Getting It Right on Political Speech

by James J. Kilpatrick, Human Events Online, 12/18/2003

Antonin Scalia is by far the best writer on the Supreme Court. In the late December case of the Campaign Reform Act, he emerged as the court's clearest thinker. Scalia's dissenting opinion in McConnell v. FEC [see below] regrettably was smothered by coverage of the majority's 5-to-4 decision to uphold key provisions of the act. These key provisions reflect a laudable desire to restrain corruption in the electoral process. Splendid! But Scalia suggests that we hold the applause. The restraint will be bought at a heavy price in freedom of speech. Said Scalia, "The juice is not worth the squeeze."

His opinion began quietly: "This is a sad day for the freedom of speech." He wondered rhetorically how his colleagues—chiefly Justice O'Connor—could have voted to approve a law that restricts significant expression. Within the past four years the court has disapproved relatively inconsequential laws in the field of the First Amendment, but now, in the field of campaign reform, the court "smiles with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations."

Defenders of the Campaign Reform Act, said Scalia, rely upon three fallacies. The first is that the law does not regulate speech; it regulates money. The majority's "cavalier attitude" frustrates the fundamental purpose of the First Amendment—the dissemination of ideas. In today's commercial society, dissemination is supported by money. "The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.... Where the government singles out money used to fund speech as its legislative object, it is acting against speech as such."

How much money are we talking about? Scalia cited some figures. In 2000 Americans spent $7.8 billion on tickets to the movies and $18.8 billion on cosmetics and perfume. Campaign spending in that presidential year—all campaign spending, state and federal—amounted to $3.9 billion. "If our democracy is drowning from this much spending, it cannot swim."

A second fallacy lies in the notion that "pooled money" is not speech entitled to protection. The First Amendment explicitly protects a right of the people to assemble their resources for the redress of grievances.

The majority's third fallacy is related to the second—that corporations do not enjoy full First Amendment protection. To exclude them from political debate is "effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views." The National Rifle Association and the American Civil Liberties Union, Scalia noted, were both among 12 appellants opposed to the act.

What about the danger to the political system posed by "amassed wealth"? The answer to this threat, said Scalia, lies in disclosure. "The American people are neither sheep nor fools." They are fully capable of considering both the substance and the source of political speech. Where is the "corruption"? Granted, campaign contributions engender an obligation that is later paid in the form of greater access to the officeholder. That is the nature of politics—if not indeed human nature—that a winning candidate will tend to favor the same causes as those who support him.

"If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it surely would have said so."

Scalia concluded on a somber note: "The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy.... The federal election campaign laws can be expected to grow more voluminous, more detailed and more complex in the years to come—and always, always, with the objective of reducing the excessive amount of speech."

Exactly so! In some basic areas of public policy, the problem is not that we hear excessive speech. In many elections, the problem is that we don't hear enough.




Here are excerpts from Justice Antonin Scalia's eloquent dissent to the Supreme Court's December 2003 decision in McConnell v. Federal Election Commission, which upheld the McCain-Feingold law's prohibitions on certain forms of political speech.

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This is a sad day for the freedom of speech.

Who could have imagined that the same court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the 1st Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about.

We are governed by Congress, and this legislation prohibits the criticism of members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort....

It was said by congressional proponents of this legislation, with support from the law reviews, that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full 1st Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards.... Until today, however, that view has been categorically rejected by our jurisprudence....

In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. In response to this threat, we have interpreted the 1st Amendment broadly.

Division of labor requires a means of mediating exchange, and in a commercial society, that means is supplied by money. The publisher pays the author for the right to sell his book; it pays its staff who print and assemble the book; it demands payments from booksellers who bring the book to market. This, too, presents opportunities for repression: Instead of regulating the various parties to the enterprise individually, the government can suppress their ability to coordinate by regulating their use of money. What good is the right to print books without a right to buy works from authors? Or the right to publish newspapers without the right to pay deliverymen? The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise....

But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore....

It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer....

We have said that "implicit in the right to engage in activities protected by the 1st Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." That "right to associate... in pursuit" includes the right to pool financial resources.

If it were otherwise, Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnership or corporate form. That sort of restriction would be an obvious violation of the 1st Amendment, and it is incomprehensible why the conclusion should change when what is at issue is the pooling of funds for the most important (and most perennially threatened) category of speech: electoral speech. The principle that such financial association does not enjoy full 1st Amendment protection threatens the existence of all political parties....

The premise of the 1st Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source....

This litigation is about preventing criticism of the government.... The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech.