Democracy and Free Speech 1

Pat Gudridge:

Chief Justice Roberts is not succeeding, so far anyway, in engineering a spirit of unanimity in the Supreme Court — 5-4 Monday is proof of that. No one could have seriously thought, however, that there was some magic charm Roberts might wield capable of transforming his seven srong-willed senior colleagues into cheerful followers. Roberts, though, is plainly trying to develop his own lines of thinking independent, often enough, of the established positions of Justices Scalia, Kennedy, and Thomas — at some point he may persuade one or more of them to follow his lead, maybe even in an important case. At minimum, it's good practice: Roberts is likely to continue as Chief Justice well into the era after Scalia and Kennedy, at least, have left the Court. He may, someday, overawe their successors.

Wisconsin Right to Life — the campaign finance case — was not, however, Roberts's most immediately successful effort. Scalia, Thomas, and Kennedy refused to join his attempt to define, as a matter of constitutional law, the difference between candidate advocacy and issue advocacy, and thus treat the enforcement of the federal statutory ban on candidate advocacy 30 days before primary election day as wrong given the facts of the particular case before the Supreme Court, but not wrong in principle. Justice Alito did join Roberts, but evidently rattled by Justice Scalia's needling (“faux minimalism”), Alito also added a waffling opinion of his own (thereby supplying Scalia with a second target.) Was Roberts wrong? Ironically, he might be thought to have been not minimalist enough. Wisconsin Senator Feingold was running unopposed in the Democractic primary. The WRTL advertisement discussed the then-pertinent filibuster against several of President Bush's judicial nominees, opposed such delaying tactics, and urged its audience to contact Senator Feingold and also Senator Kohl (for whom the election was irrelevant.) The federal statute keyed its ban to advertisements that referred to candidates. Feingold was a candidate — but he was also a sitting Senator (along with Kohl). Why not read the statute as not covering this case, especially since the primary was — in Feingold's case — [AMF edit: not] a contested election? Roberts (like Scalia et al. and also the parties to the case) supposes that because Feingold is, among other things, a candidate therefore the statute covers the WRTL advertisement.

Why didn't Chief Justice Roberts treat the case as a statutory matter rather than a constitutional matter as such? Maybe because the statute — the McCain Feingold Act — seemed to rest on a strong assumption that's easy to accept: Election campaigning is what's really important; issue advertising like that undertaken by WRTL in the case at hand really is backdoor candidate attack advertising (or support advertising), whatever its literal message appears to be. It's easy to understand why Senators and Representatives would think like this (“it's all about us”) — it's their job, after all, to judge everything around them as potentially affecting their reelection prospects and to respond appropriately: that's what, most of the time, democratic representative government entails.

But that's not the only pertinent perspective. Why would WRTL spend its money, after all, to campaign against Feingold if he was running unopposed? Why would WRTL focus on filibustering as wrong — what does this have to do with protecting the lives of the unborn? To be sure, the judicial nominees who were denied quick votes were, in all likelihood, individuals who as judges would vote in ways that WRTL would support. But why not spend money on direct efforts to build support for the right to life? We know the answers: (1) Maybe WRTL was trying to build a coalition, to add support (sometimes, anyway) of individuals not strongly engaged regarding abortion etc., but strongly committed to straightforward legislative processes. There are such people (maybe quite a few, maybe especially in Wiisconsin, for all we know.) (2) Or maybe WRTL was trying to demonstrate that it has access to resources so rich that it can move beyond its core concerns and therefore needs to be treated, in the real business of legislative bargaining, as a real player. Feingold, on either hypothesis, is a prop, a faux target of the advertisements. Candidates may be secondary concerns even in election seasons.

This is a subversive suggestion, maybe: within our politics, who is elected may not matter as much as what those of us who are not candidates think about “our” own thinking — the views of each other with respect to the issues we all think matters. Election seasons are occasions for “real” politics — voter-to-voter argument, discussion, posturing, etc. Election results are sideshows. This conclusion, we know, is sometimes wrong “big time” (to quote Vice President Cheney)!!!!!! But it's not always wrong — and, as a constitutional matter, we might want to treat free speech protection as more important insofar as it addresses the speech of those of us who are not running for office — maybe popular sovereignty suggests this bias. If so, whatever officeholders or their would be successors think, maybe statutes should be read, where possible, in ways consistent with this bias.

To be fair: Chief Justice Roberts did emphasize the distinction between candidate advocacy and issue advocacy. Indeed, he wanted to treat the distinction as part of constitutonal law. But he had a hard time explaining why. He thought that free speech protection requires bright lines. That's a superficially attractive idea. But the enormous mass of Supreme Court free speech opinions yield very few bright lines. The greatest opinions, however, do try to link free speech protection to even more basic premises. See Brandeis in Whitney or Brennan in New York Times or Harlan in NAACP v Alabama etc etc. WRTL was an occasion for thinking about deep premises — and also a chance to articulate constitutional norms not as rules broken or followed, but as guides to interpreting congressional or other government efforts. Roberts had the change to be both maximal and minimal in the same opinion. Great opinions seize that opportunity.

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