Campaign Finance Reform and the First Amendment

Has the Supreme Court Misinterpreted the First Amendment?

Reading the First Amendment makes one wonder how the Supreme Court could have turned its clear and unambiguous words into a mismash of ambiguity.

 “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The writers of the Constitution did not use the words “expression”, “association”, “affiliation”, or “common political goals.” What they did do was name different kinds of things using ordinary diction—speech, press, assemble, petition, and grievance. In ordinary parlance, speech means talk and in the Eighteenth century, press meant print. The press as we know it today did not then exist. “Assemble” means to get together in the same place, “petition” means a written request, and a “grievance” is a perceived injustice.

Yet, in BUCKLEY ET AL. v. VALEO, the Court wrote:

 “(b) The First Amendment requires the invalidation of the Act's independent expenditure ceiling, its limitation on a candidate's expenditures from his own personal funds, and its ceilings on overall campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.”

In support of this interpretation, the Court cites Mills v. Alabama, 384 U.S. 214, 218 (1966); yet that decision clearly only refers to printed matters. “The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 U.S. 444.” The other decisions cited in the section on General Principles all also relate solely to printed matters. So how do speech and press come to mean expression, a far more generic term, and how did the court use this embellishment to make unlimited campaign expenditures a First Amendment right?

The court writes, “The Act's contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act's contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates. And the Act's contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. By contrast, the Act's $1,000 limitation on independent expenditures "relative to a clearly identified candidate" precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association. See NAACP v. Alabama, 357 U.S., at 460 . The Act's constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression "is simultaneously an interference with the freedom of [their] adherents," Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion). See Cousins v. [424 U.S. 1, 23]   Wigoda, 419 U.S., at 487 -488; NAACP v. Button, 371 U.S. 415, 431 (1963).

Notice how the diction has changes. “Assemble” has become associate and affiliate. “Grievance” has become political goals. So this decision is not based on the text of the Constitution; rather is results from equivocating on that text.

Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) makes identical substitutions: “Equally manifest as a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” So do Wigoda, 419 U.S., at 487 –488 and

The mistaken result then goes something like this: A person expresses his preferences by the way in which he spends his money. Freedom of expression is guaranteed by the First Amendment. So to limit a person’s expenditures on a political campaign infringes his First Amendment rights. More simply put, freedom of speech (read talk) is guaranteed by the First Amendment. Money talks; therefore spending money is speech protected by the First Amendment. But any student of classical logic should recognize this argument as an example of the fallacy of excluded middle.

Sure metaphorically, money can be said to talk. So can many other things, as for instance, scant or revealing attire, expectorating in the face of an official, turning your back on a judge in a courtroom, refusing to pay one’s taxes on the grounds that they support an injust governmental activity.

Isn’t it strange that spending money on political campaigns in ways that foster the appearance of governmental corruption is ruled to be protected speech, but that more honest ways of speaking metaphorically or symbolically are not? Perhaps it’s not just the legislative and executive branches of our government that are corrupt. Or perhaps our judiciary is made up of persons who are just intellectually and morally challenged in the manner in which decisions are written.

The argument presented in a decision is almost impossible to ferret out because of citations to previous cases. A decision includes a quotation from a previous case and appends its citation. When one goes to the cited case, one finds the same practice, and the chain of previous cases is lengthy and following it is cumbersome. At times a reader gets the feeling that the citations are circular; the beginning of the chain can’t be found. And if any court in the chain commits an error of equivocation or amphiboly or a fallacy, it is perpetuated throughout all the other cases that cite it. So the exact reasoning is obfuscated, and bad decisions are the result.