Symposium: Opposing more speech — a disturbing & recurring reality

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).