McCutcheon: Should the rich speak louder?

By Jeffrey Rosen
April 3, 2014

On Wednesday, the Supreme Court handed down its most important decision on campaign finance reform since Citizens United. The decision, McCutcheon v. Federal Election Commission, seemed to divide along familiar ideological lines, with Chief Justice John Roberts writing the majority opinion for five conservatives and Justice Stephen Breyer, writing the dissent for the four liberals.

What really divided the court, however, wasn’t partisan politics pitting Republicans against Democrats but two conflicting views of the First Amendment. Which view you embrace depends on whether you see the McCutcheon decision as a principled triumph for unpopular speech or a First Amendment disaster that will ensure that a handful of the richest Americans can use their vast resources to drown out the voices of everyone else.

The First Amendment view embraced by Roberts and his conservative colleagues is rooted in individual liberty. There’s no right in our democracy more fundamental, Roberts began, than the First Amendment safeguards for “an individual’s right to participate in the public debate through political expression and political association.”

People exercise both these rights when contributing to candidates, Roberts said, whether they are a “lone pamphleteer” or someone who spends “substantial amounts of money.” He maintains that Congress may not “restrict the political participation of some in order to enhance the relative influence of others.”

The First Amendment that Breyer and the liberal dissenters embrace is far different. Breyer objected that Roberts’s focus on “the individual’s right to engage in political speech” fails to account for “the public’s interest in preserving a democratic order in which collective speech matters.”

Breyer explained that crucial civic discourse can be overwhelmed by the inequalities of wealth. “Where enough money calls the tune,” Breyer wrote,” the general public will not be heard.” That’s why he stressed “the constitutional importance of Congress’ con­cern that a few large donations not drown out the voices of the many.”

Both views of the First Amendment are plausible. They point, however, in very different directions. Roberts insisted that individual free expression and association is so important that only evidence of quid pro quo corruption — for example, trading votes for money — can justify limiting it. Breyer’s emphasis on collective political participation led him to fault the court for defining corruption too narrowly, and ignoring the Founders’ concern that representatives are responsive to all of “We the People” — not just the wealthy few.

What’s significant about this debate is that neither Roberts nor Breyer denied that the contributions of the wealthy few have the potential to drown out the voices of the less wealthy many.

But Roberts insisted that the First Amendment doesn’t allow Congress to address the problem by requiring the wealthy to turn down the volume. He said Congress instead must use alternatives to restricting speech — such as disclosure laws — that critics say are ineffective or unrealistic.

A similarly surprising consensus emerged Wednesday in a debate about the McCutcheon decision between Floyd Abrams, the leading civil libertarian liberal defender of Citizens United and the Roberts view of free speech, and Lawrence Lessig, the leading crusader against what he calls the “dependence corruption” that makes candidates dependent on their richest donors to the exclusion of everyone else.

Abrams agreed with Lessig that “wealthy people have the power to communicate much more than people who don’t have money.” This influence can come in two ways: the voices of the wealthy can influence the public debate by paying for a barrage of ads or push polls more than those who can’t afford ads and push polls while at the same time, because money buys access and influence, candidates are likely to pay more attention to their most generous contributors.

Abrams disagreed only with Lessig’s proposed solution — limiting spending by the rich to reduce their likelihood of influencing elections or candidates. Inequality of wealth is a social problem, Abrams said, but “a core lesson of the First Amendment is that we deal with social problems at our best in ways that don’t limit freedom of expression” — such as changing the tax or anti-trust laws.

Lessig, like Breyer, countered that far from forbidding efforts to prevent the rich few from drowning out the voices of the less rich many, the First Amendment requires it. “The majority opinion,” Lessig said, “is contrary to the idea of creating a democracy where the government is responsive to the people. He continued, “A conception of corruption that doesn’t allow Congress to achieve the objections of representative democracy” — where Congress is dependent on all the people not just the rich — violates the Framers’ original understanding.

Lessig and Abrams, whose debate was hosted by the National Constitution Center, agreed that the McCutcheon decision would be unpopular with a majority of Americans. But, Abrams insisted, this is the price of the First Amendment.

Roberts made a similar point in his majority opinion. “If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition,” he said.

Those who oppose the Supreme Court decisions striking down campaign finance reform but support First Amendment protections for unpopular speech need to respond to Roberts’ and Abrams’ challenge It is not enough to say these decisions undermine elections because the voices of the powerful few drown out the voices of the less powerful many — since neither conservatives nor liberals dispute that.

The stronger response is that the speech of the rich has the potential to make the people’s representatives less dependent on the people themselves. The Framers of the First Amendment might well have concluded that far from forbidding Congress’s efforts to make government more responsive to all the people, the Constitution requires it.


To listen to the National Constitution Center’s podcast debate about the Supreme Court’s McCutcheon decision, click here.


PHOTO (Top): The Supreme Court building seen in Washington, May 20, 2009. REUTERS/Molly Riley

PHOTO (Insert 1): Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, Feb. 9, 2006. REUTERS/Jim Young

PHOTO (Insert 2): Supreme Court Justices Stephen Breyer (L) and Antonin Scalia testify before a House Judiciary Commercial and Administrative Law Subcommittee hearing on Capitol Hill in Washington, May 20, 2010. REUTERS/Kevin Lamarque


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Yes, I believe Paris Hilton and Jane Fonda should have more say than me because they are rich. So they must be smart and hard-working and natural leaders…. or how else could they get all that money?

Give all your power to the rich. They will lead us forward :)

Posted by AlkalineState | Report as abusive

I’m glad you’re still going strong. Would like to see your comment which broadens my view usually.

Posted by Kailim | Report as abusive

All money can buy is OUR votes. Not one of mine goes to any republian/liberterian/tea party member or people posing as democrats and independents. There are plenty of people out there like OUR Senators Elizabeth Warren (D), Angus King (I), Bernie Sanders (I), Ed Markey (D)and Tim Kaine (D)who want to restore democracy in America. We need to find and support them from across America. Marjority rules if we vote.

Posted by njglea | Report as abusive

@AJTurgot – Wealth cited for Washington and Jefferson looks suspicious. Even if most of their wealth was in land and that was used to estimate their wealth in today’s dollars that land wouldn’t have been nearly as valuable then. Most of the acreage would have been undeveloped and would have been effectively worthless unless there were tenant farmers on it generating an income for the estate. The houses and outbuildings were not very large and weren’t as complicated and sophisticated to build as in later periods. Rising populations increased their value but neither owner could have claimed that then. They also used on-site materials for the most part. Slave labor should be valued as a very low rate of pay and they tended to live in very poor physical surrounding, all of which they had to build themselves with cheap materials they provided themselves from estate resources. They could augment their diet with some estate produce (I suppose), their own gardens and anything they could catch themselves. In other words. Washington and Jefferson weren’t as rich as they were powerful. You can’t really translate power into dollar amounts easily.

Never the less, you could build houses like Monticello and Mt Vernon today for a few million and Mt Vernon had a lot of copies or modern adaptations over the centuries, especially in the 20th century, but they tended to be built with different technology and materials and that makes them more expensive then the originals.

Real estate assets can only really be reliably valued in terms of the present market value otherwise they really aren’t worth inflation adjusted dollars. They are very sensitive to population pressure. Most of the 13 colonies were very nearly wilderness.

They couldn’t have been the wealthiest presidents of all time in as much as the country wasn’t all that wealthy either. Both of them died in severe financial difficulties. Jefferson died bankrupt. Both estates were sold and went into decline though the 19th century and the houses were very dilapidated before they were made national historic sites. I don’t think either of them ever counted their wealth in millions of dollars even in their own day. I think Mt Vernon was an abandoned building, so that means the estate was idle. Monticello was so far gone animals had been kept in it.

It might be a whole different story if the money that may flood to fund elections here actually managed to elect people that would willingly bankrupt themselves for the welfare of the country but we will probably see something more like Old Rome, or aristocratic Europe, or South American during the 19th and early 20th centuries, where Congress becomes a rich man’s club and totally enthralled to big wealth’s priorities. While the rest have no or little union protection and many more are on some form of national dole. Professionals – except for some public employees like teachers and public employees, don’t tend to have unions. The rest will be wage slaves and dependent on very large businesses for a reliable income or they won’t be able own a house (and mortgage). iT’s a democracy but with substantial nudges in the direction of the companies interest. They may also find pressure is put to bear on them to vote like everyone else in the company votes or you just aren’t promoted.

The whole country could become a company town and, in many ways, already is. We’ll have something that looks like “democracy” but more like the British model during the time before WWI or the Chinese system but with open elections of the officials. The candidates will all have to undergo a largely secret vetting process before you ever see their names.

If it is like the old British model – that would be acceptable because the upper class was expected to fight and possibly die in the wars to create the empire. A lot of upper class men died in WWI. That isn’t what this country has now. Only those with the fewest opportunities find military service attractive and it’s been that way since the Vietnam war.

Now we have a career military that could possibly make itself something like the Praetorian guard, that can have a sizable impact on who is vetted fit for candidacy.

Am I way off the mark here?

Posted by paintcan | Report as abusive