Protecting the First Amendment

“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, … the more easily they will concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.” — James Madison, Federalist No. 10.

Freedom of speech is such a dirty and messy business. It means that we must endure drivel of the stupid, the hate of the evil, and the blather of the ill-informed, as well as learn from the learned and bask the beauty of the poet. Sometimes the value of this tradeoff is not appreciated, but it remains the foundation of stable democracy. A broadly recognized discipline of tolerance for the speech of others is a necessary component for stable rule by the consent of the governed.

At the time of the American Revolution, the long-term stability of democracies was an open question. Relying on the experience of the Greeks, many believed that democracies could only be successful in relatively small communities where the values and interests could be homogeneous.

The genius of the American Founding was that it turned this notion exactly on its head. The greatest danger is tyranny. The Founders understood that large expansive democracies are more stable, because a diversity of interests insures that no single faction or interest could assume sole control. The Founders also understood that one could not rely on good motives. Freedom, especially freedom of speech and the press, and the structure of government outlined in the Constitution allow ambition to counter ambition.

It is, therefore, with particularly poignancy that the end of this election cycle marks the beginning of the application of the “Bipartisan Campaign Reform Act of 2002,” the most ambitious attempt yet to regulate political expression. Champion of free speech, Senator Mitch McConnell is suing the Federal Election Commission over the constitutionality of the act. At this point, the case rests with the United States District Court for the District of Columbia. The case, however, will likely find its way the US Supreme Court for final adjudication.

This act is particular egregious in that it limits independent groups from running political adds within 60 days of an election — a time when political speech is perhaps most valuable and most deserving of broad protection.

Recent efforts at campaign finance reform are an abdication of the belief that speech is self-regulating. It posits a belief that there is such a thing too much speech, that Americans are unable to make decisions unless the government properly rations political speech. Campaign finance reformers are not, as they pretend be, populists. They do not exhibit the necessary faith in regular Americans.

The bromide used to defend campaign finance reform — reform that constrains the dollars that are spent or donated to campaigns — is that “money is not speech.” The phrase is easy to remember. It has only four words, which makes it simple to thoughtlessly and endlessly repeat. However, as with many rights, the right to use economic resources to speak and allow the speech to be heard by many is encompassed in the freedom of speech.

“Money is not freedom of the press,” but surely it would be unconstitutional to limit the amount of money a newspaper could use in the production of the paper, even if the editorial content is ignored. “Money is not freedom of religion,” but surely it would be unconstitutional to limit the amount of money that individuals could donate to support their churches, even if the nature of the religious observances were ignored. “Money is not the right to counsel,” but surely it would be unconstitutional for the government to limit the amount of money a person could pay his defense counsel.

The Cato Institute and the Institute for Justice are Libertarian advocacy groups that have filed a brief of amici curiae in the District Court case. Their brief offers a more expansive argument that even disclosure requirements on the part of individuals for donations constitute a violation of freedom of association. Disclosure can have a chilling effect on speech. Perhaps you do not want you neighbors or your boss knowing to whom you contributed. However, if you venture to the Federal Election Commission on the web today you can do a name search to find to whom your neighbor, your friend, or your employee made political contributions.

The argument against compelled disclosure relies heavily on the case of NAACP v. Alabama. In that 1958 case, the state of Alabama tried to compel that National Association for the Advancement of Colored People (NAACP) to reveal its membership. It is obvious that having the state of Alabama know you were member of the NAACP in 1958 would have been intimidating. The US Supreme Court ruled that anonymity of association is a protected right:

“Petitioner, [the NAACP], has a right to assert on behalf of its members a claim that they are entitled under the Federal Constitution to be protected from being compelled by the State to disclose their affiliation with the Association.”

It is too much to hope for that the present US Supreme Court would be bold enough to recognize that this precedent allows donors to contribute anonymously (anonymous to the recipient as well) to political campaigns and to advocacy groups. It would probably be salutary if they just recognized that expenditures of independent advocacy groups are protected under the First Amendment, even within 60 days of an election.

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