The First Amendment, Revisited

The Supreme Court’s recent decision in McCutcheon v. Federal Election Commission has provoked a lot of critical comment. Much of the criticism has been directed at the majority opinion, which struck down aggregate limits restricting how much money a donor may contribute to candidates for federal office, political parties, and political action committees.

In McCutcheon, the Court held, by a 5-4 vote, that the limits violate the First Amendment and rejected arguments that the limits could be justified by a governmental interest in preventing either political corruption or the appearance of such corruption. Critics argue that the decision will lead to a political process dominated by wealthy oligarchs who shovel money to their preferred candidates and causes and thereby control American public policy. That’s the position of Senate Majority Leader Harry Reid, for example.

The dissenting opinion in McCutcheon is at least as interesting as the majority ruling, however. In the dissent, Justice Stephen Breyer, joined by three other Justices, articulated a concept of “collective speech” and asserted that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” It’s not entirely clear what Justice Breyer means by “collective speech,” but he obviously believes that the interest in “collective speech” can override individual First Amendment expression.

Over the years, the meaning and scope of the First Amendment has been shaped by a series of Supreme Court decisions. The jurisprudence has long since moved past the concept that “speech” is limited to the spoken or written word; it is well established that acts — like burning a draft card or wearing a protest t-shirt — are protected. Contributing money to a political candidate whom you agree with, or to a cause that you support, is similarly a protected act of speech.

Will McCutcheon open a new frontier in the evolution of the First Amendment, and if so should we be more concerned about the concepts underlying the majority opinion or the dissent? Floyd Abrams, a lion of the First Amendment bar who has been involved in many cases addressing free speech issues, has posted an interesting article that argues that the conceptual underpinnings of the dissent are “deeply disquieting.” Abrams notes that the concept of protecting “collective speech” seems to be inconsistent with prior Supreme Court decisions and is a slippery notion that could allow the government to restrict the amount of speech about which candidate or cause to support — a result that seems inconsistent with the First Amendment rather than in furtherance of it.

The First Amendment is the first item in the Bill of Rights. That context indicates that it is intended to protect individual rights, not “collective speech.” When a First Amendment issue arises, I tend to support the notion of more speech rather than less — with the decisions about what to say, and when, left to individuals, not to the government or to some vague notion of what furthers the “collective” good.