Balkinization  

Monday, June 27, 2011

Libertarian premises and campaign finance

Joey Fishkin

The Supreme Court's latest campaign finance blockbuster Arizona Free Enterprise v. Bennett, which came down this morning, brings to mind an essay by the late, great political theorist Jerry Cohen. In the essay, "Freedom and Money," Cohen explains how poverty, and more generally, lack of money, limits freedom. "The value of money is that it gives you freedom," he writes. I'll give you just one footnote that gives a flavor of the argument: "Suppose that two people are prevented from boarding a plane, one because she lacks a passport and the other because she lacks a ticket. Was only the first unfree to board it? What the airline does to the ticketless passenger is exactly what the state does to the passportless one: block her way." (Cohen, Freedom and Money, reprinted in On The Currency of Egalitarian Justice and Other Essays in Political Philosophy, p. 179 n.29 (2011)).

To most libertarians, this is nonsense. "Freedom" means freedom from government interference, they argue -- not freedom from all interference. Or at any rate, while there are various possible definitions of the word "freedom," the freedom we ought to care about is freedom from government interference. Cohen disagrees; in his view, the freedom that matters most is actually getting to do things we want to do. People who complain that corporations, employers, Internet Service Providers, or other non-governmental actors are interfering with their freedom of speech are embracing Cohen's side of this debate. What does this have to do with campaign finance? (More after the jump.)




One of the enduring questions in campaign finance law, and First Amendment law more generally, is what effect(s) my speech has on your speech. Campaign finance reformers used to argue that my speech could drown out, diminish, or otherwise crush your speech. This was one thread of the justification for Congress' post-Watergate attempt to impose spending limits on candidates and independent groups, which the Court struck down in Buckley v. Valeo in 1976.

In Arizona Free Enterprise v. Bennett, in an interesting twist, it is now the opponents of campaign finance reform who embrace a version of the claim that my speech can diminish your speech. Under the Arizona law the Court just struck down, if I participated in Arizona's public financing scheme, and you campaigned against me, spending lots of money to speak loudly, I got extra funds to speak back. In the majority's view, giving me these extra funds, enabling me to engage in extra speech, either "diminish[es] the effectivness" of your speech or chills you from speaking to begin with. In an amicus brief, the United States had resisted this argument, writing, "[p]roviding additional funds to petitioners’ opponents does not make petitioners’ own speech any less effective." The majority slaps that down in four words. "Of course it does." (slip op. 21). Of course my speech can make your speech less effective. At least, that's the majority's view when my speech is government-subsidized.

If my speech can make your speech less effective, shouldn't my ability to make your speech less effective provide a justification for efforts to "level the playing field," which the Court now entirely forbids? Of course not. What matters to the majority is not your freedom to speak "effectively," but rather, your freedom from the government helping your opponent. Taken to its endpoint, this logic would mean that all opt-in public financing regimes would be constitutionally suspect. It remains to be seen how far the Court wants to press this part of the logic of today's decision; perhaps some of the justices in the current 5-4 majority will get off the train before that point. They should. As hard as this is for libertarians to accept, there is more to freedom -- and to an "uninhibited, robust, and wide-open" public debate -- than making sure the government does as little as possible.

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