The First Amendment is a Mandate for Deregulation

Linda Greenhouse ‘s column yesterday and my post the day before are in agreement on one thing. As she puts it, “The McCutcheon decision is a powerful testament to the extent to which the free speech claim has, in the hands of the current court, become an engine of deregulation.” But she deplores the results. I applaud them.

My reasons for applause are simple: the First Amendment is an engine for the deregulation of political expression. That’s its essence.   It says that “Congress shall make no law .  .  . abridging the freedom of speech.” The Court has made clear for decades that speech is to be interpreted broadly to include all forms of expression, including burning a flag or dancing in the nude. Like most civil libertarians, Ms. Greenhouse is presumably fine with these decision. Is a contribution to a political candidate less a form of expression than those actions? In McCutcheon the Court is just applying neutral principles in applying strict scrutiny to government attempts to interfere with expression.

The First Amendment is a free, not equal speech provision. It is no respecter of persons. It does not matter that rich people are often engaged in this kind of expression or that it unpopular with some people, particularly the incumbents that passed the law limiting donations and may be unseated by challengers who receive too many of them.

Ms. Greenhouse complains that McCutcheon does not follow a few sentences in the famous case of Buckley v. Valeo that upheld the aggregate limits on donations to candidates. But there is no reason that a Court should follow a precedent if it conflicts with settled principles beyond that case, particularly in First Amendment law where neutral principles help guarantee that the Court is not trying to favor one political coalition or another.

Ms. Greenhouse’s other objection is that Chief Justice Roberts narrows the evil that campaign finance regulation seeks to prohibit from “undue influence” to “quid pro quo corruption,” like bribery. But again undue influence is the kind of vague standard that has rightly had no place in First Amendment doctrine. In Cohen v. California, in upholding the right to flaunt a t-shirt with four letter word, the Court famously declared that “One man’s lyric is another’s vulgarity,” reflecting the view that the First Amendment demands that any restrictions must be clear and not subjectively drawn. Undue influence cannot do that kind of work. One man’s undue influence is another’s sensible intervention for the public good. How are we decide what is “undue?” Would undue influence include that of the editorial page of our leading newspaper (the one for which Ms. Greenhouse writes) that almost uniformly endorses the candidates of one of our political parties?

The Constitution protects rights that cannot be taken away by our politicians or simple majorities because they think doing so will lead to the greater good. Progressive thought has been uncomfortable with this basic structure whenever they fear that those rights will interfere with their agenda of controlling the markets and other forms of decentralized ordering. To that end, they read the Contract Clause out of the Constitution and greatly weakened the distribution of powers between the federal and state government that protected individual rights though the ability to exit jurisdictions. With campaign finance reform they are now trying to eviscerate the First Amendment in precisely the realm where it is most needed—politics. We must be grateful that the Roberts Court is standing in their way. It is their most important service to the nation.