Floyd Abrams:
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 theCitizens 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. InMcCutcheon, 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 inMcCutcheon, 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.
