President Smolla visited our May X class, "Poverty and the Law" at some point during the term. While his lecture involved some "high-end" Constitutional theory, he didn't speak much about the role of poverty and its relationship with the First Amendment. So I decided to do it myself. Here is a part of what I wrote back then, complete with an analysis of Citizens United v. FEC, a
pretty, pretty, pretty controversial case.
President Smolla's explanation of Justice Brennan’s argument about education being inextricably linked to the right to participate in the electoral process and the rights of free speech and association guaranteed by the First Amendment was scholarly and definite, but yet, too short, and not hitting at the underlying thought pattern that Justice Brennan espoused.
This thought pattern is derived from the egalitarian nature of freedom of speech, in which the speech environment is free from censorship and distortion.
This particular pattern of thought is particularly important in many Supreme Court cases, but especially those involving campaign finance and the right to free speech.
Most recently, these ideas were used, or actually not used, in Citizens United v. FEC.
Antonin Scalia, in oral arguments during the case said, “When you say, you can’t spend more than this on your campaign, you’re saying, you can’t say more than this.” However, nowhere in the First Amendment does it say that money equates to speech. The government, in regulating campaign finance, is not disfavoring an idea, or preventing an idea from becoming a part of the public discourse, it is simply arguing that a well-functioning democracy should probably be able to distinguish between market processes of purchase and sale, and political processes of voting and reason giving. The problem with the Citizens United case is that it is allowing disparities of wealth to be translated into disparities in political power. This violates the egalitarian nature of the First Amendment. In fact, that was the argument used in Austin v. Michigan Chamber of Commerce, in which campaign finance laws were upheld. The idea behind this violation is that by allowing corporate aggregations of wealth to over-represent public support for one point of view, the corporations can distort the speech environment.
However, Elena Kagan, currently a Supreme Court Justice, was the Solicitor General for the United States in the Citizens United Case. She was the attorney who represented the State. But in her oral arguments and the Government’s briefs, this line of reasoning was not used. Instead, an anti-corruption rationale was used, based upon the case of McConnell v. FEC. In the McConnell case, it was argued that big money donors would enjoy disproportionate influence on the back end of the political process, and politicians would feel beholden to the donors. This was shot down as a line of reasoning in Citizens United. The majority found that for that to hold, there would have to be some type of proof. This sets up a system in which the only way you can prove corruption in these types of cases is through a contract, in which the two parties have agreed to exchange money for influence. Why would a politician, or donor, for that matter, ever agree to write down an agreement of this sort; verbal agreements are probably the norm in corruption matters, although I don’t exactly have experience with political favors.
Solicitor Kagan and the Government should have predicted the failure of this line of reasoning. The central holding of the Austin case, depending on an antidistortion rationale is an equality argument that rejects the disproportionate amount of speech that unlimited campaign finance has on elections. Not relying on this rationale was an egregious mistake on the part of the State. This rationale is based solely on the idea that a well-functioning democracy should probably be able to distinguish between market processes of purchase and sale and political processes of voting and reason giving.
But we should focus more closely on the decision of Citizens United v. FEC, pushing the Court’s ruling to its own logical conclusion: if spending equals speech, a pure First Amendment argument would suggest that there should be no donation limits at all. Corporations and people should be able to give as much as they want, whenever they want. Certainly, there would be restrictions on spending like there are on speech: Political spending would have limitations pertaining to the harm principle; limiting campaign spending that would go towards hate speech or obscenity. But the thrust of the argument remains – if the court seeks to make campaign spending equal to speech, under the guise of the First Amendment, there should be no campaign donation limits. It is the only way for our Democracy to continue as a Democracy.
This is not an exercise in Swiftian logic; I’m not seeking to propose a radical choice buttressing the idea of egalitarianism in our speech environment. The logical conclusion follows that we either believe in freedom of speech as an egalitarian value in which disparities of wealth do not translate to disparities in political power, or we rid the entire system of campaign finance laws. If the Court is determined to consider campaign donations as speech, then the only laws against campaign donations should be those pertaining to hate speech, obscenity, and the harm principle.
