The Lessons of McCutcheon: The First Amendment as Thuggery

A note for our readers: the views reflected by the authors do not reflect the views of ASPA.

By David Schultz

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 last month in its McCutcheon v F.E.C. (McCutcheon) decision on 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 law that limits 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 want 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 false sense of equal rights under the law 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 percent 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 the First Amendment free speech clause. While 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 but intimidation.

The 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 declared in his A Theory of Justice, “[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 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 trade-offs 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. Allwright, 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 that allowed corporations to expend unlimited money for political purposes, ignores the social context of 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 some have a right to 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 as a sledgehammer to silence others. The First Amendment free speech clause was never meant to be a bullying tool or an instrument of thuggery. 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. The law is supposed to treat all of us equally, not just in theory but also in fact.

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