Originalism and McCutcheon: Part II — Possible Alternative Bases for Protecting Contributions

In my first post, I discussed how one might conclude that the meaning of “abridging the freedom of speech” could cover laws that prohibited or restricted gifts earmarked for purposes of speech. In this post, I want to discuss a couple of alternative ways that one might use to protect such campaign contributions: (1) freedom of association and (2) contributions as the speech of the contributor. While I believe the arguments in my first post provide possible ways of protecting certain campaign contributions under the original meaning of the First Amendment, I am skeptical that either of these alternatives provide strong support for such protection.

The Supreme Court has for at least the last half century recognized a doctrine of freedom of association. People often speak about this doctrine as if it were a distinct right. But an examination of the First Amendment reveals no express right to “freedom of association.” Thus, it is not clear how the First Amendment protects freedom of association.

It is possible that one might be able to derive some kind of freedom of association right from the original meaning of the First Amendment. Some people argue that freedom of association derives from freedom of speech whereas others claim it comes from freedom to petition and assemble. I could imagine an argument for freedom of association that is similar to the argument I made in my first post (for how one might derive protection for contributions for speech purposes). But the point is that deriving this protection would itself require a good deal of work and is therefore unlikely at this point to provide the needed originalist support for constitutionally protecting contributions.

Another possible basis for protecting campaign contributions is to view them as the speech of the contributor. That is, the contribution expresses the contributor’s support for the candidate. I am skeptical of this argument. I used to question whether symbolic conduct was speech, but Eugene Volokh has provided evidence that certain types of symbolic conduct, such as burning people in effigy, constituted speech for purposes of the First Amendment. But that does not mean all conduct did and I doubt that giving money is properly viewed as symbolic.