[EL] My latest blog/The Lessons of McCutcheon: The First Amendment as Thuggery

[Schultz, David A.]

Hi all:

One more blog of mine on McCutcheon:

The Lessons of McCutcheon: The First Amendment as Thuggery

    Since when did the First Amendment become a tool of thuggery to
suppress speech rather than enhance it?  This is essentially what the
Roberts Supreme Court did in the recent McCutcheon v F.E.C.  decision
striking down aggregate political contribution limits.
    At the core of the McCutcheon  is the argument that all individuals
have a right to expend unlimited money for political purposes.  Because of
that right, federal laws that overall limit individuals to contributing
approximately $123,000 per year to candidates and political parties
violated  their right to free speech.  Who knew that such a cap was so
suppressive and chilling of  free speech? At least this is what the Roberts
Court wants us to believe.  We should all rejoice in our new found freedom
to spend as much as we want to affect the political process.  Yes, now the
rich  and poor equally have the right to spend more than $123,000 per year
for political purposes much in the same way that writer Anatole France once
said that the rich and poor were equally free to sleep under the bridge.
    That is false sense of equal rights is one of several points that the
Roberts Court misses in McCutcheon.  The rich and poor may equally have the
same right to spend unlimited amounts of money, but the reality is that
only the rich shall be able to use this right.  For the other 99.9% of the
population, McCutcheon has nothing to do with rights.  It does not mean
that your tired, your poor, your huddled masses yearning to breathe free,
will spend more.  No, it only means a few will do so because they will be
able to.   This is what defenders of  McCutcheon either fail to see, or
which they see clearly and embrace the decision because of its implications
to favor their views.
    The shallowness of the McCutcheon argument lies in a misguided notion
of what the First Amendment free speech clause is supposed to be about.
While of course John Stuart Mill wrote long after the Founding Fathers
penned the First Amendment, his On Liberty remains perhaps the single best
defense of free speech.  Free speech is necessary not simply to express
ourselves, but to gather and circulate the information necessary to make
informed political choices and to make democracy and the search for truth
possible. Free speech is not a silencing tool but an invitation to
dialogue, a declaration that were only one side to speak then it would
shield dogma and invite censorship. As Mill stated: "There can be no fair
discussion of the question of the usefulness (of an idea) when an argument
so vital may be employed on one side, but not on the other."  It takes at
least two to have a conversation; one person shouting at another  is not
free speech it is intimidation.
    The First Amendment free speech clause is not meant to be a right for
one or the few but for all.  It is recognition that in a society all of us
have a right to speak, and to do that, as in any social situation, there
are rules of communication that make a conversation possible.  There is no
way that a rule that says all of us have an unlimited right to speak is
viable; at some point one has to understand that the First Amendment rights
of some have to be read or understood in light of the First Amendment
rights of others. The right to free speech cannot be interpreted in such a
way that  the rights of a few can suppress the free speech rights of
others.  As philosopher John Rawls once declared:  "[E]ach person is to
have an equal right to the most extensive basic liberty compatible with a
similar liberty for others." Rights to free speech must be read within a
social context of like liberty for all.  McCutcheon and its defenders fail
to recognize this principle.
    At one time the Supreme Court recognized it.  In cases such as  Burson
v Freeman the Court was confronted with conflicting First Amendment rights
when it ruled that states could impose a ban on political advertising
within one hundred feet of a polling place.  Here there were contending
free speech rights-to vote and to engage in political advertising-and it
was impossible to allow for  both in absolutist fashion.  To allow an
absolutist position for both rights probably would have meant neither were
possible.  Contending rights of differing individuals have to read or
understand in ways that respect the rights of both.  Similar tradeoffs or
balancing of rights were made in Red Lion Broadcasting v. Federal
Communication Commission where the fairness doctrine was upheld, ruling
that the free speech rights of broadcasters must be balanced against the
first Amendment rights of the public.  The same was true in Smith v.
Alwright, where the Court ruled that the First Amendment associational
rights of parties had to be balanced against the rights of individuals to
participate in politics.
    McCutcheon, along with the 2010 Citizens United v. Federal Election
Commission decision allowing corporations to expend unlimited money for
political purposes, ignores the social context for free speech rights.
These decisions privilege the rights of the few at the expense of others.
Even worse, they assume that everyone has an unlimited right to speak and
that this speech includes the expenditure of money.  It forgets an old
adage many of us learned when we were growing up-My right to extend my arm
goes no further that your face.
    McCutcheon crabbed absolutism seems to assume that everyone has a right
to spend unlimited amounts of money, even if that means that some have a
right to drown out of suppress the free speech rights of others.  That is
what McCutcheon will do.  Its impact will be to give some a  megaphone to
speak, serving a a sledgehammer to silence others.  The First Amendment
free speech clause was never meant to be a bullying tool or an instrument
of thuggery but that is what the Roberts Court did in deciding that the
rich and poor equally have the right to spend unlimited amounts of money
for political purposes.

-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013
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