Campaign Finance

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

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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.

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  1. “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.”

    That is Breyer telling us he believes the First Amendment doesn’t apply to political speech. If the right has to be balanced with the interest in “preserving a democratic order” whatever that is, then the right doesn’t exist. If what Breyer is saying is true, then you have political free speech right up until the government decides that speech interferes with the democratic order. And that is not “free speech”.

    1. Breyer is pretty terrible and I can’t remember a case he ever got right, dissent, concurrence, or opinion-of-the-court.

      1. Probably some 9-0 decisions. But I wouldnt even guarantee that.

    2. I would bet that if campaign contributions were mandated to not exceed some small amount, say $50 from an individual, that most Democrat campaigns wouldn’t have a pot to piss in. The amount they could raise, when you take out all the tort lawyers and union buddies, would approximate what the Libertarians usually raise.

      1. Yes, but theirs is laundered through “Citizen Groups”, not directly given by one single individual! Somehow every lawyer in a firm manages to come up with the max every time a partner supports someone.

        1. or unions

    3. .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.”

      I wonder which other Amendments this might apply to. Two seems to be gaining traction. Maybe one day four and five can have this sort of respect.

      1. The most appalling thing about Breyer and people like him is that they would strip away 1st Amendment protection of political speech and give it to virtually anything else, sans economic speech of course.

        The whole point of the Amendment was to protect political speech. The people who drafted it would fall over laughing if you told them it was supposed to protect indecent speech. Yet, Progs would have it protect only indecent speech.

        1. You mean they might have had a reason for putting it in with petitioning their government and free assembly? That’s crazy talk, John!

        2. Im still trying to figure out what speech isnt political.

          All speech is political speech.

          “But this detergent!” is political speech.

          1. s/But/Buy/

    4. Breyer is completely wrong. The First Amendment is meant to protect speech most of us don’t like. That’s the only reason to include it, because speech we like doesn’t generally get suppressed, except for naked people and stuff.

      1. The idea that any of the provisions of the BOR endorse or account for some competing “collective right” is frankly insane. Imagine saying that in any other context.

        The right to be free from cruel and unusual punishment not only protects the individual’s right to be free of such but also the public’s interest in preserving a democratic order in which harsh punishments are sometimes necessary.

        WTF? Yet that is exactly what Breyer is doing here. Individual rights are not balanced by the collective interest in infringing on them.

        1. The idea of collective rights is what the government was all about. You know, giving those (LIMITED!!!) powers to the government in the Articles.. There is where the “collective rights” are, in theory, protected. Other than that, individuals are responsible for their own lives and for exercising their own rights.

          1. That is a great way of putting it. We have collective rights in the Constitution, it is called Articles I and II. The BOR is the individual rights that limit the collective ones.

            1. Yes. And those who opposed the Bill of Rights did so on the basis that the limited and enumerated powers (and rights) ceded to the federal government in the Articles were all the limits they needed. Whether they were right about that, we’ll never know, but one does wonder sometimes whether we’d have been better off not listing rights like they were all that we had reserved for ourselves.

              1. They should have been right about that and in practice are to some degree since Courts never seem to find rights without basing them no matter how loosely on something in the BOR.

                In reality, they were wrong since they didn’t account for how insane the country would end up being. If we didn’t have the BOR, we wouldn’t have any rights left. The danger wasn’t “they would only find these right if we put in a BOR”. The danger was “they won’t find any rights if we don’t put in a BOR”.

                1. What’s sad is that the Founders knew and feared the expansion of government. These were smart and wise people, by and large, better than most we produce today, yet their system was flawed.

                  This is one reason I fear the idea of a constitutional convention–how are we going to top what our forebears did? We could, in theory, learn from our mistakes and improve the document, but who thinks the convention wouldn’t be dominated by things like identity and gimme politics?

                  1. I think a convention is the worst idea imaginable. We currently have a document written by the greatest political class since Republican Rome. Replacing it with a document created by the worst political class since Bourbon France is not going to end well.

                    The problem is not the constitution. The problem is the voters and our politicians.

                    1. To be sure, even the original Constitutional Convention was, in a real sense, a coup d’etat. The delegates weren’t sent there with the authority to do what they did.

                      We need a major cultural shift in order to get back to the idea that most things should happen outside of government and that government should be feared, despised, and limited as much as possible.

                    2. A government is only as good as the society that creates it.

                    3. A convention today would produce something closer to a Soviet constitution than what we currently have.

                    4. The problem is not the constitution. The problem is the voters and our politicians.

                      Correct. Although passing the 17th weakened the Constitution’s separation of powers. And passing the 16th gave the federal government the means to go beyond the limits set for it.

                    5. They don’t call them the progressive amendments for nothing.

              2. The 9th took care of the listing problem, but it involves having justices who understand natural law.

                1. Catchalls can be dangerous. Obviously, the courts have simply waived their hands over the last two of the Bill of Rights and made them vanish, with a few small exceptions. How is that anything other than an illegal seizing of power?

                  1. True Pro. Maybe I am just dense having gone to a tenth tier law school and all, but I think that

                    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

                    And

                    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

                    Makes federal economic regulation as verboten as federal criminal statutes. It is always assumed that there is no just thing as general federal law enforcement power. How the hell the courts decided that there was a general federal economic and social regulation power is beyond me.

                    I know “commerce clause”, but that is insane. Reading the commerce clause that way is assuming the drafters created this long document full of compromises and divided powers only to render the entire thing moot by inserting a commerce clause that gave the federal government unlimited power.

                    1. “Congress can make any law that is necessary and proper to regulate commerce and promote the general welfare.”

                      That’s it. The entire Constitution.

                    2. Well, the way I see it, no law is necessary strictly speaking. So the commerce clause should mean that the Feds have no power to make any law.

                      Now I just have to get on the Supreme Court and we’ll be all set.

                    3. Makes federal economic regulation as verboten as federal criminal statutes. It is always assumed that there is no just thing as general federal law enforcement power.

                      The federal law enforcement power was limited to enforcing the powers given in Art. 1, Section 8.

                      To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

                    4. Yes, and federal power in general was limited by the 9th and 10th Amendments. If the federal government can’t pass a generally applicable murder statute, how the hell can it regulate what labels go on food or how cars or built or any of the other thousands of things it does?

                    5. If the federal government can’t pass a generally applicable murder statute, how the hell can it regulate what labels go on food or how cars or built or any of the other thousands of things it does?

                      They can’t. Totally unconstitutional. I was actually agreeing with you that the federal law enforcement power is limited.

                    6. I thought so Ivan. Like I said above, to believe that the Commerce Clause means what the post New Deal courts say it does is to believe the Framers spent a summer negotiating a carefully crafted document that balanced federal and state power only to render the entire construct moot by inserting an all powerful commerce clause. Ah No.

    5. Wait a minute. Is he saying that the 1A gives the government the right to free speech? I mean, that’s what “public” means, right? Kinda like how the 2A allows the National Guard to arm itself?

      1. Except the 1st doesn’t say anything about the public or about people. Congress has no power to restrict the speech or published work of anyone or anything whether it be a person, a robot, a chimpanzee, a corporation or the ghost of Adolph Hitler.

    6. 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

      Well, when you put it that way, Breyer can kiss my ass.

    7. I’d like to see Breyer’s copy of the Constitution. Because my copy contains no qualification of the First Amendment “to preserve a democratic order.”

      And, I’m sorry, but if you go around talking about “order” as the pre-eminent public good, you come off like fucking Nazi.

      1. Yes you do. And I would like to hear Breyer explain how other rights are balanced by the collective right to infringe them.

      2. Someone should tell Breyer that loyalty to the party isn’t what it used to be.

      3. “preserve a democratic order”

        AFAIK democracy and democratic order aren’t even mentioned in the Constitution or the DOI. It’s made up bullshit.

      4. That’s it, I’m boycotting his ice cream.

        1. First Amendment Frazzle, sure, but what about Constitution Crunch?

    8. “That is Breyer telling us he believes the First Amendment doesn’t apply to political speech.”

      And by that he is saying that “free speech” only applies to areas where it does not really matter all that much. Where speech can be dangerous, particularly to the political class it should not be free. That a Justice has turned the purpose of free speech protections on their head is an atrocity.

      1. Exactly. You can have your porn and your video games but you can’t engage in any sort of speech that might anger the government.

        1. It’s called the European model. Stay out of my bedroom, respect my privacy and HEY, when’s dinner?

  2. Thomas laying the smack down…

    Contributions and expenditures are simply “two sides of the same First Amendment coin,” and this Court’s efforts to distinguish the two have produced mere “word games” rather than any cognizable constitutional law principle..

    1. He is dead right. And that is just as big of a smack down of Roberts as it is Breyer. Breyer is appalling but he is at least consistent. Roberts, though less appalling, isn’t even that. Roberts is saying “contributions are protected except when I don’t like them”.

      1. Which defeats the entire purpose of the amendment. Clearly, he thinks the government should have total power, because if you don’t believe in the individual right to political speech, you don’t care much about anything limiting government.

        1. Clearly, he thinks the government should have total power

          Isn’t that a prerequisite for being on the court?

        2. Roberts is a curious case of how you can rationalize doing a lot of really bad things. Roberts thinking is “well the liberals have a point that money is pretty bad but the conservatives have a point when they say money is expression”. So Roberts tries to please both sides by arbitrarily deciding some spending is bad and other spending is good.

          Roberts seems to have little character beyond his desire for acceptance and to please everyone. It is unsurprising but sad that he was able to rise so far.

          I read somewhere that even in law school he made sure all of the writing he did was done with an eye to ensuring an easy confirmation when he finally reached his goal of getting on the court. Anyone that ambitious and driven from such an early age has no business anywhere near power.

          1. Anyone that ambitious and driven from such an early age has no business anywhere near power.

            Yup.

            Its like what I have said about cops. I dont know what the test is, but they should test for something like “craving authority” or some such. Anyone scoring about the mean for the entire population shouldnt be allowed into the police academy.

  3. What’s seriously sad about the dissent is that the provisions being struck down are only 40 years old. This isn’t overturning scripture from the founders that no individual freeholder can contribute more than 10 Spanish dollars to all candidates of the present or future States combined. This is a stupid law from the 70’s. Don’t have a cow, Justice Breyer.

    1. Somehow the country managed to avoid the dark night of fascism for 197 years without this law.

      1. They correctly note that Congress was crooked before this law. They correctly note that Congress is crooked now. They fail to do any thinking after that, apparently.

        1. I’d say Congress is definitely worse today, but that’s likely due to the massive expansion of federal power, which allows for more abuse and acts as a siren call to our worst and dimmest.

          1. Roberts is a curious case of how you can rationalize doing a lot of really bad things. Roberts thinking is “well the liberals have a point that money is pretty bad but the conservatives have a point when they say money is expression”. So Roberts tries to please both sides by arbitrarily deciding some spending is bad and other spending is good.

            Roberts seems to have little character beyond his desire for acceptance and to please everyone. It is unsurprising but sad that he was able to rise so far.

            I read somewhere that even in law school he made sure all of the writing he did was done with an eye to ensuring an easy confirmation when he finally reached his goal of getting on the court. Anyone that ambitious and driven from such an early age has no business anywhere near power.

            1. Principles and politics don’t mix well. And make no mistake, Supreme Court justices are politicians.

  4. “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.”

    Does he have any basis for this assertion whatsoever? Having read the Constitution I don’t recall any passage of the bill of rights referring to a “democratic order in which collective speech matters”. Does Breyer ascribe to the “making this shit up as I go along” school of constitutional analysis?

    Levity aside, though, how can this line of logic be defended? It seems so completely at odds with the plain text of the constitution and the entire history of 1st amendment jurisprudence, yet I’m sure that ostensibly intelligent people like the Dalia Lithwicks and Linda Greenhouses of the world are nodding their heads in agreement with it already.

    What the hell is Breyer drawing from here?

    1. It seems so completely at odds with the plain text of the constitution

      90% of what the federal government does is completely at odds with the plain text of the constitution.

      1. Where do you get this figure of 90%? Seems light to me.

        1. Where do you get this figure of 90%?

          My ass.

          Seems light to me.

          You’re probably right.

    2. He is drawing from the idea that government’s job is to go forth and do good and it is the courts’ job to torture the law in such a way to enable them to do that. Breyer’s entire dissent is one long rationalization for the assertion that “this law is a good thing and makes our country better and therefore must be permissible under the Constitution”. That is really all it is.

      It is certainly not any kind of philosophy that even Breyer would apply to any other amendment. Look at my example above of Breyer’s thinking applied to cruel and unusual punishment to see what I mean.

  5. For once, Roberts gets it right:

    “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.” ”

    ’nuff said.

  6. 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.

    A man who truly doesn’t understand what this country was founded on.

  7. ” “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.” ”

    I had to read that more than once to believe he would say it. What an absolute crock of shit. The public’s interest in preserving a democratic order? In other words, no free speech at all individually or collectively. The collective good is all that matters. Would someone please punch that motherfucker in the mouth…hard?

    1. Well, he is a Democrat from San Francisco, what else did you expect?

    2. Oh. I guess I should have read the comments before banging that out.

      I just came in from mowing, sat down with my water and read that. It pissed me off.

      I do have to ask though, where in the first amendment is ‘preserving democratic order’ mentioned? I ask all future presidents, when you are considering nominees for the court could you please choose someone who has at least read the fucking constitution? Or at least knows what is in it?

      1. Shit, democracy is not even a goal of the Constitution. The closest it gets is the 24th Amendment.

        1. And elections have always been the responsibility of the states.

          That said, Article IV Section 4 clause 1 states

          The United States shall guarantee to every State in this Union a Republican Form of Governmen

          So the feds do have a responsibility to ensure the states have a Republican form of government. But Republican is not the same as Democracy.

  8. ORDER?
    WHat is he, Canadian?

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