A First Amendment Litmus Test?

The phrase “First Amendment thought police” may seem a contradiction in terms, but that didn’t stop Sen. Mitch McConnell last week from fulminating on the Senate floor against then-Solicitor General Elena Kagan’s defense of the McCain-Feingold campaign finance law in the Citizens United case earlier this year. McConnell questions Kagan’s suitability for the Court based on her arguments defending the constitutionality of the statute – which, after all, a majority of the Supreme Court had upheld as recently as 2003, and which four justices of the Supreme Court voted to uphold again in Citizens United.

McConnell twists the government’s position, pretending that Citizens United was about the government’s ability to ban movies, books, pamphlets “just because it doesn’t like the speaker and doesn’t like the speech.” This fantasy of censorship has no relation to reality – Citizens United wasn’t about who or what the government “liked” or didn’t like – it was instead about what bank account could be used to pay for a campaign communication. Specifically, the question at issue in Citizens United was whether Congress could require a corporation to pay for electioneering communications through a segregated fund – or PAC – rather than from its general treasury fund. The video at issue in Citizens United – a 90 minute attack ad against Hillary Clinton – would not have fallen under the FEC’s regulatory authority had it been funded by an individual citizen, a group of citizens. Only because some of the money for the video came from a business corporation did the ad become subject to regulation.

But it’s better press to talk about book bans than bank accounts. In McConnell’s skewed view, any regulation is tantamount to a ban, any steps taken to keep people – rather than corporations -at the center of our politics are equivalent to censorship. This is the same slippery-slope anti-government rhetoric that equates taxation with slavery.

But underlying McConnell’s predictable – if depressing – rhetoric is a seed that has been germinating for the past 30 years but only reached fruition with Citizens United – the equation of money and speech. In the 1976 case Buckley v. Valeo, the Buckley Court infamously held campaign expenditure ceilings unconstitutional, reasoning that restricting campaign spending reduces the “quantity” of speech that can be disseminated. But the Buckley Court stopped short of fully equating money with speech, as did subsequent courts over the next 30-plus years. As former Chief Justice William Rehnquist once wrote, to treat corporate spending as the First Amendment equivalent of the speech of individuals is “to confuse metaphor with reality.”

But in Citizens United, the Court treated speech as the simple equivalent of money, full stop. Justice Kennedy’s decision was replete with sweeping truisms about the centrality of free speech to self-governing democracy. Never did Kennedy’s opinion admit that these truisms might apply differently – or not at all – when the regulation of spending, rather than speech, is at stake.

But if speech is equated with money, in constitutional terms, then all kinds of regulations become “constitutionalized” in First Amendment terms. If speech is money, then does the business judgment rule – which requires corporate spending to advance the best interests of the corporation – become a First Amendment problem? Do quarterly SEC filings represent “compelled speech”?

As Prof. Deborah Hellman recently argued at the Brennan Center’s symposium, “Money, Politics & the Constitution: Building a New Jurisprudence,” the fact that money may facilitate the exercise of a constitutional right does not mean one has the constitutional right to spend money to exercise that right. The right to vote does not mean that one has the right to buy or sell a vote. The right to have sex does not entail the right to buy sex. In some contexts, spending money may have some expressive value – for example, giving $10 to “Fight the Smears.” But other forms of expressive conduct are commonly regulated, as Justice Stevens often pointed out.

Constitutional challenges – not only to campaign finance laws, but to health care reform, the financial overhaul, and other governmental initiatives – are filed each day by opponents of federal regulation. In such a climate, the Court’s apparent susceptibility to the bumper-sticker simplification “Money = Speech” poses a threat to our democratic system. Hopefully, Justice Stevens’ successor can aid in stopping, or even reversing, our slide down this disastrous slope.