and the American constitutional order been made clearer than in Justice Breyer’s opinion in McCutcheon v. FEC (2014), where he was joined in dissent by Ginsburg, Sotomayor, and Kagan. In McCutcheon, the Court considered contribution limits—not limits on personal contributions to individual candidates, but limits on total personal contributions in federal elections. The McCain-Feingold Act had imposed a ceiling on total individual contributions of $48,600 for all candidates running for federal office and $74,600 on contributions to political committees, such as those run by political parties.
Writing for a plurality, Chief Justice Roberts invalidated the ceilings. He argued that because all the contributions that McCutcheon made complied with the direct contribution limits pertaining to individual candidates or parties—limits that were designed to prevent corruption or the appearance of corruption—simply multiplying the number of non-corrupting contributions could not itself be corrupt or apparently corrupt.
Justice Breyer’s dissent argued that the majority’s definition of corruption was too narrow and that the aggregate limits helped prevent the evasion of individual limits.
One reason he offered for upholding the regulations was deference to Congress. His contention was that members of Congress run for election and thus were uniquely knowledgeable about the proper regulation of campaigns. But this assertion ignored the interests of members of Congress. Incumbent officeholders have a substantial interest in regulating campaigns so as to protect their incumbency. And given that the First Amendment singles out this right for protection from Congress, at least in part because of distrust of legislators’ benevolence in this area, it is interest rather than knowledge that should guide the standard of review.
In short, deferring to legislative expertise on campaigns turns the First Amendment’s charter of freedom into a delegation to self-interested regulators.
Worse, Justice Breyer argued that First Amendment was not an individual right but at least in part a collective one, because it served to connect representatives with popular sentiment. Thus, restricting disproportionate speech may be justified as a way to more closely align representation with popular sentiment. He even tried to defend that position by making originalist arguments. Examining these, however, provides examples of Progressivism falsifying history in order to graft its principles onto the American Founding.
First, Breyer quoted a snippet from the famous lectures on the Constitution by James Wilson, a member of the Constitutional Convention in 1787 and a justice on the first Supreme Court. The aim was to demonstrate that Wilson believed that the First Amendment “would facilitate a ‘chain of communication between the people and those, to whom they have committed the exercise of the powers of government.’”
But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer implied; instead, it appears in a discussion of the novelty and virtue of representative government as opposed to “monarchical, aristocratical and democratical” forms of government. Rejecting direct democracy, Wilson specifically notes in this very discussion the necessity of a legislator’s freedom to vote at variance with the sentiments of his constituents if he believes it is in their and the nation’s best interests.
Indeed, not only does this phrase “chain of communication” have nothing to do with the First Amendment, but the term “communication” is used here to mean voting, not expression. That is clear from the next sentence in the passage, a sentence which Justice Breyer failed to quote: “This chain may consist of one or more links; but in all cases it should be sufficiently strong and discernible.”
In the context of discussing the nature of electoral representation, Wilson’s meaning is that representation may be direct (one vote between the people and their chosen representatives) or indirect, like the Constitution’s own establishment of the Electoral College (at least two votes between the people and the choice of representative). Justice Breyer appeared not to understand the larger context of his quotation.
He also looked to James Madison for support, noting that Madison states that citizens could use their First Amendment rights to “publicly address their representatives” or “privately advise them.” Of course, this view is hardly a surprise; who could think that citizens could not use their right of free speech in this way? But what is notable is, again, the context of the comments, which again he omitted. Madison is there opposing an amendment to the First Amendment that would have entitled citizens to instruct their representatives on how to vote. Thus, Madison is actually arguing against a provision that would have required representatives to reflect more closely the sentiments of the people.
The larger context certainly does not support, and in fact undermines, Justice Breyer’s point that the government’s representatives may regulate expression to make what they claim is a closer connection between representatives and the people. Justice Breyer also failed to put Madison’s comments in the larger context of the Madisonian understanding of the nature of the First Amendment. We can find elsewhere in Madison’s writings (for example, in his “Essay on Property,” written in 1792) clear and emphatic expressions of his belief that the Amendment reflects a natural right of the individual, not of the collective.
Property, in “its particular application,” means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
Madison goes on:
“In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them. . . . Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” (Emphasis in original.)
We can see that Madison understood free speech as a natural right of the individual that the state is bound to protect, not a collective right for improving the state.
What is at stake in the recent cases about speech at election time is ultimately the relation of individuals to the state. Progressives believe that at election time, rulers should have broad discretion to make up the rules determining who can speak, how much, and when. It is the opposite of the ideal of our original Constitution, which is that of a government resting on the natural rights of free citizens that are protected by the Constitution. The Progressive ideal of speech regulation at election time instead aspires to government of, by, and for the government.