Congress Shall Make No Law...
January
31
10:27 PM
Garbage In, Garbage Out

Over at ACSblog, Ohio State law professor Dan Tokaji argues that it’s time for campaign finance “reformers” to proclaim proudly that “equality,” rather than “corruption,” is the reason they favor restricting political speech:

 

Acceptance of equality as a rationale won't make hard questions surrounding campaign finance regulation disappear. It will, however, ensure that we are asking the right question: Whether particular regulations will really promote political equality, without unduly infringing other values like fair competition. The time has come for U.S. reformers to embrace equality openly, rather than continuing to disguise it in the garb of anticorruption. This approach will not find favor before the current U.S. Supreme Court. In the long run, however, it will lead us toward a healthier democracy that more closely approaches the ideal of equality for all citizens, regardless of wealth.

 

We agree that “reformers” should be more candid about how the equality rationale is at the heart of their efforts to limit speech. But Professor Tokaji fails to realize that there’s a very good public-relations reason for “reformers” to keep that rationale under wraps: It’s pretty obvious that it will inevitably lead to censorship.

 

For example, under the equality rationale, there’s no reason the government couldn’t silence media outlets and outspoken critics of the government’s policies on the ground that those speakers aren’t promoting political equality—defined by the government as the implementation of its policies. If the public rejects those policies, then speech must be limited further to avoid what the government deems to be inegalitarian outcomes.

 

These logical implications of the equality rationale do not, to say the least, enhance the marketability of campaign finance “reform.” 

 

Professor Tokaji does not grapple with these implications.  Perhaps he hopes that wise and benevolent leaders will be fair in their policing of political speech, including speech they don’t like, but he should know better. Perhaps he hopes that the only leaders who will exercise this power will be those who promote his notion of “equality,” but, again, he should know better.

 

Thankfully, the Founding Fathers did know better. That’s why the First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” Whether regulations comply with it—rather than whether they promote an amorphous notion of political equality—is the right question to ask. Until he does so, Professor Tokaji (and other proponents of the equality rationale) will keep coming up with the wrong answers about the government’s power to limit political speech.