Collins & Skover on McCuttcheon and Liberty v. Equality

April 4th, 2014

Kudos to Ron Collins and David Skover on publishing a 246 page book on McCutcheon v. FEC less than 48 hours after it has been released. You can buy an electronic copy on Kindle for only $2.99. I just did. So should you!

In this post I’d like to draw attention to their Epilogue, which traces the evolution of thinking of free speech from the liberalism of Floyd Abrams to the utilitarianism of Stephen Breyer (I wrote about SGB’s collective First Amendment here).

These two leading quotations from Floyd Abrams and Cass Sunstein sum up the divide nicely:

Unhappy with who is speaking these days and how much they are speaking, liberals are promiscuously signing on to a variety of positions that simply ignore the core of First Amendment jurisprudence. —Floyd Abrams (July 21, 1997) A system of unrestricted free speech markets can easily become a bizarre caricature of democratic goals. In these circumstances, well-designed reforms should be understood not as unconstitutional abridgements of the free speech principle but as consistent with the highest aspirations of that principle. —Cass R. Sunstein (July 21, 1997)

At the time of the Pentagon Papers, all liberals were on board with robust free speech.

FOR DECADES, Floyd Abrams was the darling of liberals. He was, after all, the man who, among other things, helped to secure a landmark victory in the 1971 Pentagon Papers case, the case that severely curbed the power of Richard Nixon and like-minded presidents to silence the press. In times past, to be liberal meant being a strong (nearly absolutist) defender of First Amendment rights. The Nation was on board; the ACLU was on board; progressive lawyers and activists were on board, and most liberal groups were on board. But over time things changed. With increasing frequency, the Left moved to the right on this issue, while the Right moved to the left on it.

But when free speech began to “thwart progressive reforms,” the roles reversed.

Sixteen years ago the Nation ran a cover story entitled “Speech and Power.” In the symposium issue, some prominent liberals questioned what was once sacred—out-and-out protection of First Amendment freedoms. In the preface to the symposium, the editors complained that “some of the most powerful actors in our society…are wielding the First Amendment in ways that often seem counter to [or] thwart progressive reforms.” Several liberal contributors to the symposium agreed, including such notable First Amendment scholars as Owen Fiss, C. Edwin Baker, and Cass Sunstein. Other distinguished First Amendment personae took a strikingly different view: “The First Amendment is not broken,” wrote Steven R. Shapiro of the ACLU, “but it may break if we keep trying to fix it.” Kathleen Sullivan, Wendy Kaminer, and, of course, Floyd Abrams agreed.

The authors view a 1996 edition of The Nation as a turning point in time:

The July 21, 1997, issue of the Nation marks as good as any point in time when the liberal community had become openly schizophrenic about its stance on the First Amendment. No longer was being liberal synonymous with being pro–First Amendment. That ambivalence, which later translated into a sort of antipathy, was largely due to the campaign finance and commercial speech rulings of the Burger and Rehnquist Courts. By that measure, the ideological strife can be traced back to Friday, January 30, 1976—the day the Court handed down Buckley v. Valeo. Thus, it took two decades for the transformation to develop. And when Citizens

United v. Federal Election Commission was decided thirteen years after the Nation’s symposium, that transformation from “liberal–First Amendment” to “neo-liberal–First Amendment” was all but complete, at least as to cases involving free speech claims related to money or corporations or to both. “In no First Amendment case that I have been involved in has the position I have articulated been more the subject of more condemnation by most of the press, let alone denounced by a sitting president, than the Citizens United ruling.” That is how Floyd Abrams put it in his book Friend of the Court (2013).

And, the ironies that the right supports the First Amendment more than the left:

If the Supreme Court’s campaign finance rulings have divided the Left, they have just as surely unified the Right when it comes to devotion to the First Amendment. Who would have imagined that the likes of bona fide conservatives such as Rush Limbaugh and George Will would rally behind First Amendment absolutism, at least when in the service of striking down electoral reform laws? Conservative think tanks such as the Heritage Foundation and the libertarian Cato Institute are just as committed in their allegiance to that First Amendment gospel.

The theme is “liberty vs. equality.”

Where one stands on money, politics, and the First Amendment depends largely on whether one leans more to the liberty or equality principle. If we treat political contributions and expenditures as pristine examples of political speech, it is because we value liberty over equality. Then again, if we view such “speech” as corruptive of fundamental principles of democratic government, it is because we value equality over liberty.

Collins, Ronald; Skover, David (2014-04-02). When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (SCOTUS Books-in-Brief) (Kindle Locations 3797-3800). Top Five Books. Kindle Edition.

Buy the book and read the rest.