Freedom of Speech and Speech About Political Candidates: The Unintended Consequences of Three Proposals

Eugene Volokh*

Most effective speech to the public requires money.  If spending more than $1000 on expression is outlawed, then you may not place more than a tiny ad in any major newspaper, buy virtually any television time, put up a billboard, or mail more than a few thousand newsletters.  That’s an extremely serious restriction on your ability to express your views.

This, of course, has obvious implications for campaign finance laws, because this means that some such laws may be unconstitutional.  But it also has implications for free speech law, since the precedents set in campaign finance cases will affect the rules governing speech restrictions generally.  And because campaign finance cases arouse such passions, they risk creating rules that can have unexpected—and possibly dangerous—consequences in many areas far outside campaign finance.

This essay aims to briefly highlight the potential unexpected consequences of three kinds of arguments about campaign finance restrictions, arguments that as it happens correspond to three opinions in the recent Nixon v. Shrink Missouri Government PAC case.[1]  And if the analysis here is right, then it may well be that the Nixon majority and even the much-lambasted Buckley v. Valeo[2] actually make a good deal of constitutional sense.[3]

I.          The Constitutional Tension Approach

Let me begin with Justice Breyer’s opinion, which I found eloquent enough that I would like to quote it at some length; but let me at the same time quote another similarly eloquent opinion alongside it.

The opinion on the left is Justice Breyer’s; the one on the right was written by Justice Frankfurter—the same Justice whose Kovacs v. Cooper concurrence Breyer approvingly cites—and it was written in Dennis v. United States.[5]  Restrictions on Communist advocacy, Justice Frankfurter argued, couldn’t be judged by wooden formulae or subjected to a rigid presumption of unconstitutionality, because they implicated constitutional values (free speech versus democracy) on both sides of the inquiry.  Instead, these restrictions required context-sensitive balancing, and ultimately deference to the legislative branch.  Justice Breyer similarly argues that restrictions on campaign-related speech can’t be judged by wooden formulae or subjected to a rigid presumption of unconstitutionality, because they implicate constitutional values (free speech versus democracy) on both sides of the inquiry.  Instead, the restrictions require context-sensitive balancing, and ultimately deference to the legislative branch.[6]

I think Justice Frankfurter got it wrong in Dennis, and I am happy that the Court has since implicitly retreated from its holding in that case.[7]  But there’s much to what he says, just as there’s much to what Justice Breyer says.  Their opinions outline a powerful, even if ultimately insufficiently speech-pro­tective, alternative to conventional free speech libertarianism.

But I doubt that many of the liberals who support the Breyer view of campaign speech restrictions would be wild about a revival of First Amendment Frankfurterianism. Justice Frankfurter certainly didn’t limit his balancing to Communist advocacy:  He was willing to balance away free speech rights in a wide variety of cases.[8]  If Justice Breyer is modeling himself on Justice Frankfurter, that’s not a good sign for those who support strong speech protection.

What about the one limiting principle that Breyer’s opinion seems to suggest—that his deferential balancing applies only when “constitutionally protected interests lie on both sides of the legal equation,”[9] an approach I call the Constitutional Tension Method?[10]  This may sound like a helpful constraint, until one recognizes how often judges can identify some constitutionally protected “interest” supporting an abridgement of a constitutionally protected right.

Justice Frankfurter’s own jurisprudence provides many such examples.  In Dennis, he justified restricting Communist speech by pointing to the constitutional interests in “democracy” and “[t]he constitutional power to act upon [the] basic principle” of “[t]he right of a government to maintain its existence,” which is “the most pervasive aspect of sovereignty.”[11]  In Bridges v. California, he would have upheld a court’s punishing a newspaper for commenting on pending litigation, on the grounds that in such a case “the claims on behalf of freedom of speech and of the press encounter claims on behalf of liberties no less precious”—the right to a fair trial.[12]  Likewise, in Terminiello v. City of Chicago,[13] he endorsed Justice Jackson’s opinion, which would have allowed punishment of speech that could lead to mob violence, even when the speaker isn’t intentionally trying to incite such violence; without such a power, the opinion argued, constitutional liberties, including the freedom of speech itself, would suffer.[14]

Other judges and commentators have used the Constitutional Tension Method to argue for yet other speech restrictions.  In rough chronological order, here are a few examples:

·                    The Sedition Act:  Justice Iredell defended the Act on the grounds that seditious speech jeopardized the constitutionally established regime of republican government and even the freedom of the press itself.[15]

·                    Antiwar speech:  The World War I-era Supreme Court justified restrictions on antiwar speech on the grounds that such speech undermined the constitutionally secured war power.[16]

·                    Advocacy of illegal conduct:  Gitlow v. New York[17] and other contemporaneous decisions argued that advocacy of illegal conduct was punishable because such speech was contrary to the constitutional framework of democratic decisionmaking.[18]

·                    Bitter criticism of religion:  Throughout the 1940s and early 1950s, Justice Jackson argued that the government may restrict religious advocacy that harshly criticizes others’ religions, because such speech is in tension with the constitutional value of religious freedom.[19]

·                    Racist and sexist advocacy:  Modern advocates of restrictions on bigoted advocacy argue that these restrictions are permissible because they further the constitutionally established value of equality.[20]

And we can easily imagine still other possible examples of what might happen if the Constitutional Tension Method is adopted.  Speech aimed at pressuring newspapers into dropping a columnist whose work the speaker finds offensive could be punished on the theory that such pressure itself jeopardizes the constitutional value of free speech.[21]  Speech praising the killing of police officers or justifying the actions of looters could be punished on the theory that it undermines the constitutionally protected values of life and property.[22]

The Court has generally rejected these arguments,[23] and for good reason.  First, these examples of “constitutional tension” do not actually involve any real conflict between specific constitutional provisions.  Our government is built along certain constitutionally specified lines, has certain constitutionally specified powers, and labors under certain constitutionally specified disabilities.  But even when speech somehow undermines one of the “values” embodied in this structure (whether it be democracy, the war power, the rule of law, the power of the judiciary, religious tolerance, or racial or sexual equality), the speech does not in fact violate any of these constitutional provisions.

Antiwar advocacy may make it harder to wage war, but it doesn’t actually contradict Congress’s war power.  People’s spending a lot of money to further their agenda may be in some way undemocratic, but it isn’t actually prohibited by any of the rules set forth in the Constitution.  There is thus no need to choose between violating one constitutional provision or the other—courts may insist that the government obey the Free Speech Clause without actually contradicting any other constitutional provision.

Second, accepting the constitutional tension argument in one area seriously risks undermining free speech protection in all the other areas to which I’ve pointed.  Perhaps Justice Breyer (unlike Justice Frankfurter) would be willing to limit his application of the constitutional tension method to election-related speech, though I’m not sure about that.[24]  But in any event, if the method is adopted by the Court, it will become a precedent for many other cases.

After all, if free speech may be trumped by “constitutionally protected interests” even when the speech—advocacy of the election or defeat of a candidate—lies at the heart of First Amendment protection,[25] why shouldn’t the same happen in a variety of other areas?  If strict scrutiny is inapplicable here, why shouldn’t it become equally inapplicable elsewhere?  Even those who support restrictions on campaign-related speech might be properly hesitant to endorse a First Amendment exception as potentially broad as this one.

II.         The “No Hired Laborers” Approach

Justice Stevens’s Shrink Missouri opinion was written to “make one simple point.  Money is property; it is not speech.”  Therefore, Justice Stevens argued, the use of money in election campaigns to pay “hired laborers,” “mercenaries,” or “gladiators” should be protected only under the rules applicable to other “property rights,” and should not be given “the same protection as the right to say what one pleases.”[26]

Now Justice Stevens’s “simple point” is literally true—money is not speech—but it doesn’t show much by itself.  After all, expenditure limits don’t just bar the use of money; they single out the use of money to speak.  A law restricting people from flying places to give speeches would be a speech restriction, not because “flying is speech” but because giving a speech is speech and burdening such speech (you may not fly in order to do it) is a speech restriction.  Likewise for restrictions on spending money for speech.[27]

Justice Stevens would reject this standard First Amendment analysis,[28] and hold that a restriction on using money to speak is not properly seen as a speech restriction.  This position, though, would have some striking consequences.  To begin with, it’s hard to see how his logic would be limited to spending money on campaign-related speech.  When a newspaper hires reporters or pays editorialists, for instance, it’s also using “[m]oney . . . to pay hired laborers to perform [speech-related] tasks.”[29]  When a publisher buys the rights to a book, it is also engaging in a sort of “‘speech by proxy’” and in a sense “hir[ing a] gladiator[]” rather than “say[ing] what [it by itself] pleases.”[30]  When a movie director uses actors to make a movie, he is “hir[ing] mercenaries to work in [his speech product].”[31]  Thus, under Justice Stevens’s approach, the government would acquire broad power to control newspapers, book publishers, directors, and anyone else who hires others to participate in creating a speech product, rather than doing all the speaking himself.

Nor is it clear how Justice Stevens’s framework could be limited just to speech, rather than applying to a wide variety of other constitutional rights.  Say that the fact that “money is property, it is not speech” means the government has a fairly free hand in restricting your using money to speak.  The fact that “money is property, it is not abortion, contraception, education, assistance of counsel, or free exercise of religion” would then equally enable the government to restrict your using money to get abortions, buy contraceptives, send your kids to private schools, hire a lawyer, or build a church.[32]

After all, the doctor paid to perform an abortion, the lawyer paid to represent you, and the contractor paid to build a church are as much “hired laborers,” “mercenaries,” and “gladiators” as is a newspaper that is paid money to run a political ad.[33]  Under Justice Stevens’s analysis, only conduct that relies on “inspir[ing] volunteers”[34] would be protected using the traditional constitutional rules; any conduct that involves spending money would not.

These may seem like radical hypotheticals—but Justice Stevens’s is a radical proposal.  If it’s taken seriously, and not limited in an arbitrary way to the situation in which it’s suggested, then it would indeed extend to these examples.  And if it’s inappropriate for these examples, why is it sound for free speech?

Justice Stevens might reply that he’s not rejecting all constitutional protection for the spending of money:  Rather, he’s suggesting only that spending money would need to be judged under the constitutional rules protecting property rights generally, and not the special constitutional rules applicable to free speech (or to reproductive rights, parental rights, the right to counsel, the free exercise of religion, and the like).  Justice Stevens’s opinion, for instance, suggests that one’s property rights might possibly protect some sort of right to spend one’s money on independent campaign expenditures.[35]

But this is only a suggestion, with no elaboration or explanation.  Justice Stevens never states exactly what protection his proposal would provide.  I suspect that it won’t provide that much, given that the constitutional right to use one’s property as one sees fit hasn’t gotten particularly strong protection from the Court—and certainly not from Justice Stevens.[36]

Perhaps under Justice Stevens’s approach parents’ property rights (for example) would still be construed broadly enough to let parents use their money to educate their children.  Or perhaps not.  Given Justice Stevens’s past abortion opinions, I take it that he would view the property rights of pregnant women and contributors to Planned Parenthood as broad enough to let them use their money to fund abortions; but no-one knows under what principle.  It is for this mystery that Justice Stevens suggests we trade existing constitutional protections.

III.       The “Right to Select the Most Effective Means for [Speaking]” Approach

Justice Thomas, joined by Justice Scalia, dissented in Shrink Missouri, and called on the Court to strike down limits on campaign contributions.  Such limits, he argued, should be “subject[ed] to strict scrutiny”[37] (a point on which Buckley agreed),[38] and should fail this scrutiny because the limits have not been proven to be narrowly tailored to the interest in preventing corruption.[39]  And the speakers’ ability to communicate through alternative means, such as independent expenditures, shouldn’t matter.  “The First Amendment protects [individuals’] right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.”[40]  “[T]he Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade.”[41]

But according to a long string of Supreme Court cases, the Constitution does not generally allow individuals “to select what they believe to be the most effective means for [speaking],” or “leave[] it entirely up to [speakers] to determine . . . the means they will use.”  The government may stop me from speaking using soundtrucks,[42] residential picketing,[43] billboards,[44] the burning of a draft card,[45] or a variety of other means, and it may do so even if I want to speak on core political topics.  Content-neutral speech and conduct restrictions that leave ample alternative channels for speaking are judged under a far lower standard than strict scrutiny, even when they deny speakers the ability to use what the speakers think are the most effective means of communication.

Restrictions on contributions to candidates that are justified by a concern with quid pro quo corruption are similar to content-neutral speech restrictions.[46]  They apply the same principle that underlies the broader restraints on any valuable gifts to officeholders, restraints that are likewise justified by the concern that a gift may be a covert bribe.

On their face, contribution restrictions bar all contributions of money to political campaigns,[47] regardless of the content of the speech that the contribution is fostering, or even of whether the contribution is being used for speech.[48]  And they are justified without reference to the communicative impact of speech:[49]  The concern that a contribution might be a tacit bribe doesn’t turn on the communicative impact of the speech for which the contribution is likely to be spent.  In this respect, restrictions on campaign contributions justified by the danger of subtle bribery differ from limits on what candidates spend out of their own funds and from limits on total spending by a candidate campaign:  These latter limits are not justifiable as attempts to prevent quid pro quo corruption; rather, they are “designed to ensure that the political speech of the wealthy not drown out the speech of others” and are thus indeed “concerned with the communicative impact of the regulated speech.”[50]

Now it’s true that some limits on campaign contributions may in fact be motivated by the desire to limit the communicative impact of well-funded speech, even if the limits are ostensibly aimed at preventing quid pro quo corruption.  Worse yet, some supporters of such limits may even be motivated by the desire to suppress those ideas that wealthy contributors are particularly likely to promote.[51]

But while this possibility of content-based legislative motivation is a serious concern, the Court has generally held that it will not inquire into such matters, because it’s just too hard to determine why legislators really implemented a content-neutral restriction.  This is the holding of United States v. O’Brien, where the Court refused to strike down the ban on destroying draft cards, despite the plausible claim that some of its supporters voted for it precisely because they wanted to suppress the message of defiance communicated by public draft card burning.[52]  So long as the law is facially justifiable without reference to the communicative impact of the prohibited behavior, it is treated as content-neutral.

Likewise, it’s true that limits on campaign contributions have the foreseeable effect of disproportionately restricting speech of a particular content—speech advocating the election of candidates.[53]  But the same is true of all content-neutral restrictions.  Bans on soundtrucks in an environment where soundtrucks are used largely for political campaigns have a similar effect.  Bans on residential picketing have a disproportionate effect on those causes that disproportionately use residential picketing.  Content-neutral injunctions disproportionately affect certain speakers.[54]  The Court has concluded, however, that these disparate impacts on various kinds of speech do not turn a facially content-neutral restriction—one that’s justified without reference to the communicative impact of the speech—into a content-based one.[55]

So if this analysis is correct, the proper standard of review of campaign contribution restrictions must be different from that used by Justice Thomas’s dissent.  The Court may not rely on the argument that the speaker generally gets to choose his means of communication:  While this principle generally applies when the law restricts the content of speech (as in Cohen v. California,[56] one of the cases on which Justice Thomas relies) and thus interferes with the speaker’s choice of content, it generally doesn’t apply when a content-neutral law restricts the manner of speech and thus interferes with the speaker’s choice of manner.  Nor may the Court demand that the law be the least restrictive alternative,[57] unless it overrules its precedents holding that the least restrictive alternative inquiry is inapplicable to content-neutral restrictions.[58]

True, even the scrutiny applicable to content-neutral restraints imposes two important demands on the law.  First, content-neutral restrictions are subject to lower scrutiny only if they leave open ample alternative channels.[59]  This is why independent expenditure restrictions would be unconstitutional even if they were treated as content-neutral:[60]  Limiting people to spending only $1000 to spread their messages leaves them with virtually no effective alternative means of reaching their intended audience.[61]

One can likewise argue that campaign contribution limits also fail to leave open ample alternatives.  To begin with, one can argue that they fail to leave open such alternatives for would-be contributors who want to say to the public “vote for candidate Joe Schmoe.”  The alternative of speaking via independent expenditures, the argument would go, is grossly ineffective compared to contributing money to Schmoe’s campaign, where it would be pooled with other funds and would become part of Schmoe’s coherent “vote for Schmoe” strategy.  And one can also argue that campaign contribution limits fail to leave open ample alternatives for the candidates themselves:  By diminishing the funds available to candidates, they cut back on the amount of speaking the candidate can do.

These are serious problems, and Justice Thomas’s opinion points them out.[62]  Nonetheless, under the existing law of content-neutral restrictions, it’s not clear that these problems are serious enough to make the restriction unconstitutional.  Especially given the ability of many people to pool their independent expenditures—the expenditures would only have to be independent of the candidate, not of each other—a regime that allowed unlimited expenditures but only modest contributions would still leave people with considerable opportunities to speak.

“That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter,” the Court held in Kovacs v. Cooper, “is not enough to call forth constitutional protection for what those charged with the public welfare reasonably think is a nuisance when easy means of publicity are open.”[63]  “That the city’s limitations on volume [of music in Central Park] may reduce to some degree the potential audience for respondent’s speech,” the Court held in Ward v. Rock Against Racism, “is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate.”[64]

Likewise, that more people may be more easily and cheaply reached using large campaign contributions, or that the shift to independent expenditures may reduce to some degree the potential audience for a contributor’s speech, may not be enough to call forth constitutional protection for what may be a potential source of a considerable amount of hidden bribery.  A campaign contribution limit may be invalidated if it significantly frustrates contributors or (more likely) candidates’ ability to express their views, and perhaps $250 limits (or even $1000 limits, given today’s costs) might indeed have such a drastic effect.[65]  But if the effect is modest enough that the candidate and the contributors are seen as having ample alternative means of communicating, then such a modest burden may be constitutional even if it in some measure interferes with speakers’ “select[ion of] what they believe to be the most effective means for [advocating their cause].”[66]

The second important rule applicable to content-neutral restrictions is that they may not be overinclusive:  “Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”[67]  Justice Thomas’s dissent likewise rested on this argument:  “I cannot fathom,” Justice Thomas, wrote, “how a $251 contribution could pose a substantial risk of securing a political quid pro quo.”[68]  If this argument is correct, and I think it might be, then the contribution restriction is overinclusive, since a substantial portion of it—the limit on restrictions from $251 to whatever total does begin to pose a substantial bribery risk—does not serve to advance the goal of preventing quid pro quo corruption.

But even if the argument is correct, it does not support overruling Buckley altogether; at some point, the corruption risk does become great enough that the law stops being overinclusive.  Moreover, even $251 contributions may be used as a sort of implicit bribe if they are bundled together, as contributions often are.  One hundred $300 contributions from members of some group, raised at the group’s fundraiser, can be a substantial amount in a race for an office that represents fewer than 100,000 people (the sort of office for which the $250 limit was in effect in Shrink Missouri[69]).

How might Justice Thomas’s dissent respond to this?  Well, it argues, contribution limits are overinclusive not just because some contributions are so small that they are ex ante incapable of being bribes.  Rather, they are overinclusive because looking at matters ex post, we can see that only a small minority of contributions were actually bribes.  “[A] blunderbuss approach which prohibits mostly innocent speech cannot be held a means narrowly and precisely directed to the governmental interest in the small minority of contributions that are not innocent.”[70]

This argument raises an important question, one that goes to the heart of the overinclusiveness inquiry.  Say that a law restricts certain kinds of speech or expressive conduct on the grounds that each statement has the potential to cause a certain harm, and that it’s impossible to tell up front whether any particular statement will cause such harm.  But say also that in retrospect it’s clear that most such statements end up not causing the harm.  How should this law fare under a First Amendment “overinclusiveness” inquiry?

Sometimes, the Court has taken the approach that Justice Thomas suggests.  In Schneider v. New Jersey,[71] for instance, the government defended a leafleting ban on the grounds that it was needed to prevent littering; though many leaflets wouldn’t be thrown on the ground, each leaflet had the potential to be littered. Nonetheless, the Court struck down the law, and later cases characterized this result as reflecting the principle that handbilling bans are unconstitutional because they “would suppress a great quantity of speech that does not cause the evils that it seeks to eliminate.”[72]  (Schneider itself didn’t explicitly discuss this point.)

On the other hand, in most such cases the Court has upheld prophylactic content-neutral restrictions.  In Regan v. Time, Inc.,[73] for instance, the Court upheld a ban on color reproductions of U.S. currency and on same-size (even if black-and-white) reproductions, on the grounds that the ban was justified by the interest in preventing counterfeiting.  Of course, the overwhelming majority of such reproductions weren’t used for counterfeiting, but the Court stressed the possibility that such reproductions “increase[] a counterfeiter’s access to . . . negatives and plates and enable[] him to more easily use them for counterfeiting purposes under the guise of a legitimate project . . . .  That the limitations may apply to some photographs that are themselves of no use to counterfeiters does not invalidate the legislation.”[74]

Likewise, United States v. O’Brien[75] held that a ban on destroying draft cards was justified by the government’s interests in enabling people to prove their registration status, facilitating communication with draft boards, and reminding the registrant of his duties,[76] even though in practice many of the draft cards would never be used for this purpose, and thus many destructions of draft cards wouldn’t really implicate the government’s interests.  Heffron v. ISKCON[77] similarly held that a state fair’s ban on soliciting and leafleting by wandering speakers was justified by the fair’s interest in avoiding congestion, even though in practice much of the restricted speech would not have caused congestion.

These results make considerable sense, because the prophylactic restrictions in those cases did not “burden substantially more speech than is necessary to further”[78] the government interest.  The whole burden, including the burden on the speech that might ultimately prove not to implicate the interest, was necessary, since there was no way of telling up front which speech would have implicated the interest and which wouldn’t have.

Under this dominant approach, in which “[t]he requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation,”[79] a restriction on campaign contributions should probably be seen as narrowly tailored.  If the restriction were removed, and only “[b]ribery laws” and “disclosure laws” remained—which is what Justice Thomas suggests[80]—the government interest in preventing de facto bribes would be “achieved less effectively.”

Now perhaps Justice Thomas is right that the government shouldn’t be able to achieve its interests with maximum effectiveness, because “the First Amendment does not permit the State to sacrifice speech for efficiency.”[81]  But such a test, which would predominantly rest on precedents borrowed from the law of content-based speech restrictions, would require a substantial change to the existing jurisprudence of content-neutral speech restraints.

Likewise for the reintroduction of a least restrictive alternatives inquiry, or for adapting the principle that speakers have a broad right to choose the content of their speech into the principle that speakers have an equally broad right to choose the manner of their speech.  People considering these proposals—especially conservatives, who have traditionally endorsed a great deal of legislative flexibility as to content-neutral speech restrictions—should thus think seriously about such proposals’ implications outside the campaign speech area.

Conclusion

The alternatives to Buckley v. Valeo offered by both the left and the right should give pause even to those who might at first find them appealing.  Liberals who support campaign speech restrictions should balk at either Justice Breyer’s or Justice Stevens’s broad First Amendment revisionism.  Conservatives who oppose such restrictions should be hesitant to endorse an approach such as Justice Thomas’s that might potentially disable the government from enacting many sensible content-neutral speech restraints.  And when all is said and done, Buckley might prove to be not quite the travesty that many on both the left and the right sometimes suggest it might be.