Back in October, I wrote a post I titled “The ‘Freedom Caucus’ Is Missing the Point: You Have to Win Elections to Get Stuff Done.” The main point of the post was this: President Obama is now doing most of what he is doing through executive orders and administrative action. If the Republican candidate for president doesn’t win in 2016, the next Democratic president will continue doing this. The Freedom Caucus, et al., are missing the fact that many of the things they want the House Republicans to do will turn off so much of the middle 20% of the electorate, which is where elections are won, that the result will be a Democrat winning next November.
Which is why I think it is so important to play the long game and focus on winning the election next November, instead of doing things to excite some part of the Republican base now. I have been hoping to write a similar post on foreign policy, but I have not be able to get to it. However, there is another issue where the result next November is just as important: the First Amendment and freedom of speech – especially political speech.
Back when I was in law school, and William Rehnquist was being appointed to the Supreme Court, liberals (as they were then called) were the absolutists (or pretty much absolutists) on freedom of speech. Justice Hugo Black1 was famous for carrying around a copy of the Constitution and quoting the First Amendment in response to questions on freedom of speech. He would say things like this:
“The Framers of the Constitution knew that free speech is the friend of change and revolution. But they also knew that it is always the deadliest enemy of tyranny.”
and this:
“Criticism of government finds sanctuary in several portions of the 1st Amendment. It is part of the right of free speech. It embraces freedom of the press.”
In the 1960s and 1970s, liberals wanted to protect a press – and speech – that was criticizing things such as the Vietnam War. Here is Justice Black again:
“In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly.”
Now, however, times have changed. Liberals, many of whom now call themselves progressives, are so upset about conservatives and corporations spending large amounts of money on political and issue-related ads that they no longer support Hugo Black’s view of the First Amendment. (Spending by labor unions doesn’t seem to bother them in the same way.) Their view is that, if spending is unequal, it’s unfair – and violative of a reading of the First Amendment that is based on what they see as a broader view of what it means to be a democratic society.
Speech isn’t “free” if some people are able to spend more money on campaigns, etc., than others. In his book Freedom of Speech, David K. Shipler, who claims he is “as close to being an absolutist on the First Amendment as possible without quite being one” (p. 10), says this about political speech:
“In politics, the wealthy are heard, and the poor are muted, unable to buy their way into the debates were money equals speech, and poverty equals silence.” (p. 11)
Last year, 54 Democratic senators voted to approve a proposed amendment to the First Amendment that would specifically allow Congress to pass laws regulating political speech:
“Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”2
Note the emphasis on equality and the idea that speech is not free if it’s not equal. This is not the time or the post to get into the question of whether money makes winners or winners attract money. I also don’t want to get into a discussion of whether the First Amendment is a good idea. The First Amendment is unusual in the world, even in democracies. Other countries don’t have it. Whether that makes our system better (which I think it does) or shows that we don’t need it (as others think, apparently including the Senate Democrats) is not the subject of this post. It would require a book.
The point of this post is this: If you believe in the First Amendment and if you don’t like the idea of Congress (and your state government3) having the right to regulate speech about politics and elections, the 2016 presidential election is critical. Many of the Supreme Court decisions protecting political speech have been 5-4 decisions. Given that Justices Scalia and Kennedy, who were members of the five-person majority in those cases, are both 79, the importance of the 2016 election is obvious.
If a Democrat is elected next year and either Justice Scalia and Kennedy leaves the court in the next four years, they will be replaced by a clone of Justice Sonia Sotomayor or Elena Kagan.4 And 5-4 decisions invalidating Congressional (and state) restrictions on political speech will become 5-4 decisions approving them (or 6-3 if they both leave). If a Democrat is elected president next November, a proposed amendment to the First Amendment, like the one I mentioned above, wouldn’t need to be passed by Congress and approved by three-quarters of the states. A Democratic victory would accomplish the same thing as adopting the amendment because a Supreme Court with a Democratic appointee replacing even one of Justices Scalia and Kennedy would interpret the First Amendment as if the amendment had been adopted. (If you think I am wrong, read the dissents in some of the 5-4 decisions on political speech. See, for example, here and here.)
To protect the First Amendment from being read to allow governmental regulation of political speech, we need to elect a Republican president next November. While I cannot be sure that a Supreme Court justice nominated by a Republican president would always vote the way the current majority has voted on political speech cases (after all, Justices John Paul Sevens and David Souter were nominated by Republicans), I have no doubt that any justices nominated by a Democratic president to replace one of the judges in the majority would turn the four-judge minority into a five-judge majority.
As I said a month ago (and repeated above), to win in 2016 you need to win a majority of the middle 20% of the electorate. 40% of the voters, give or take, will vote for almost any Republican candidate, and 40% will vote for almost any Democrat. You win by combining your 40% with a majority of the 20% in the middle.
Therefore, we need not to do things that will turn off the middle 20%, especially things that don’t matter because they can’t pass. It is one thing to stand up for one’s principles. It is another to lose elections because of trying to something that won’t pass anyway. At times, it seems too much of the Republican base doesn’t understand this. They don’t focus on that fact that, if we want to stop the growth in government by regulation (see my post in October) and if we want to protect the First Amendment and stop government from restricting political speech, we need to win the presidential election in 2016. And that means that doing what is necessary to win next November, by winning a majority of the middle 20%, is more important than fighting battles we can’t win now.
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1 Or Mr. Justice Black, as he was called in those pre-Sandra Day O’Connor days.
2 The Democrats’ proposed amendment did include a section 3 that was supposed to protect freedom of press: “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.” However, how that would ultimately be interpreted in connection with the other two sections of the proposal, and whether it would really work like proponents of the proposed amendment claim, is unclear. For example, what exactly is the press? The New York Times? Of course. But what about New York Times books? (Interestingly, in the first set of oral arguments before the Supreme Court in the Citizens United case, the Solicitor General said that, under the Administration’s interpretation of the law, the publication of books could be banned during certain periods before elections.) What about TV and radio stations owned by a newspaper? How many readers (or clicks) does a blogger need to have to become part “the press”? Do you need to be printed to be part of “the press” or can Internet-only sites/publications be included? Etc.
3 Which is especially scary if you live in a state like Illinois. How would you like Rod Blagojevich having a role in regulating what you can say about elections? Or how would you like Wisconsin’s secret “John Doe” subpoenas (a/k/a the “star chamber” comes to the First Amendment) being legal all over the country? (With respect to Wisconsin's secret "John Doe" investigations, see, inter alia, here, here, here, and here.)
4 If either Justice Breyer or Justice Ginsburg, who are 78 and 82, respectively, and who have been in the minority in political speech cases, leaves the Court, a Democratic president would replace them by justices who would vote the same way.
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