The five justices on the Supreme Court (John Roberts, Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito) who consistently hold unconstitutional laws that attempt to set limits on the size of permissible campaign contributions and expenditures have embraced a distorted—and dangerous—conception of the First Amendment. Perversely, their understanding of the First Amendment threatens to undermine the very democracy that the First Amendment was designed by the Framers of our Constitution to preserve.
The incoherent nature of their understanding of the First Amendment is clearly illustrated by the fact that, in his opinion in McCutcheon v. FEC, Chief Justice Roberts expressly invokes as authority for his position the Court’s prior decisions holding unconstitutional laws that ban flag burning, forbid offensive protests near funerals, and prohibited neo-Nazis from marching in Skokie, Illinois. The suggestion that those decisions—bulwarks of our First Amendment jurisprudence—are relevant precedents in cases like Citizens United and McCutcheon ignores a fundamental distinction that lies at the very heart of the First Amendment.
In each of those the decisions Roberts cited, the Supreme Court invalidated a law that prohibited speech because of the message being communicated by the speaker. The government, in effect, was attempting to excise certain points of view from public debate. As the Court has often explained: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Thus, when the government seeks to suppress speech because the message itself is thought to be dangerous, it may not do so unless, at the very least, the speech poses a clear and present danger of grave harm. It was this principle that justified the Court’s decisions in the cases cited by Chief Justice Roberts. Under that standard, the laws at issue in cases like Citizens United and McCutcheon would clearly be unconstitutional.
But the laws at issue in Citizens United and McCutcheon are not directed at any particular message. They apply without regard to whether an individual is a Republican or a Democrat, whether he supports the Affordable Care Act or opposes it, whether she is pro-Israel or pro-Palestinian, whether he endorses or condemns the right to abortion. The campaign finance laws at issue in these cases are what, in First Amendment parlance, are known as content-neutral. Such laws restrict speech without regard to the message conveyed.
Examples of such laws are regulations prohibiting anyone to use loudspeakers in residential neighborhoods after 8:00 in the evening, to hand-out leaflets inside a public bus, or to parade naked down a public street. It is well-established in First Amendment doctrine that content-neutral laws are generally much less threatening to core First Amendment values than laws that seek to suppress particular messages, and they are therefore tested by a more relaxed form of balancing to determine their constitutionality.
Some content-neutral laws have only modest effects on free expression, and they will therefore be upheld as long as they reasonably serve legitimate government interests. A law banning loudspeakers in residential neighborhoods at night is a good example. Other content-neutral laws can be highly restrictive of free speech, and they will therefore be upheld only if they serve important government interests. A law prohibiting all marches and parades on public streets, for example, would be unconstitutional, as would a law banning all newspapers.
With this background, and recognizing the complete inappropriateness of Chief Justice Roberts’s invocation in McCutcheon of the Court’s decisions in the flag burning, offensive funeral protests, and Nazi march cases, we can turn now to the constitutionality of campaign finance regulations.
The argument of the five justices who invariably vote to invalidate campaign finance laws is that limitations on how much money individuals and corporations can spend in the political process are severe restrictions on their freedom of expression. This is so, they maintain, because these laws limit the freedom of corporations and very wealthy individuals to spend as much as they want in their efforts to achieve their goals in the political process. Indeed, this is so, but it does not mean that such limitations are therefore unconstitutional.
Consider, for example, a candidate debate. Suppose the moderator offers to “sell” time to competing candidates, allocating each 10-minute segment in the debate to the candidate who bids the most money. We would regard such a scheme as both idiotic and inappropriate. If the richest of the candidates complained that giving equal time to all of the candidates, and not permitting him to buy more time than the others, was unfair and unconstitutional, we would laugh him out of the building. Put simply, the interest in having a fair and balanced debate clearly justifies denying the rich candidate the “right” to buy more time than his opponents.
Similarly, suppose that a wealthy citizen insists that the constitutional right to vote includes the right of wealthy individuals (and corporations?) to buy as many votes as they wish. She proposes that every person should be guaranteed at least one vote, but that people must then be allowed to purchase additional votes for, say, $100 per vote. Such a proposal would rightly be deemed absurd.
The point of these examples is simply to demonstrate that there is nothing inherently problematic in trying to structure a form of political discourse that denies the wealthiest among us the “right” to buy a disproportionate influence in American politics. To the contrary, such a claim seems so self-evident as to be, well, self-evident, and this is why the vast majority of the American people strongly approve of such limitations.
The plain and simple fact, demonstrated not only by Justice Stephen Breyer’s compelling dissenting opinion in McCutcheon, but also by the fact that the federal campaign finance regulations invalidated in case after case by these five justices were enacted by bipartisan majorities in both houses of Congress and signed into law by several different presidents, including Gerald Ford and George W. Bush, is that these laws serve important and, indeed, compelling government interests.
Yes, such laws limit the ability of the wealthiest among us to control our government. But the public officials who enacted these laws—Republicans and Democrats alike—did so because they understood that such restrictions are necessary to preserve the most fundamental values of a well-functioning democracy. As Chief Justice Charles Evans Hughes observed almost seventy-five years ago, “a fundamental principle of our constitutional system” is the “maintenance of the opportunity for free political discussion to the end that government be responsive to the will of the people.” The will of the wealthiest Americans is most emphatically not “the will of the people.” At a time when billionaires are more and more determined to hand-pick and to control our elected public officials, these regulations are essential to the integrity and legitimacy of American democracy.
That these five justices persist in invalidating these regulations under a perverse and unwarranted interpretation of the First Amendment is, to be blunt, a travesty. These decisions will come to be counted as among the worst decisions in the history of the Supreme Court.