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Monday, April 21, 2014

The Poison Pill: Amending the First Amendment?

Adam Liptak in the New York Times has an interview with retired Justice John Paul Stevens that raises an interesting question:
The occasion for our talk was Justice Stevens’s new book, “Six Amendments: How and Why We Should Change the Constitution.” One of those amendments would address Citizens United, which he wrote was “a giant step in the wrong direction.”

The new amendment would override the First Amendment and allow Congress and the states to impose “reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.”

Or perhaps not. His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates.

Justice Stevens said he would not go that far.

“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”
Justice Stevens's analysis is an example of a cure that is worse than the disease. Do you see what happens here? Trying to end the harm done to the democratic system by the flood of cash into politicians' pockets, Justice Stevens finds himself willing to limit the publication of editorials, books, all in the name of freedom. This is why the Constitution is not about what outcomes we prefer--when you grant yourself a roving commission to reach the "best" outcome from a policy outcome, you can all too easily find yourself abridging freedom in the name of freedom. (Didn't anyone pay attention to the "Sex Wars" of the 1990s?) With great respect to Justice Stevens--and I mean that, he's earned respect--he is, simply wrong.

The problem isn't newspapers, or so-called documentaries like the feeble hatchet job "Hillary" that gave rise to the Court's dreadfully reasoned decision in Citizens United. The problem is money, not speech.

Justice Steven is right to see a continuum between Citizens United and the recent decision in McCutcheon, which, as Justice Stevens summarizes:
Mr. McCutcheon was not trying to participate in electing his own leaders, Justice Stevens said. “The opinion is all about a case where the issue was electing somebody else’s representatives,” he said.

“The opinion has the merit of being faithful to the notion that money is speech and that out-of-district money has the same First Amendment protection as in-district money,” he said. “I think that’s an incorrect view of the law myself, but I do think there’s a consistency between that opinion and what went before.”
Right, so far as Justice Stevens goes, but he then participates in the same analytical error that infect the cases he so correctly denounce--he assumes, as has the Court since Buckley v. Valeo, that the expenditure of money in the form of donations is essentially the same as core speech. (That's a slight oversimplification of Buckley, but quite fair to McCutcheon.) The problem is that underlying assumption.

Look, campaign donations do have some expressive component (at least when publicized)--I back Barack Obama (or Mitt Romney) with my cash, and that, in our society, says something about my level of engagement. So, yeah, campaign contributions are not entirely devoid of constitutional protection. They're actions with an expressive component--a transaction (money flows from my bank account to Obama for America), which in and of itself is not privileged, coupled with the message: my support is not just hot air.

Act + Speech, in other words.

The act can be regulated, as long as the speech part isn't targeted--the message can't be banned, but the harms from the act component--can be targeted in a viewpoint and content neutral way.

That's abstract; let's put some context. Child pornography, even if it does not amount to obscenity, may constitutionally be banned, because of the crimes inherent in its manufacture--the rape and exploitation of a child. But the same narrative, using actors or virtual imagery are constitutionally protected because those crimes are avoided, and only the message is at issue. (I should add that all this doctrinal purity is dancing around the patently unconstitutional exceptions, including the obscenity doctrine, the Court has carved into the First Amendment by raw fiat, but that's another story).

Similarly here, campaign contributions should be regulated in amount, across the board. But not speech. So overrule Buckley and McCutcheon, and if the Court won't do that, the only amendment that is needed should be as follows: "The donation of funds or credit shall be treated as conduct with an expressive component." Period. If that's not enough, we have the answer to Franklin's challenge--a Republic--if you can keep it. No guarantees, after all.

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