Is the free speech of rich people guaranteed?

McCutcheon 4Yes.  It is.  And it will continue to be guaranteed until one of the five justices who gave that answer drops dead or retires and is replaced by a liberal.  That would be the first and last in the top row and the first three in the second row.

In political science classes—and probably not anywhere else—students ask what kind of sense it makes for modern 21st Century America to be governed by a constitution that took an 18th Century society for granted.  We are going to be dealing with the unhappy part of that answer today, so let’s start with the happy part.  The happy part of the answer is that our Constitution is flexible.  It can be adapted to changing circumstances by being amended by the people or by decisions of the Supreme Court.

At that point, a student who knows more than the rest and is not happy with recent rulingsMcCutcheon 5 says, but what if the justices of the Supreme Court get it wrong?  What if they say that the Constitution says something it really doesn’t say?  That answer to that question, a good enough answer in an introductory political science class, is: That is impossible.  The Constitution actually says whatever the Supreme Court says it says.”

And, of course, that’s the bad part.  Now let’s take a detour.  I think this will help us put matters in perspective.  Here is “the question” as posed in the justly famous Griswold v. Connecticut.  These are all cut and pasted from, the easiest of the court sites to use.

Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?

And here is “the answer,” just an inch or so down the page. “Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations.”  Or, more briefly, “Yes.  The Constitution does protect that right.”

We didn’t have the hyperpartisan sources in 1965 that we have now, but it is not hard to imagine conservatives screaming about the misuse of any very general “right to privacy.”  Does the Constitution protect privacy for bad uses as well as for good uses,” they would ask?  Yes.  It does.

It didn’t take us very long after that to get to Roe v. Wade.  Here is the question: “Does the Constitution embrace a woman’s right to terminate her pregnancy by abortion?”  And here is the answer: “The Court held that a woman’s right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment.”  Or, more briefly, Yes the Constitution does do that.

Conservatives argued against both Griswold and Roe on the grounds that the decision the court made would have bad effects.  The court majority responded, in effect: “Our job is to say what the Constitution requires.  After that, whatever happens, happens.”

What this means is that you will have two perspectives on any seriously contested Supreme Court case.  One will have to do with the logic of the decision or, in some cases, the effects of the decision for the Court.[1]  The other will have to do with the effects on society of one decision or another.

That brings us to McCutcheon v. FCC, which is making headlines these days.  Here is the question: “Is the two-year aggregate campaign contribution limit constitutional under the First Amendment?”  The answer is, No, it is not.

This is an answer that makes conservatives very happy, at least in the short run.  It means that the attempt of the Bipartisan Campaign Reform Act, which tried to find a way to limit the amount of money being spent on politics, was a failure.  Liberals, of course, are unhappy and four of the unhappiest liberals are the four losing justices on the Court’s 5-4 decision.  Justice Breyer was so unhappy he read his entire dissent from the bench and made everyone listen to it.

McCutcheonBut the liberals are unhappy because of the effects they see.  It would be a very rare liberal—I have not yet heard anyone take this view—that the Court got the First Amendment wrong.  If money is speech (Buckley v. Valeo), then the Bipartisan Campaign Reform Act infringes on Shaun McCutcheon’s right to speak freely.  What is it about the guarantees of the First Amendment, much beloved by liberals everywhere, that makes they want to think that in this case, it doesn’t mean what it says.   It says, “Congress shall make no law…abridging the freedom of speech.”[2]

Liberals wail, “How could you do that?”  The court majority responded, in effect: “Our job is to say what the Constitution requires.  After that, whatever happens, happens.”  I hope that looks familiar.  It is just cut and paste from the Griswold decision.

This is what I thought was going to happen.  Here’s what I wrote last October 10 about this case.

Being a liberal, I am bothered by how much influence wealthy people have in our elections.  I don’t like the way they dominate the lobbying of Congress either, but that isn’t today’s topic.  The Supreme Court’s standard—one man, one vote—in Reynolds v. Simms (1964) seems like a good one to me.  “One dollar, one vote,” which is what happens to the political system when unlimited amounts of money may be dumped into it and candidacies bought and sold in front of God and everyone, seems like a bad standard.

And I still feel that way, but you will notice that my objection to it last October had to do McCutcheon 2with the effects it would have and why I, as a liberal, would deplore those effects.  I think the effects of money are so pernicious that I would be happy to see Buckley v. Valeo overturned so that the court said, “Look. There is speech.  That’s protected by the Constitution.  Then there’s money, which is legitimately regulated by the Congress.”

I’m pretty sure the Hobby Lobby case will be coming up next.  Conservatives will say it is about freedom of religion.  Can the government really force individuals to take actions they believe to be wrong?  What does that do the conscientious objection to active service in the armed forces?  I don’t know how the Court will decide that one, but I know this.  Some will argue that the decision ought to take into account the effects the decision will have and the others will argue that only the questions that bear strictly on the logic of the Constitution should be allowed.

And if I’m wrong, you can use my blog to say, “I told you so.”

[1] The Court has argued against reversing the conviction and subsequent sentence of death for a man conclusively proved to be innocent.  The argument is that if the Court started taking cases like that, they would be inundated by this one kind of case and would not be able to do their real work.  This is an “effect argument,” but it is only the effect on the Court’s docket that is being considered.
[2] It has, of course, made a lot of laws restricting speech which the courts have found fully constitutional, but the language is there to be confronted.  You do have to find a reason and the Roberts Court did not find one.

About hessd

Here is all you need to know to follow this blog. I am an old man and I love to think about why we say the things we do. I've taught at the elementary, secondary, collegiate, and doctoral levels. I don't think one is easier than another. They are hard in different ways. I have taught political science for a long time and have practiced politics in and around the Oregon Legislature. I don't think one is easier than another. They are hard in different ways. You'll be seeing a lot about my favorite topics here. There will be religious reflections (I'm a Christian) and political reflections (I'm a Democrat) and a good deal of whimsy. I'm a dilettante.
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