If the past months’ bickering on whether religious employers should have to pay for personal contraceptive items to which they morally object has taught us anything, it’s that the left is irresponsible with the First Amendment.
On the left, the question orbiting the First Amendment is almost never what is legal, but what is popular or what they ironically call good. Buttressing these campaigns are slogans that act as proxies for real argumentation.
Following the Supreme Court’s recent decision in McCutcheon v. FEC – a thoroughly ordinary free speech decision – bleeding hearts burst forth with their slogans. Berkeley torchbearer Robert Reich was so bothered by the decision (which struck down aggregate limits on individuals’ contributions to candidates and political action committees) that he called for taking a sledgehammer to the Constitution:
“In my view, we must amend the Constitution to establish once and for all that (1) money is not speech under the First Amendment, (2) corporations are not people, and (3) we the people have the right to set limits on how much money individuals and corporations can spend on elections. You with me?”
Reich’s bumper sticker arguments are the bulk of the intellectual ammunition behind the left’s opposition to protecting political spending under the First Amendment. But their slogans are completely hollow.
Money isn’t speech. While this is technically true, it’s legally irrelevant. No, money isn’t speech. Neither is cardboard or a wooden stake. However, no one would argue that the government can ban these materials so you can’t make signs. Is it alright to ban the purchasing of gas to drive to city hall and protest a corrupt mayor because petroleum isn’t speech? Is it acceptable that the government ban political contributions altogether?
Corporations are not people. Again, true as gospel, but irrelevant insofar as McCutcheon is concerned since the issue was the government’s ability to bind how involved in the political process an individual may be. What the left really means is that corporations should not receive constitutional protections. Two-minutes thinking reveals why the Court has unreservedly and repeatedly rejected this argument.
If corporate bodies did not have constitutional protections, they could be shut down when they share a message the government doesn’t like. Without Fourth Amendment protections, law enforcement could storm the Sierra Club and seize hard drives. Without Fifth Amendment guarantees, as Ilya Shapiro points out, “the mayor of New York could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there.” I wonder how Reich would feel having his university, a state-created entity, molested by federal agents determined to silence the banter of its professors.
Our democracy isn’t for sale. Finally we arrive at the core issue. As with the previous catchphrases Reich isn’t alone in this one. Justice Stephen Breyer even stated in his dissent in McCutcheon that the decision “eviscerates our Nation’s campaign finance laws,” leaving our democracy to be bought by the highest bidder.
McCutcheon didn’t change the base giving limits of $2,600 per federal candidate or $5,000 per PAC per year. Nor did it say that corporations and unions can give to candidates. These laws remain unchanged. The issue was whether Shaun McCutcheon, who had already made donations in total of $30,088 to 16 candidates could give additional donations of $1,776 to 12 more candidates, putting him over the aggregate limit. Finding no good reason why he could not, the Court struck down the law.
If the first 16 candidates weren’t corrupted by donations of $2,600 or less, why would the next 12? Why would the next 50? This is the price of democracy – less than $3,000?
Chief Justice John Roberts put it glowingly: “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse…. And it is no response to say that the individual can simply contribute less than the base limits permit: To require one person to contribute at lower levels because he wants to support more candidates or causes is to penalize that individual for ‘robustly exercis[ing]’ his First Amendment rights.”
What, then, is the controversy? If the issue is so minute and specific, why the calls to topple the regime? Because this isn’t about free speech for the left.
Every court ruling defending vigorous political speech makes it harder to regulate the conversation. And the more open and robust the political debate, the more at risk their slogans are of being exposed as fraudulent memes.
The media, Hollywood, academia – these are all huge platforms beloved and dominated by the left. The order to play fair and respect the political voices of others endangers this monopoly on communication. Of course, if the roles were switched, if The New York Times and primetime television were threatened for being too influential and corrupting to the marketplace of ideas, any suggestions at curtailing their voice would be shut down.
In the war of ideas slogans can be used, but they are midget arguments and will certainly lose. Let us at least play fair when others choose to not wield the same weapons.