April 23, 2014

A Smart Piece on McCutcheon

The infamous Facebook friends do have value in their reminding me that other views to mine are extant.

Many of my friends posted a meme from smaterterest-man-in-the-world, Jon Stewart, railing against the eeevil decision in McCutcheon v. FEC All our elections will be bought now. I posted, where it might be heard, that I remain far more worried about incumbent power than the influence of money. And, perhaps, a few sarcastic references to Presidents Perot, Forbes and Romney who bought their way into office.

But, for ThreeSourcers, this piece in the American.com by Michael M. Rosen will resonate. The difference, sez Rosen, is that the Left is protecting a collective, pragmatic right to use speech to affect policy. The right, conversely, protects an individual right of speech qua speech.

Thus, says Justice Breyer, the problem with political corruption is it "derails the essential speech-to-government-action tie" and "cuts the link between political thought and political action."

As law professor and Volokh Conspirator David Bernstein notes, Justice Breyer's worldview enjoys a distinguished liberal pedigree, dating to the turn-of-the-century progressive project of converting the freedom of speech from an individual to a civil liberty. Bernstein writes that Supreme Court Justice Louis Brandeis embodied this approach, "defend[ing] freedom of speech primarily on the instrumental ground that it promoted free and rational public discussion, essential for the American people to govern themselves."

Justice Breyer himself traced this historical trajectory, citing Brandeis's opinion in Whitney v. California (1927) that free speech is "essential to effective democracy" and a later justice’s emphasis of the importance of the "maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people." His dissent concludes by asserting that "the justification for aggregate contribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself."

This view, unsurprisingly, reflects the mindset of the contemporary legal and political Left, which values political free speech only insofar as it leads to collective action. Its rejection by five justices also explains the venom emitted at the McCutcheon ruling by the leading lights of the mainstream media: editorial pages, law blogs, and activists alike.


Thing the whole got read to.

SCOTUS Posted by John Kranz at April 23, 2014 2:30 PM

I haven't "thing the whole read" yet. Does the author also observe that, with our government's current patronage-redistribution-patronage cycle in full bloom, elections are already being bought? Stewart just doesn't seem to care when the buyer is a friend of his.

Posted by: johngalt at April 25, 2014 11:34 AM | What do you think? [1]