Originalism and McCutcheon

Mike Ramsey writes that the opinions of the plurality and Justice Thomas in McCutcheon v. FEC do not employ an originalist methodology. Regarding Justice Thomas’s opinion, Mike writes:

The question is not whether, as a matter of some abstract principle, contributions are or are not speech.  I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one.  But in any event, that isn’t the question an originalist asks.  The question is (or ought to be) whether “the freedom of speech” in the founding era included campaign contributions.  (I’m not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era’s view makes analytic sense to us (or to any individual Justice) should be irrelevant.

Mike is certainly correct that one needs historical evidence and originalist analysis about this matter.  Unfortunately, there is relatively little written on the original meaning of the freedom of speech, with the principal exception in recent years of several pieces by Eugene Volokh.  (I have toyed with writing on the subject, but have not done so as of yet.)  It is difficult for the justices to write originalist opinions without such scholarship.  Thus, they either rely on doctrine, as Chief Justice Roberts’s plurality opinion does, or argue for a change in doctrine, assuming the general doctrinal framework, as Thomas’s concurrence does.

How would one analyze the question from an originalist perspective?  Let’s put aside for now whether there is an enumerated power to support the legislation, an issue I plan to discuss in a future post.  Do the aggregate limitations at issue in McCutcheon abridge the freedom of speech?

This question obviously depends on the meaning of “abridging freedom of speech” at the time of the First Amendment (at least for actions of the federal government).

One immediate issue is that the giving of a gift, that is to be used for purposes of speaking, does not appear to be in the core of freedom of speech.  After all, it is not itself speech.  This is sometimes described as the issue of whether “money is speech.” *

But the fact that a gift for speech purposes can be described as not involving speech does not mean it is not covered by the original meaning of the First Amendment.  It is very likely that a law prohibiting the sale of ink for newsprint or of paper used for writing manuscripts would have been deemed a law “abridging the freedom of speech or the press.”  Similarly, a law that prohibited gifts that were earmarked for speech might very well have been deemed a law that abridged the freedom of speech.

The unconstitutionality of such a law might have been analyzed in two ways.  First, it might have simply been seen as a law “abridging freedom of speech.”  The original meaning of the phrase might have been this broad.

Some support for this conclusion might come from an examination of the laws that existed at the state level at the time.  It appears, although I haven’t done the research, that there were no restrictions on people donating money to others for purposes of speaking (other than laws against bribery).  This is a first step in arguing that such laws abridge freedom of speech.  It is only a first step, rather than the whole argument, because we do not know that the people at the time would have regarded such laws as abridging the right of freedom of speech (as opposed to simply being bad policy).  Still, if such laws did not exist, it would be important, because “the freedom of speech” is often thought to refer to an existing system of rights that existed at the time.  If there were no laws against such donations and if such donations were deemed to be beneficial, this would be some evidence for the unconstitutionality of such laws.

A second possibility might involve what Richard Epstein in his new book, The Classical Liberal Constitution, terms an anti-circumvention principle.  It is possible that there was an original interpretive rule that required interpreters to read prohibitions broadly to prevent circumventions of those prohibitions.  Thus, one might conclude that a law that prohibited gifts for speech purposes was unconstitutional, not because it technically constituted a restriction on speech, but because it was being used to circumvent the right to freedom of speech.  For example, Epstein cites (p. 48) the early case of Brown v. Maryland involving a Maryland tax on importers of goods.  Was this tax forbidden by the constitutional provision prohibiting state taxes on imports?  Epstein argues that it should be under an anti-circumvention principle.  To rely on this interpretive principle, one would of course need evidence that such a principle existed at the time of the Constitution.  But such a principle might have existed, especially given the true meaning of Marshall’s statement that “it is a Constitution we are interpreting” – that one should not expect details (such as circumventions) to be addressed in a brief document.

In the end, I do not mean to argue that laws against contributions that fund speech violate the original meaning.  Rather, I am simply exploring some of the possible ways that one might reach that conclusion.

* In this post, I assume that the aggregate limitation only restricts the giving of money for speech, but that is not clear, since the contributions might support activities which are not properly analyzed as speech.