The Supreme Court’s decision yesterday in McCutcheon v. FEC (invalidating aggregate campaign contribution limits under the First Amendment) has little of originalist interest.  Chief Justice Roberts’ plurality (for himself and Justices Scalia, Kennedy and Alito) purports to be a doctrinal application of the Court’s prior decision in Buckley v. Valeo; Justice Thomas’ concurrence would overrule Buckley, but not, so far as I can tell, on originalist grounds.  (SCOTUSBlog analysis by Lyle Denniston here).

The originalist silence is troubling.  I previously expressed some doubts about McCutcheon, and I still have them.  The core of the case (as with prior campaign finance cases) is the proposition that campaign contributions are speech.  Well, maybe they are, but that isn’t obvious from the ordinary definition of speech, so I would think there should be some historical support for that conclusion; but none is offered.

Justice Thomas’ opinion highlights the problem.  He argues that, because contributions are a form of speech, the Court in Buckley erred in treating restrictions upon them somewhat more leniently than restrictions on actual speech.  His argument, though, isn’t that the language and understandings of the founding era establish this equivalence — it’s that equivalence can be demonstrated by analytic reasoning.  Here is the core of his argument (some citations omitted):

As I have explained before, “[t]he analytic foundation of Buckley . . . was tenuous from the very beginning and has only continued to erode in the intervening years.” Shrink Missourisupra, at 412 (THOMAS, J., dissenting). To justify a lesser standard of review for contribution limits, Buckley relied on the premise that contributions are different in kind from direct expenditures. None of the Court’s bases for that premise withstands careful review. The linchpin of the Court’s analysis was its assertion that “[w]hile contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” 424 U. S., at 21. But that “‘speech by proxy’” rationale quickly breaks down, given that “[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender’s message—for instance, an advertising agency or a television station.” Colorado Isupra, at 638–639 (opinion of THOMAS, J.). Moreover, we have since rejected the “‘proxy speech’” approach as affording insufficient First Amendment protection to “the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.”

[The opinion continues in this vein for some time, addressing and rejecting other arguments for treating pure speech and contributions differently].

From an originalist perspective, this seems a mistaken exercise.  The question is not whether, as a matter of some abstract principle, contributions are or are not speech.  I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one.  But in any event, that isn’t the question an originalist asks.  The question is (or ought to be) whether “the freedom of speech” in the founding era included campaign contributions.  (I’m not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era’s view makes analytic sense to us (or to any individual Justice) should be irrelevant.

To illustrate, consider an analogous question: are pictures “speech” that is protected by the First Amendment? An originalist cannot solve that question by analytic reasoning, although no doubt there are various inconclusive analytic arguments why they are (or aren’t).  The question should be how “the freedom of speech” was defined at the time of enactment.   If it included pictures, then they are protected; if it didn’t, then they aren’t.  So with campaign contributions.

Trying to solve these questions by judicial reasoning rather than historical inquiry converts them from questions about what the framers wrote to questions about what the judge thinks is best.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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