Today’s ruling in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennet (also known as McComish v. Bennett, and which I’ll mercifully just call Arizona Free Enterprise Fund or AFEF from here) hinges largely on the idea of whether the government should be in the business of trying to establish a ‘level playing field’ for political speakers.
The idea of a government-directed ‘level playing field has long been a dream of the so-called campaign finance ‘reform’ community. But it is a dream that died long ago in Buckley, the defining campaign finance case for the last 35 years. As the Court noted in this case, borrowing from Buckley:
This sort of “beggar thy neighbor” approach to free speech-“restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others”-is “wholly foreign to the First Amendment.”
Needless to say, this gets many people in the ‘reform’ community up in arms. As the argument goes, If some people are able to spend more in politics than others to advance their political views, oftentimes much more, how can we possibly say we have equal rights when it comes to free speech?
There are at least two answers off the top of my head.
The first is simply to observe that the fact that one person is better able to exercise their rights than another does not mean one has greater rights than the other (so long as it is not the government imposing the infirmity, of course). Few would argue that the Catholic Church has more First Amendment free exercise rights than Presbyterians, or that the New York Times has greater First Amendment free press rights than the News Guard in my hometown of Lincoln City, Oregon.
Stepping outside the First Amendment, this principle continues to hold. We all have the exact same right to be free of unreasonable search and seizure in our “persons, houses, papers, and effects” (Fourth Amendment to the Constitution), for example. Does someone who has more than one house, whether a modest vacation home somewhere or several mansions spread throughout the country, have greater Fourth Amendment rights?
Obviously not. They simply have more opportunities to exercise that right – while I only have one house that the government can’t come in without a warrant, others like John Kerry and John McCain (to mention just two people who’s ownership of multiple homes have been campaign issues in the past) have many more homes that the government can’t come into without a warrant.
Trying to apply some sort of equalization rationale to the Fourth Amendment, or the free press or religious freedom clauses, would lead to the obviously unsupportable result whereby only the first 3,500 or so copies of the New York Times would be free of government interference because the circulation of the News Guard is about 3,500 (and it’s actually a weekly, so maybe only the first 500 copies?), or only a primary residence is free from warrantless searches by government but the government can raid other properties without restraint.
What self-styled ‘reform’ advocates miss is that the First Amendment is not meant as the granting of abilities by government to engage in certain activities, backed up by a government program to make sure everyone is able to engage in those activities to the same degree. Instead, the First Amendment is simply a prohibition on the government from limiting the right of any person to exercise their rights to speech, assembly, petition, and the rest.
Critics of this often deride this analysis by comparing it to a law that “forbids rich and poor alike to sleep under bridges.” But while this may be a valid critique of laws that literally forbid rich and poor from sleeping under bridges, it has no place in a discussion of First Amendment (or other) rights. There is nothing in the American concept of rights that somehow provides an asterisk next to the First Amendment that means ‘unless wealthy people benefit unfairly.’ The rights are what they are – a prohibition on the government meddling in certain areas, whether they meddle in the affairs of rich, poor, or those in between.
The second answer to the question of whether government should be able to create a ‘level playing field’ is more practical. Simply put, having government in charge of deciding who has spoken enough and who has spoken too little would be a disaster, and a complete affront to the very idea of freedom of speech.
To begin with, how would the government go about deciding whose voice is too loud, and needs to be restrained? For some on the ‘reform’ side, the answer is easy – corporations and the wealthy. But this is not an opinion shared by all.
In fact, I frequently read that public employee unions have too loud a voice in our political system, and their voice is the one that needs to be restrained. When I read about the California budget crisis for example (any of them over the last several years, not just the current one), it is a fairly common complaint that public sector unions are too powerful, their voice drowns out the voices of average citizens, their campaign money buys them undue influence, and similar charges.
The point isn’t that we need to clamp down on the political speech of public sector unions (we don’t), but that giving government the authority to decide which speakers must be restrained will result in people’s own ideological and political preferences guiding their decisions and limiting the speech of voices they disagree with while giving the green light to voices they favor. This would make a mockery of the First Amendment, giving government a power that the Founding Fathers were intent on avoiding.
How frequently, to whom, through what medium, and to what effect speakers make their views known to the public on political (and other) matters may strike some as unfair, or at least unfortunate. And by many measures they have a point, as anyone who recalls Snyder v. Phelps (the funeral protest case decided earlier this year) can tell you.
But giving the government the authority to decide that there is such a thing as ‘too much’ political speech by some persons is directly contrary to the First Amendment and the basic tenets of our system of government.
