The pilot episode of “The West Wing” features fictional progressive President Josiah Bartlet lecturing caricatured Christian leaders on America’s commitment to freedom of expression—no matter how personally distasteful the expression. The scene portrayed a familiar banality: progressives are the First Amendment’s proud defenders. Left-wing intellectuals populating America’s most elite universities join Hollywood liberals as professed sentinels of free expression. In particular, a trio of Harvard law professors supplies the intellectual bedrock of most current First Amendment understanding.
Larry Tribe, Larry Lessig, and Cass Sunstein oversee this important constitutional debate, not only in academia, but public policy, and even popular culture. The best academic journals publish their writings, they regularly testify before Congress, propose Constitutional amendments, rotate through high-level government positions, and author textbooks. Lessig, through an actor, even cameoed “The West Wing.” The paucity of conservative and libertarian faculty leaves progressive First Amendment dogma substantially unchallenged—particularly on complex applications like campaign finance. This lack of ideological competition begets sloppy, flawed, and sometimes outright erroneous analysis.
The professors’ First Amendment view contravenes Founding-era thinking, Supreme Court doctrine, and current social science. Nevertheless, everywhere except a slim Supreme Court majority, they have successfully transformed a government prohibition tethered to natural rights theory into an instrument of ordinary politics infused with egalitarianism.
The First Amendment Limits Government—Right?
Along with four other guarantees, the First Amendment famously states “Congress shall make no law . . . abridging the freedom of speech.” The mandate commands our government—our democracy—to back off citizen speech.
Certainly, the guarantee is not absolute. The Supreme Court has occasionally accepted government meddling where deemed necessary, like immediate incitements to violence, minors in school, prisoners, and public employees. But political speech—what citizens say about government, policy, and candidates—receives an unconditional reprieve. At least that’s what the Roberts Court held in Citizens United v. FEC. “Political speech must prevail against laws that would suppress it, whether by design or inadvertence.”
According to Tribe, however, the Court got it all wrong. The First Amendment isn’t a straightforward limit on government, but a mix of values, including egalitarianism. In his book, “Democracy and the Problem of Free Speech,” Sunstein goes further. The First Amendment should seek the “central constitutional goal of creating a deliberative democracy.” It should ensure “new information and perspectives influence social judgments [and] an appropriate diversity of view.”
Sunstein echoes another Harvard man, the late John Hart Ely and his widely heralded book, “Democracy and Distrust.” To Ely the Constitution principally enables and safeguards politics. Of the First Amendment, he states: “the view that free expression per se, without regard to what it means to the process of government, is our preeminent right has a highly elitist cast.”
The First Amendment Only Protects Speech We Like
But who are the elitists? Tribe displays the elite academy’s hubris by admonishing the Court for interpreting the phrase “Congress shall make no law” to treat “regulation of virtually all forms of speech and all kinds of speakers . . . with the same heavy dose of judicial skepticism.”
The First Amendment offers a classic statement of negative liberty: it enjoins the government from abridging individual freedom. It does not ‘empower’ the individual to achieve some good. It does not give the individual the means to speak or to persuade others. It does not direct the government to use speech . . . to some social end. It does not require ‘good speech’ or ‘polite speech’ or ban ‘negative speech.’
At first blush, the professors’ view seems anodyne. After all, who doesn’t like democracy? Shouldn’t we encourage it? But, practically applied, this puts government, not the people, in charge of what they hear. Even Tribe recognizes this danger: “[I]t would be a mistake to leave judgments about the ‘proper’ distribution of speech to politicians. Arming them with a roving license to level the playing field by silencing or adjusting the volume of disfavored speakers is an invitation to self-serving behavior and, ultimately, tyranny.” But his “slippery slope” concern doesn’t trump his belief that government’s quest for a more egalitarian society should be unhindered by an absolute free-expression guarantee.
The professors’ approach to speech is pure progressivism. Yet they don’t cite Messrs. Roscoe Pound, John Dewey, or Herbert Croley. Instead they augustly wrap their theories in the Founding, especially James Madison. Their favorite reference is Federalist 57: “Who are to be the electors of the Federal Representatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune.” They further promote egalitarianism by invoking the mid-twentieth-century apportionment cases that conceived the constitutional principle ‘one person one vote.’ According to Tribe, this means in the context of legislative elections, each person must have an equal “voice.”
Handicap the Rich
The professors believe government must prevent the wealthy from having equal political rights. Our capitalist system produces rich people so, to be fair, rich people should enjoy less political freedom.
Equal political rights allow the wealthy to corrupt the system by gratuitously spending on advocacy: candidate contributions, Super PACs, nonprofits. Because politicians depend on this support, they provide access, influence, and, ultimately, policy preferences, while the average citizen gets hosed.
Tribe accuses the Court of ignoring “empirical reality” by sanctioning this conduct. Lessig regales raptured audiences on this social ill with flashy PowerPoint presentations. “This many contributed the maximum amount to candidates, that’s that same number of Americans as named ‘Sheldon’”—a reference to the politically active casino mogul. “This many people contributed to Super PACs, that’s the same number as named ‘Adolf,’” and so on. In fact, says Lessig, politicians can’t even run before paying homage to these funders in the “money primary” that precedes the actual primaries.
But the professors are mistaken about the First Amendment’s history, Supreme Court doctrine, social science, and the Founders’ conception of corruption. And it’s not even close.
The Founders Don’t Support Playing Speech Favorites
The First Amendment was built on distrust of government, not egalitarianism. The ratifiers’ main free-speech concern was the press, which was partisan, active, and organized political campaigning. In Federalist 84, Alexander Hamilton argued a First Amendment was unnecessary: “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
The anti-Federalists, responsible for the Bill of Rights, weren’t buying it: “Such men as Milton, Sidney, Locke, Montesquieu, and Trenchard, have thought it essential to the preservation of liberty against the artful and persevering encroachments of those with whom power is trusted. . . I pay some respect to these opinions and wish that the freedom of the press may be previously secured as a constitutional and unalienable right and not left the precarious care of popular privileges which may or may not influence our new rulers.”
Madison seconded that notion when he introduced the First Amendment in Congress: “the people shall not be abridged of their right to speak, write or to publish their sentiments and the freedom of the press, as one of the great bulwarks of liberty shall be inviolable.” The Founders weren’t concerned with rich patrons financing press operations or some pamphleteer drowning out the rest by flooding the streets with ten times more pamphlets. Popular government is what kept them up at night.
And the Supreme Court, even back in the 1970s, wasn’t equating the apportionment cases (equality of votes) with equality of voices. As the first modern campaign-finance case, Buckley v. Valeo stated: “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The belief the First Amendment owed obeisance to the “distorting effects” of political money enjoyed brief tolerability in two cases from 1990 and 2003. The Court overruled this outlier sentiment in Citizens United.
Research Says the Rich Don’t Buy Elections
The corruption arguments fare no better. Campaign spending matters, of course, but the notion the rich simply buy policy outcomes with campaign contributions or Super PAC funding is fanciful. As a well-received Ohio State study last year explained:
There is not one clear and obvious causal mechanism between the campaign funding inputs and legislative outputs – the mechanisms are varied and they change over time . . . It is often said that money in politics is like water – restrict its flow in one place and it will find another outlet . . . if campaign money is a flowing river, traversing over constraints . . . it is only one part of a complex ecosystem of power, influence, and personal relationships that connect electoral and legislative politics.
The American Political Science Association in 2013 agreed: “Most research suggests that there is a weak connection between campaign spending and election outcomes or between sources of campaign funding and roll-call–voting behavior.” Political scientist Seth Masket asserts, “To some extent, the money gives [the rich] access to politicians, which isn’t nothing. But politicians are wary of boldly adopting a wealthy donor’s views . . . The super wealthy are certainly paying a lot of money into the political system these days, but it’s far from clear what they’re getting out of it.”
Rick Hasen, a leading Progressive campaign finance academic, concurs: “In the end, campaign financing and public corruption are separate problems demanding separate solutions . . . The amount of public corruption then does not seem correlated with the basic campaign finance rules.” Two books dissected two successful, hard-fought policy victories, the elimination of the estate tax in 2005 and Toxic Asset Relief Program in 2008. Both concluded that campaign contributions played bit roles.
Bob Bauer, a leading Democrat lawyer, whose eye for empirical reality frequently puts him at loggerheads with reformers, put it thusly: “The challenge for Cass Sunstein and others is to explain how this case [about corruption] can be put forward with evidence that matches up to the theory.” In the congenial world of academic disputes, that is tantamount to a severe rebuke.
The Average Elite Reflects the Average American
Even the Gilens and Page study Lessig and others have cited ad nauseam is much more nuanced than depicted. The study concludes “economic elites” are “policy winners,” but quickly adds: “It turns out, in fact, that the preferences of average citizens are positively and fairly highly correlated, across issues, with the preferences of economic elites . . . Rather often, average citizens and affluent citizens . . . want the same things from government.” Thus average citizens act as free riders, receiving policy preferences without exertion. And Harvard law professors aren’t keen to see average citizens prevail where their preferences do diverge, for instance, on trade restrictions, abortion, and school prayer. (To these could be added gay marriage and immigration, which weren’t prominent when the study data stopped in 2002.)
The founding generation did worry about corruption; however, their fears centered on self-dealing majorities. They saw unconstrained exigencies of “popular government” as an arbitrary threat to the private sphere. Thus Madison quotes Thomas Jefferson in Federalist 48: “One hundred and seventy-three despots would surely be as oppressive as one . . . An elective despotism was not the government we fought for.” In Federalist 45, he assures the populace the new federal government’s powers would be “few and defined.” And in Federalist 10 he proposes a solution to the “superior force of an interested and overbearing majority.”
Even Alexander Hamilton, perhaps the most statist of the Founders, argued against a Bill of Rights in Federalist 84, because “they are not only unnecessary . . . but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
Imposing a Progressive View of the First Amendment
Thus the professors’ brief for an equality-infused First Amendment is built on misread history, non-analogous Supreme Court precedent, and faulty social science. But their theory does have a philosophical basis: the early twentieth-century progressive movement, which tore down and remade American political and legal philosophy in its own image.
The most influential American founders believed in Lockean natural-rights theory. In sum: we are born with certain inalienable rights and responsibilities. This moral code is pre-political. We consent to give up some of our autonomy to create a government that will allow us to pursue our ambitions as we choose; what Locke called “natural freedom.” If government fails to deliver, we can abolish it and start over. We are equal in this “social contract” to the extent law does not unfairly burden or privilege us. Jefferson expressed this view most forcefully in the Declaration of Independence, which he deemed an expression of the “American mind.”
The Constitution also embodied this philosophy. The Founders incorporated several structural barriers to restrain majorities from encroaching into Americans’ pursuit of their natural freedom. These included specifically listing the federal government’s 18 powers in Article I, the preamble, and the Ninth and Tenth Amendments.
Madison expounded the Constitution’s natural-rights foundation when he introduced the Bill of Rights, “[G]overnment is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.” Any government prerogatives beyond those precepts was not proper law and therefore illegitimate. As Roger Pilon explains: “America is a democracy in the most fundamental sense of that idea: authority, or legitimate power, rests ultimately with the people. But the people have no more right to tyrannize each other through democratic government than government itself has to tyrannize the people.”
This view held until the Progressive movement’s ascendency in late nineteenth century. Progressives eventually eviscerated the Constitution’s social contract, overcoming its structural limits to popular government. Doing so transformed government from a vehicle to protect rights to an arbiter and redistributor of private-sector largess through administration and politics.
From Objective Law to Subjective Law
In law, progressives nurtured the legal positivist movement. Positivists reduced all human relations to political choices; therefore, no aspect of life was nonpolitical. As Progressive icon Oliver Wendell Holmes stated, no “brooding omnipresence in the sky” directed law, only human will. Law therefore did nothing more than sanction the desires of those in charge. Like the rest of twentieth-century socialist doctrine, legal positivism originated in Germany and found its fullest application in the Soviet Union. Thus, the 1927 Soviet Supreme Court stated, “Communism means not the victory of socialist law, but the victory of socialism over any law, since with the abolition of classes with antagonistic interests, law will disappear altogether.”
Western traditions of liberty and democracy rebuffed the full effect of legal positivism, but only so much. Through fits and starts American progressives seized the government and enacted their agenda. The final capitulation came in the 1938 Supreme Court case US v. Carolene Products, which endorsed full government control over Americans’ economic lives, while protecting with a “more searching judicial inquiry” only political rights. The politicization of the Constitution was complete; natural freedom was dead and the welfare state replaced the social contract. Henceforth, what mattered most was building a political coalition to grab the biggest slice of taxpayer pie.
This legacy is evident throughout the elite legal academy today. Lessig’s complaint about the money primary, for instance, is indistinguishable from the 1912 Progressive Party platform: “Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people. To destroy this invisible government, to dissolve the unholy alliance between corrupt business and corrupt politics is the first task of the statesmanship of the day.”
Regarding political speech, Tribe follows his forbear Justice Holmes in deriding the libertarian vision of a “neutral baseline, an ‘unregulated’ marketplace of speech” as a “search for something that just isn’t there.” According to Tribe:
The question in constructing a system of campaign finance . . . should not be: ‘What business has government interfering in the unregulated operations of a supposedly “natural” and politically unmediated marketplace of information and ideas?’ Rather, the question should be: Given that the whole edifice is constructed by political choices, which set of choices will best accommodate the conflicting values that our constitutional framework, prominently including the First Amendment, should be understood to embody?
Here again, Tribe is wrong. A natural political-speech marketplace does exist. It is a vast, wild, and unforgiving place. And its success is unparalleled in human history: the Internet. A hands-off governmental policy allowed the Internet to organically grow into an unimpeded idea bazaar. According to Federal Elections Commission Commissioner Lee E. Goodman, the Internet has “placed a printing press in the hands of every citizen in America.” The winners are the daring, the clever, and the novel. Capitalism hasn’t distorted this marketplace but fostered its success.
The question, then, is not “How do we impose values on our political-speech fora?” But, “How do we make all our speech venues more like the Internet?” The Roberts Court has taken baby steps toward that goal, but only that. Those wishing to pool a few hundred dollars together to buy radio ads or spend even less contributing to a candidate must register with the government, like a sex-offender would, so Big Brother can keep tabs.
For all their First Amendment foibles, however, the professors don’t lack pretension. Lessig puts out messiah-complex videos and Tribe writes sentences like: “The political branches should be left with some tools to regulate the alchemy through which economic inequality perpetuates itself by transmutation into political and civic inequality.” Whatever that means, it likely has little to do with the political freedom First Amendment drafters had in mind with the majestic words, “Congress shall make no law.”
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