Last week the Supreme Court overturned existing limits on the total amount of money an individual can donate to political campaigns. (Limits on donations to individual candidates remain in place.) Liberal commentators claim this decision undermines democracy; Conservatives declare it a victory for free speech.
Free speech has not always been seen as an unalloyed good in America. In the early days after the Constitution was ratified, those in office were so offended by what was being said by their opponents that they passed the Alien and Sedition Acts, making it illegal to criticize certain governmental actions.
Fortunately, those laws disappeared after Jefferson became President, but uneasiness with the idea that anyone can say whatever he wants in the political arena remained. During World War I the Wilson Administration prosecuted pacifists, pro-German activists and others seen as either radical or un-patriotic for expressing their views. Few seemed to object at the time.
In 1927, the Supreme Court began to change this. In a concurring opinion that one legal scholar has called “extraordinarly influential,” Justice Brandeis said that freedom of speech was essential to rational political debate. In the 1950’s, the Warren Court went further and included expressions of opinion by cultural radicals. Freedom of speech became a cause that liberal jurists embraced.
After the Watergate scandal, Congress passed laws limiting the amounts of money people could give to political campaigns, as well as the amounts candidates could spend, in order prevent corruption or “the appearance of corruption.” (I’m troubled by that latter phrase. Should we really prohibit things that aren’t wrong just because, to some, they appear to be?)
James Buckley, a candidate for the Senate who was wealthy enough to finance his own campaign, challenged the Watergate limits on personal expenditures. He argued, “Under the First Amendment, I have an unlimited right to free speech. How am I corrupted when I exercise that right by using my own money?”
The Supreme Court sided with Buckley in the landmark case of Buckley v. Valeo in 1976, ruling that his constitutional right of free speech trumped the Watergate laws. He could not donate to other candidates in amounts that would give the appearance of corruption, but he could spend his own money to express his own views in whatever amounts he wanted. The author of that opinion was Justice William Brennan, the court’s most liberal member. At the time, the ACLU thought it was too weak. Freedom of speech had become a dominant liberal value.
No more. In their attacks against the recent decision, which cites Buckley v. Valeo as precedent, liberals are now insisting that one’s free speech rights should decrease as one’s net worth increases. Too much free speech, if it is made possible by money, is, for them, a bad thing.
Justice Breyer’s dissent from the recent decision, about which he felt so passionately that he read it from the bench, makes that clear. He says that “corruption” — by which he means campaign donations — “derails the essential speech-to-government -action tie. Where enough money calls the tune, the general public will not be heard.”
He is saying that the voice of the “general public” is being drowned out by the voices of people who believe the First Amendment gives them the right to say whatever they think, in spite of the fact that they can afford to do it. His quarrel is really not with his current colleagues but with William Brennan, a liberal of the old school who ruled that more, rather than less, political speech is a good thing.
I think the First Amendment says Brennan was right.
Robert Bennett, former U.S. senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah’s Hinckley Institute of Politics.