a brief word about CJ Roberts’ use of rhetoric in McCutcheon

The Supreme Court issued a decision today in McCutcheon v. Federal Election Comm’n, striking down limits on how much an individual donor can give to the candidates of his choice. Available here. I leave it to others to debate the merits. (I wrote about Citizens United years ago on another blog, and I don’t have much to add to that analysis.) But I wanted to take a moment to call out the Chief Justice for this lame rhetorical move in the majority opinion:

Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.

This is a cheap lawyer’s trick. It’s a fatuous comparison, for two reasons. First, what is “repugnant” here is not a particular political opinion, but the unregulated method of expressing the opinion. In other words, what campaign-finance proponents have created is a content-neutral restriction on a method of political speech. The classic example of a (completely constitutional) content-neutral restriction is the noise ordinance — it doesn’t matter what you’re trying to say; if you drive around your neighborhood shouting it at your neighbors through a PA system at 3 in the morning, the government can cite you for it.

Campaign finance regulation is not quite as content-neutral as a noise ordinance; it applies only to political speech, and political speech is the most protected kind there is. But it’s possible, I think, to craft campaign-finance laws that are as content-neutral as possible — that is, laws that do not discriminate on the basis of point of view or political persuasion — while still achieving their purpose. For example, the First Amendment itself likely forbids certain religious speech in the secular, public-school classroom, even though religious speech is as valuable and as protected, in other circumstances, as political speech. But a ban on teachers proselytizing in the classroom is, within its scope, content-neutral. A public school teacher can’t advocate for evangelical Christianity, Islam, Navajo religion, Scientology, Jonathan Livingston Seagullism, Satan worship, or atheism. So even though the rule regulates a specific type of speech, and a constitutionally valued one, it is content-neutral within that category of speech.

Another way of looking at this: one can think of campaign finance law as essentially like what the FCC does in regulating the airwaves. If the airwaves are unregulated, the person with the most powerful transmitter wins. By limiting the band and power any one person can use, the FCC ensures that there is effectively more speech for everyone. (I.e., the classic rock station, the Christian talk station, and the lefty college channel can all be heard, and no one’s signal can dominate.) Money is essentially the measure of one’s ability to “broadcast” one’s political preferences through advertising, and there is at least a colorable, serious argument that the goal of increased political speech is better met through a regulated than an unregulated broadcast environment.

All of which is just to say that although it’s certainly true that campaign finance laws regulate speech, they don’t regulate the content of speech in the way that the laws at stake in the cases regarding flag-burning, the Phelps church, and the Skokie Nazis did. Making comparisons that elide that difference is beneath a lawyer of Roberts’ education and ability.

This brings me to the second reason Roberts’ comparison is fatuous. It took genuine courage and commitment for lawyers to represent reviled outsiders like the Westboro creeps and the neo-Nazis. To the degree that Chief Justice Roberts is cloaking himself in some of the glory of those brave lawyers, he’s stealing someone else’s valor. It may or may not be that he is making good law for free speech, but what he is not doing is directly standing up for the little guy, for an oppressed minority. He is standing up for, mostly, Sheldon Adelson and Tom Steyer. That’s fine — they’re citizens, too. But let’s not borrow light from the moments when the system stood up for the least among us.

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