By Floyd Adams
The McCutcheon v. FEC ruling
and the identity of the Justices aligned in it on one side or the other
should surely have come as no surprise to Court-watchers. The case is
both an easier one than Citizens United and
a far less far-reaching one, both in theory and potential political
impact. There was never any reason to expect those members of the Court
who joined the Citizens United majority to vote to sustain a
provision of law that, at least on some readings, would have trouble
passing a reasonable basis test – i.e., if a $2600 contribution
by Shaun McCutcheon to sixteen candidates did not corrupt them, why
would similar contributions corrupt the twelve other candidates he
wished to support?
What seems to me most surprising and disturbing about the ruling,
though, is not to be found in the predictably much assaulted (and I
believe sound) majority opinion but in the dissent. For there, for the
first time, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena
Kagan join with Justice Stephen Breyer’s minimization of
long-recognized and well-established First Amendment interests by
maintaining that, after all, the side seeking to overcome
those interests had at least as strong a First Amendment argument on its
side. In McCutcheon, that argument is based on the notion that
the avoidance of whatever is defined as “corruption” strengthens the
First Amendment. With the First Amendment thus placed in some sort of
supposed equipoise (since “First Amendment interests lie on both sides
of the legal equation”) the case becomes an easy one. It is, in my
view, but in a different direction.
In his book Active Liberty: Interpreting Our Democratic Constitution (2006),
Justice Breyer offered an overview of the First Amendment which posited
that its primary purpose was not to protect speech from government
control or limitation but “to encourage the exchange of information and
ideas necessary for citizens themselves to shape that ‘public opinion
which is the final source of government in a democratic state.’” A
statute limiting independent spending on political speech is thus
defensible against a First Amendment challenge and indeed serves First
Amendment interests since it “facilitate[s] a conversation among
ordinary citizens that will encourage their informed participation.”
In his dissenting opinion in McCutcheon, Breyer takes that a step
further, concluding that “the First Amendment advances not only the
individual’s right to engage in political speech, but also the public’s
interest in preserving a democratic order in which collective speech matters.”
(emphasis in original). The First Amendment, he maintains, must be
understood as promoting “a government where the laws reflect the very
thoughts, views, ideas and sentiments, the expression of which the First
Amendment protects.”
These statements are not totally at odds with the First Amendment.
But they are deeply disquieting. It is true that by restricting the
ability of the government to control, let alone limit, speech, the First
Amendment surely assists in preserving “democratic order.” But giving
the government, in the name of advancing democracy, significant power to
limit the amount of speech about who to vote for risks much that the
First Amendment was adopted to protect. And what, after all, does
Justice Breyer mean by “collective speech?” In his opinion, Chief
Justice John Roberts persuasively objects to relying on the “generalized
conception of the public good” set forth in the Breyer dissent, taking
issue with the very notion of “collective speech” as being contrary to
“the whole point of the First Amendment” of not permitting the will of
the majority to carry the day by preventing speech of which it
disapproved.
It is difficult to read the McCutcheon dissent without
recalling two of the Court’s landmark First Amendment rulings of the
past. Both were unanimous. Both would be at risk if the First Amendment
were somehow viewed as anything but a limitation on the government’s
power to limit speech, even in the supposed service of “preserving
democratic order,” vindicating “collective speech,” or the like.
Consider Mills v. Alabama,
in which the Court held unconstitutional an Alabama law that barred, on
election day only, the solicitation of votes “in support of or in
opposition to any proposition that is being voted on” and was the basis
for the conviction of a newspaper editor for writing an editorial urging
the adoption of a proposal to change the form of city government.
Passed at a time when most communities had, at most, one newspaper, its
constitutionality was sustained by the Alabama Supreme Court on the
ground that the law “protects the public from confusive[sic]
last-minute charges and countercharges” on election day, “when as a
practical matter, because of lack of time, such matters cannot be
answered or their truth determined until after the election is over.”
Put differently, in the service of assuring “informed participation” of
the public, Alabama sought to protect it from the dangers of unfettered,
unanswerable last-minute speech. Of course, Mills held the
statute unconstitutional, regardless of its supposedly pro-democratic
intent of protecting a potentially confused and misled public.
Even more directly threatened by applying the core theory of the dissent would be the Court’s ruling in Miami Herald v. Tornillo.
What, after all, is more democratic, more consistent with public
participation in the creation of public policy, than a right-of-reply
statute which assures that if a candidate was attacked on the basis of
his personal character or official record by a newspaper, that he should
have the chance to respond? The Florida statute at issue had been
passed when newspapers, often solitary ones in their communities,
reigned supreme as the dispensers of information to the public.
Advocates of the law urged, in language the McCutcheon dissent
might well find congenial, that (as Chief Justice Warren Burger put it)
as a result of a communications revolution, “the power to inform the
American people and shape public opinion” rested in the hands of a few
wealthy corporations. Why not, then, advance the cause of democracy by
providing attacked candidates with a right to respond? Once again, and
notwithstanding the plausibility of the factual basis asserted for the
statute, the Court unanimously struck it down on the ground the
governmental coercion in this area was inconsistent with the First
Amendment.
Plainly, one’s view of McCutcheon may be influenced by one’s
expectations as to its likely impact on our political system. That
Republicans celebrated it and Democrats denounced it says much about who
expects to profit from it and nothing about its First Amendment
implications. From the latter perspective, the ruling is a victory but
one which cannot but raise concern about the future. The division
between the Roberts and Breyer opinions is vast. Of course, jurists on
both sides of the divide care about both freedom of speech and
democracy. But at least on this issue, only one side believes that the
best protection for democracy is more rather than less speech. That is a
disturbing and recurring reality.
Floyd Abrams is a member of the Executive Committee and Cahill
Gordon & Reindel LLP’s litigation practice group. Among other First
Amendment cases, he prevailed in his argument before the Supreme Court
on behalf of Senator Mitch McConnell as amicus curiae, defending the rights of corporations and unions to speak publicly about politics and elections in Citizens United v. Federal Election Commission (2010) and was co-counsel in the Pentagon Papers Case (1971), in which his arguments and those of Professor Alex Bickel also prevailed. He is the author of Friend of the Court: On the Front Lines with the First Amendment (2013) and Speaking Freely: Trials of the First Amendment (2006).
No comments:
Post a Comment