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Speech Equality’s Crushing Weight: Derek Muller Replies

It was a privilege to participate in this month’s Liberty Law Forum. I am deeply grateful for the opportunity to contribute the lead essay, “The Case for More Money in Politics,” and I am humbled at the thoughtful commentary provided by Professors Rick Hasen and John McGinnis, and by John Samples, all of whose opinions I greatly respect.

At the outset, there is perhaps an irreconcilable difference between what I’ll crudely call the “libertarian” and “Progressive” visions of the First Amendment—the libertarian vision largely distrustful that there are very many interests that could ever permit the government to regulate how we spend money in elections, and the “Progressive” vision that identifies many reasons why the government not only may regulate how we spend money in elections, but perhaps must regulate in the defense of democratic self-governance. More specifically, the libertarian vision would reject the claim that it is the government’s place to equalize political speech, while the Progressive vision finds government regulation to equalize speech essential.

Mr. Samples correctly notes that campaign finance politics begins well before Watergate. Indeed, one could go well before the New Deal to President Teddy Roosevelt’s efforts, or, perhaps slightly more tangentially, “good government” reform arising out of the assassination of President James Garfield.

But there is something perhaps unique, as Mr. Samples notes, about the current Progressive hostility to a “libertarian” vision of the First Amendment. At one time, organizations like the American Civil Liberties Union championed this libertarian vision, or, perhaps more aptly, the liberal vision of the First Amendment, one free of government restraint. But it is only recently that the old, liberal vision has clashed with the new, Progressive vision. This Progressive vision would place us into a much more regulated place in the name of equality.

Professor Hasen rightly notes that there is a “long tradition of political equality” in the United States. Each ballot cast is of equal weight, and each eligible voter receives one vote. But this, I think, may conflate several elements of the political process under the header of “political” in an effort to capture political speech as a part of that “long tradition.” And while some elements of the political process might be regulated with an eye toward equality, others we may leave alone, as a matter of tradition, practicality, and constitutional law.

Requirements for equal ballot strength, for instance, perhaps lie within the structure of our Constitution, including the Guarantee Clause. But it may also be less robust than one imagines—the Supreme Court has upheld electoral systems that give more votes to those with more acres of land in certain limited contexts.

In terms of representational equality (in this instance known as “one person, one vote”), the Senate and the Electoral College undermine any universal notion of equal representation among equal numbers of people. States would receive equal representation in the Senate, not people. And the Electoral College offers no meaningful equal representation to any particular group. Indeed, until 1964, such a principle of representational equality was nowhere found within the text of the Constitution nor the practices of the several States until the Supreme Court created it. We now accept that the Court has required that roughly equal numbers of people must exist across single-member legislative districts—but hardly the stuff of long-standing tradition or of constitutional text.

And that brings us to the notion of equal political speech. The First Amendment’s guarantee is the right to be free of federal laws abridging the freedom of speech—a frank textual point that immediately points away from regulation, unlike other domains of election regulation. It is true that inequality exists among speakers. But what is the peril of a wealthy billionaire speaking loudly? Is it that he may successfully persuade or influence the people? Is that not the entire point of speech? To persuade and influence? Even if it is just one person who cares quite passionately?

To a new series of rhetorical questions, what is the difference between the wealthy billionaire (cited as Sheldon Adelson in Professor Hasen’s piece) funding a candidate’s campaign, and the wealthy billionaire (perhaps Ross Perot) funding his own campaign? (An answer might be to neutralize the speech of both billionaires in the name of equality.) Or Sheldon Adelson the casino magnate speaking, subject to potentially onerous restrictions, against Sheldon Adelson the newspaper owner speaking, subject to an exemption because of our robust commitment to, at least, wealthy media as speakers?

It might be, I suppose, that only some forms of wealth are uniquely problematic to our democratic discourse. But I have not yet been convinced, given the many exceptions we feel compelled to include in our discourse that will naturally lead to some inequality. The better solution, I think, is to avoid the government picking the winners and losers in this equality debate.

And, in fairness, as I have the privilege of the last (exceedingly brief and greatly simplified) word here, Professor Hasen’s thought-provoking new book on the matter, Plutocrats United, is a worthwhile read for a robust defense of the equality interest he espouses. He includes more nuanced solutions than the “ham-handed” proposals that have failed (in my estimation, rather spectacularly) in the past.

And it is perhaps little surprise, then, that I find myself in full agreement with Professor McGinnis. There are naturally unequal consequences to opening up a First Amendment. The voices of those with the greatest audience—through wealth sometimes, but through media corporations, through celebrity status, or through sheer will of creating notoriety—will have a great power to persuade. But that is, I think, the very blessing and curse of a sharp elbows political discourse. We ought to defend the individual right to speak over the “collective right for improving the state.” The Founders’ First Amendment demands as much.

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