Individual Rights vs. Collective Speech in McCutcheon v. Federal Election Commission


The battle over campaign finance regulation features a clash of visions. One side holds that such restrictions clearly violate the First Amendment by limiting the right to speak freely about politics. The other holds that the restrictions are necessary to level the playing field and promote democracy. These competing views were both well represented today in the Supreme Court's ruling on aggregate spending limits in McCutcheon v. Federal Election Commission.

Writing in dissent, for example, Justice Stephen Breyer faulted Chief Justice John Roberts for undercutting democracy by focusing too much on the individual liberty secured by the First Amendment and not enough on the collective good secured by a vigorous system of campaign finance regulations. "The First Amendment advances not only the individual's right to engage in political speech," Breyer argued, "but also the public's interest in preserving a democratic order in which collective speech matters."

In his opinion for the Court, Roberts responded directly to this critique."The degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process," he argued. Moreover, "the dissent's 'collective speech' reflected in laws is of course the will of the majority, and plainly can include laws that restrict free speech. The whole point of the First Amendment is to afford individuals protection against such infringements." Besides, Roberts stressed, "the First Amendment does not protect the government, even when the government purports to act through legislation reflecting 'collective speech.'"

For more on McCutcheon v. F.E.C., see here and here.