Antonin Scalia is by far the best writer on the Supreme Court. In the late December case of the Campaign Reform Act, he emerged as the court’s clearest thinker.
Scalia’s dissenting opinion in McConnell v. FEC [See “Sad Day for Freedom of Speech”] regrettably was smothered by coverage of the majority’s 5-to-4 decision to uphold key provisions of the act . These key provisions reflect a laudable desire to restrain corruption in the electoral process. Splendid! But Scalia suggests that we hold the applause. The restraint will be bought at a heavy price in freedom of speech. Said Scalia, “The juice is not worth the squeeze.”
His opinion began quietly: “This is a sad day for freedom of speech.” He wondered rhetorically how his colleagues — chiefly Justice O’Connor — could have voted to approve a law that restricts significant expression. Within the past four years the court has disapproved relatively inconsequential laws in the field of the First Amendment, but now, in the field of campaign reform, the court “smiles with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.”
“For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations.”
Defenders of the Campaign Reform Act, said Scalia, rely upon three fallacies. The first is that the law does not regulate speech; it regulates money. The majority’s “cavalier attitude” frustrates the fundamental purpose of the First Amendment — the dissemination of ideas. In today’s commercial society, dissemination is supported by money. “The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise. … Where the government singles out money used to fund speech as its legislative object, it is acting against speech as such.”
How much money are we talking about? Scalia cited some figures. In 2000 Americans spent $7.8 billion on tickets to the movies and $18.8 billion on cosmetics and perfume. Campaign spending in that presidential year — (BEGIN ITAL) all (END ITAL) campaign spending, state and federal — amounted to $3.9 billion. “If our democracy is drowning from this much spending, it cannot swim.”
A second fallacy lies in the notion that “pooled money” is not speech entitled to protection. The First Amendment explicitly protects a right of the people to assemble their resources for the redress of grievances.
The majority’s third fallacy is related to the second — that corporations do not enjoy full First Amendment protection. To exclude them from political debate is “effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views.” The National Rifle Association and the American Civil Liberties Union, Scalia noted, were both among 12 appellants opposed to the act.
What about the danger to the political system posed by “amassed wealth”? The answer to this threat, said Scalia, lies in disclosure. “The American people are neither sheep nor fools.” They are fully capable of considering both the substance and the source of political speech. Where is the “corruption”? Granted, campaign contributions engender an obligation that is later paid in the form of greater access to the officeholder. That is the nature of politics — if not indeed human nature — that a winning candidate will tend to favor the same causes as those who support him.
“If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it surely would have said so.”
Scalia concluded on a somber note: “The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. … The federal election campaign laws can be expected to grow more voluminous, more detailed and more complex in the years to come — and always, always, with the objective of reducing the excessive amount of speech.”
Exactly so! In some basic areas of public policy, the problem is not that we hear excessive speech. In many elections, the problem is that we don’t hear enough.