The First Amendment vs. Democracy

Democrats finally have an answer to Citizens United. Will it survive the Supreme Court?

After years spent impotently bemoaning the symptoms of Citizens United v. FEC, congressional Democrats may have finally settled on a treatment. In March, the House of Representatives passed H.R. 1, a sweeping democracy reform bill that includes two promising campaign finance measures. One would provide a six-to-one match for donations up to $200 to candidates for federal office who swear off bigger contributions and raise the first $50,000 on their own. The other would create a pilot program in which the government would give each voter who wants one a $25 voucher to donate to their preferred candidate. 

These new-generation proposals are examples of so-called “level-up” campaign finance reform. They are designed to counter the power of big money not by pushing down on the super-rich, but by boosting everyone else. In 2018, for example, only 0.47 percent of Americans donated more than $200 to candidates, parties, or PACs, according to the Center for Responsive Politics. The money they gave, however, accounted for nearly three-quarters of all individual contributions. This leads to what the legal scholar Lawrence Lessig, a prominent supporter of the voucher idea, calls “dependence corruption,” in which politicians overwhelmingly cater to the tiny subset of wealthy funders on whom they rely. Spending limits may reduce the overall amount of money in play, but they don’t do much to shift where the bulk of it comes from. Level-up reforms might.

The other argument for level-up programs is necessity: the Supreme Court has essentially taken level-down off the table. In its landmark 1976 decision in Buckley v. Valeo, the Court held that the First Amendment protects Americans’ right to spend money on elections. Buckley was a compromise decision that allowed contribution limits as well as public campaign financing. But in Citizens United, in 2010, the Court dramatically rolled back that compromise by declaring that the government had no compelling reason to limit independent expenditures; by extension, it couldn’t limit contributions to outside groups for the purpose of their own political spending.* This meant the super-rich were suddenly free to donate as much as they want to nominally independent super PACs. And indeed, outside spending has since exploded, quadrupling from almost $340 million in 2008 to $1.4 billion in 2016. 

By making it easier to build campaigns on small-dollar donations, the proposals in H.R. 1 represent a clever way to counter the forces unleashed by Citizens United. But like any tenacious malignancy, the legal opposition to campaign finance reform is itself capable of adaptation. Even if Democrats take back the Senate in 2020 and turn H.R. 1 into law, there’s reason to worry about those provisions surviving the Supreme Court. In fact, there is already a case creeping through the court system that could stop the new wave of campaign finance reform almost before it begins. This summer, the Washington State Supreme Court will consider a challenge to Seattle’s first-of-its-kind voucher program, which was implemented in 2017. The plaintiffs argue that the system violates their First Amendment rights by using their taxes to subsidize the speech of candidates they don’t support. The case, Elster v. City of Seattle, could ultimately make it to the U.S. Supreme Court. 

Like any tenacious malignancy, the legal opposition to campaign finance reform is capable of adaptation. In fact, there is already a case creeping through the court system that could stop the new wave of campaign finance reform almost before it begins.

The suit still looks like a long shot—a distant legal meteor destined to burn up in the atmosphere. But the Roberts Court has proven receptive to more than a few outlandish conservative legal challenges, and it has struck down both of the public financing schemes it has considered. If the plaintiffs in Elster prevail, it will be a reminder of the tenuousness of any legislation aimed at enhancing democracy under the current Court majority. More broadly, a victory for the plaintiffs would expose the rot at the center of First Amendment doctrine. The law governing freedom of speech turns out to be riven by intellectual inconsistency. On the one hand, the Court has said that forcing people to subsidize the speech of others is unconstitutional. On the other, it allows the government to use our taxes to fund all manner of communication—which entails forcing people to subsidize the speech of others. This contradiction creates a vacuum for judicial activism. In the opportunistic hands of the Supreme Court, the First Amendment is a highly customizable weapon.

Constitutional law tends to proceed via analogy: this case looks like that one, so we should apply the same reasoning. Elster borrows its logic not from other campaign finance decisions, but from a case about public-sector unions. For much of the past century, many states allowed “agency shop” agreements, in which public employees could be compelled to pay dues to the union that represented them, even if they chose not to join. This was meant to avoid free riders: since the unions are required by law to represent all employees, the mandatory dues prevent a situation in which everyone decides to enjoy the benefits of collective bargaining without paying for them. 

Until last year, the rule on such arrangements was set out in a 1977 case called Abood v. Detroit Board of Education. States could force public-sector employees to pay dues, the Supreme Court held, but their money couldn’t be used on political or issue advocacy. The Court had decided Buckley just a year earlier, establishing the connection between political spending and speech. In Abood, it reasoned that the fact that nonmembers “are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights.” If there’s a right to spend on politics, there must be a right not to. 

The Abood compromise held for four decades. But last summer, in Janus v. AFSCME, the Court’s conservative majority overruled Abood, holding that even forced dues to pay for labor negotiations violated the First Amendment. In his majority opinion, Justice Samuel Alito reasoned that all public-sector union activity is inherently political. Avoiding the free rider problem wasn’t a strong enough reason to force people to support such political speech against their will. Agency shop clauses for public employees were unconstitutional, period. The case looked to many liberals like a naked effort to hobble an important source of support for the Democratic Party. (And to at least one conservative: Donald Trump tweeted after the ruling, “Big loss for the coffers of the Democrats!”) In her dissenting opinion, Justice Elena Kagan lambasted the majority for overturning a long-established precedent and mounted a vigorous defense of the necessity of agency shop clauses. “The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision,” she wrote. “It has overruled Abood because it wanted to.”

This acrimonious fight, however, overlooked what should have been the real point. The tug-of-war over free riders and political versus nonpolitical speech concealed a gaping theoretical hole in both sides’ reasoning. Because it turns out that Abood, too, was based on an analogy—a false one. Janus was the most recent example of the harm that analogy can cause. It’s unlikely to be the last.

In 1942, Marie and Gathie Barnett, a pair of sisters in West Virginia, were expelled from their elementary school after refusing to say the Pledge of Allegiance. Their case made it to the Supreme Court, which overturned the punishment and held that the First Amendment forbade the government from compelling people to speak. Justice Robert H. Jackson’s majority opinion produced one of the most celebrated lines in Supreme Court history: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Thirty-five years later, in Abood, the Court decided that making public employees give money to unions could be analogous to making children pledge allegiance to the flag. Justice Potter Stewart’smajority opinion referenced Jackson’s famous statement explicitly. The principles behind it, the Court held, “are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose.” Forcing someone to subsidize someone else’s speech was constitutionally equivalent to forcing that person to literally speak. 

What’s strange is that Stewart made no effort to explain why that might be the case. Nor has any justice in the four decades since. Alito’s opinion in Janus spends five paragraphs elaborating on the evils of compelled speech, but when it comes to explaining how compelling subsidies for speech are the same—well, he just doesn’t. (He does cite a seemingly supportive Thomas Jefferson quote, but in fact it’s about freedom of religion.) The opinion simply states that it “raises similar First Amendment concerns.” 

It’s easy to see why freedom of speech requires the freedom to remain silent. If the state could force us to parrot its preferred message, the whole idea of an open marketplace of ideas would be a sham. Our speech isn’t free when the government can tell us what to say. But forcing people to give money to support someone else’s speech doesn’t seem to raise any of the same issues. There is no confession of faith. A public employee who has to give part of her paycheck to the union remains at liberty to air her disagreements with it. Her ability to express herself freely is unaffected. As William Baude and Eugene Volokh—a pair of conservative law professors with no ideological attachment to unions—put it in a law review article criticizing Janus, “Requiring someone to pay money is not requiring them to believe, to speak, or to associate.”

Still, isn’t being forced to give money to an organization whose message you object to kind of . . . icky? Imagine if your town imposed a “speech tax” on property owners and used it to fund an institution devoted to communication. The institution stages theatrical performances you may find offensive, publishes a newspaper with editorials you may strongly disagree with, and even provides resources for overtly political clubs. This all might seem like an intolerable imposition on your conscience. Yet what I’ve just described is a public high school. The idea of being forced to subsidize things against our will is just the definition of taxation. The government, funded by our taxes, speaks all the time, whether we agree or not. And it transfers our money to other people and groups whose speech we might disagree with, whether it’s through arts grants, public university professors’ salaries, or financial support for nonprofit advocacy groups. No one seriously thinks any of this is unconstitutional. So why is it any different when the money goes to a union? 

It’s easy to see why freedom of speech requires the freedom to remain silent. But forcing people to give money to support someone else’s speech doesn’t seem to raise any of the same issues.

It’s true that the dues in Janus weren’t taxes; the money went straight from employee paychecks to the union. But, as Baude and Volokh point out, the government often forces us to give money directly to private parties without acting as the middleman. If you want to drive, you have to get car insurance. GEICO can then use part of your payments to lobby against some new insurance regulation. It’s easy to think of other examples: paying the provider of a standardized test that’s required for a government job, paying opponents’ legal fees after losing a civil suit, and so on. In each case, whoever you pay might spend your money on political advocacy. You don’t have the right to a refund. 

In short, the bedrock premise of both Abood and Janus that compelled speech subsidies violate the First Amendment just doesn’t hold up. But on that point, Baude and Volokh are voices in the wilderness. Indeed, as their article points out, “Even the dissent in Janus—which adopted a generally barn-burning rhetorical approach—never really disputed this general view of compelled subsidies as compelled speech.” What’s troubling is that if the idea were applied consistently, then all kinds of long-standing governmental functions would suddenly be unconstitutional. Things like public subsidies for the arts, or public education—or public campaign finance. 

The plaintiffs in Elster lost their bid to kill Seattle’s democracy voucher program in state superior court. But while their appeal was pending, the decision in Janus came down. Their lawyers, from the Pacific Legal Foundation, a libertarian public interest law firm, filed a special request to have a new trial, arguing that Janus (along with another case decided last year) had created “upheaval in the First Amendment law.” The appeals court evidently agreed. Instead of granting a new trial, it took the unusual step of sending the case directly to the state supreme court. 

The Seattle program is funded by a property tax that creates a pool of money that the city distributes, in the form of four $25 vouchers, to each voter, who then can choose which candidates to give them to. Mark Elster and Sarah Pynchon, the plaintiffs, are two property owners who objected to having their tax dollars given to politicians they don’t support. They argue that by taking their money and giving it to other people to spend on politics, the city is doing exactly what the Supreme Court in Janus said was unconstitutional: compelling them “to subsidize other people’s political speech.” 

It’s a straightforward argument. But the city, whose legal team includes Lawrence Lessig, the scholar who helped conceive the democracy voucher idea, has an equally straightforward response. If the plaintiffs’ argument were correct, then it would seem to invalidate all public campaign financing, since by definition it requires using taxpayer money to support someone else’s political speech. But we know that public financing is constitutional: the Supreme Court has said so ever since Buckley v. Valeo, the original 1976 campaign finance decision. “All that Elster is required to do by the initiative he challenges in this case is pay a tax,” the city’s brief argues. “We all pay taxes, and we all don’t agree with how our tax dollars are spent.” 

So, on the one hand, the Supreme Court says you can’t be forced to give money to fund someone else’s political activity. On the other, it says your taxes can be used to fund campaigns for office. The long-term question is where the Court will ultimately draw the line between these two incompatible positions. Volokh suggested that the answer will likely be between direct transfers and transfers that involve the tax collector as middleman. “Once your money goes into the government,” he said, “the government collects so much money from so many sources, and spends it on so many things, the symbolism of your specific money being used for something you disapprove of is dissipated in a way that it isn’t when it’s used by a private entity.” 

If Volokh is right that symbolism is key, then Seattle may come to regret funding the democracy vouchers by imposing a new property tax. If the money instead came out of general revenues, there would be no subset of people to complain that they’re being unfairly targeted. H.R. 1, the Democrats’ reform bill, has a similar vulnerability because it proposes to pay for the vouchers and matching contributions with a fund supported by fees added to civil and criminal financial penalties. To protect the program against the Janus-style challenge that conservative groups would inevitably mount, Democrats should instead plan to pay for it out of the general treasury. Courts tend to be highly skeptical of lawsuits brought by plaintiffs who have no greater injury than any other taxpayer.

From the perspective of the First Amendment, of course, these should be arbitrary distinctions. The government can tax Peter to pay Paul; it can tax Peter to fund infrastructure, and use the savings to pay Paul; or it can force Peter to pay Paul directly. The choice is a matter of accounting. But when the Supreme Court creates internally inconsistent rules, arbitrary distinctions become inevitable. That leaves the Court with even more room than usual to decide cases based on its policy preferences. “There’s a principle in math that you can derive anything from a contradiction,” said Baude. “Unfortunately, a similar proposition applies in law.”

Janus is far from the only example. The First Amendment is particularly ripe for rules that make sense in one context but would create chaos in another. That’s because free speech is deceptively complex. The government can’t force you to speak—yet it can compel you to testify in court. The First Amendment tolerates all opinions—yet doctors can be sued for giving harmful advice. Over and over, the meaning of free speech depends on the context in which the speech takes place. But the Supreme Court is partial to sweeping declarations that wipe out those subtleties. The plaintiffs in Elster, for example, cite another case from last summer, NIFLA v. Becerra. There, the Court struck down a California law requiring pregnancy crisis centers—nonprofit clinics designed to dissuade pregnant women from getting an abortion—to post information about publicly subsidized family planning services. “The licensed notice is a content-based regulation of speech,” Justice Clarence Thomas wrote in his majority opinion, “compelling individuals to speak a particular message.” 

Labeling a regulation “content based” makes it presumptively unconstitutional. (The Elster plaintiffs thus argue that Seattle’s voucher program is content based.) But if we take Thomas’s logic seriously, then every mandated disclosure—on cigarette packages or insurance policies or financial statements—could be in trouble. The best predictor of which ones will survive and which won’t may well be how the Court’s conservative justices feel about the message. This isn’t speculative. As the dissent in NIFLA emphasized, the Court has held that states can require doctors to provide information about adoption and public child care assistance to patients seeking abortions. This is almost the mirror image of the California law. The only real difference seems to be that these statutes represent the other side of the abortion debate. 

Any progressive effort at campaign finance reform is certain to draw legal challenges, and if ambitious level-up programs like democracy vouchers or six-to-one matching funds catch on, an eventual showdown at the Supreme Court seems likely. The majority has already proven that it is no friend of public financing schemes. The most recent example was a 2011 case called Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Arizona provided additional matching funds to publicly financed candidates when their privately funded opponents, or outside groups, spent above a certain threshold. A group of such candidates and outside groups sued, claiming that the matching system infringed on their First Amendment rights because their spending triggered funding for their adversaries. The conservative justices agreed. The matching provision, Chief Justice John Roberts held, was a “burden imposed on privately financed candidates” that inherently “reduces their speech” by giving a boost to their opponents. To the Court’s conservatives, a law that funded more campaign speech could be a form of censorship.

On the one hand, the Supreme Court says you can’t be forced to give money to fund someone else’s political activity. But, on the other, it says your taxes can be used to fund campaigns for office.

As in Elster, the Arizona system was a type of level-up campaign finance. Roberts treated that fact as strong proof of the law’s unconstitutionality. “ ‘Leveling the playing field’ can sound like a good thing,” he wrote. “But in a democracy, campaigning for office is not a game.” That doesn’t mean that new matching programs or democracy vouchers are doomed; the precise arguments against them are different from the case against the Arizona system. But it does make clear the Court’s baseline hostility to any effort to give publicly financed candidates a better chance to compete. 

Of course, any public financing system in some sense has that goal. Does that mean they will all end up in the Court’s crosshairs? Even Ethan Blevins, one of the lawyers for the plaintiffs in Elster, didn’t think so. “Here, there’s going to be a diversion of my view of the First Amendment and where things stand,” he said, referring to public financing. “I personally think it’s a problem, but it’s pretty clear that the case law allows that.” 

Sometimes, however, the ship of constitutional law begins to turn long before the change of course is perceptible. “We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Roberts wrote in the Arizona decision. He didn’t say anything about tomorrow.

 

*This section has been updated to clarify the holdings of Buckley and Citizens United.

Correction: an earlier version of this piece mistakenly attributed the majority opinion in Abood to Justice Lewis Powell.

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation

Gilad Edelman

Gilad Edelman is the executive editor of the Washington Monthly.