Geof Stone on McCutcheon v. FEC

The First Amendment Doesn’t Protect the Right to Buy the American Government
Geoffrey R. Stone
The Daily Beast
April 5, 2014

The five justices on the Supreme Court (John Roberts, Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito) who consistently hold unconstitutional laws that attempt to set limits on the size of permissible campaign contributions and expenditures have embraced a distorted—and dangerous—conception of the First Amendment. Perversely, their understanding of the First Amendment threatens to undermine the very democracy that the First Amendment was designed by the Framers of our Constitution to preserve.

The incoherent nature of their understanding of the First Amendment is clearly illustrated by the fact that, in his opinion in McCutcheon v. FEC, Chief Justice Roberts expressly invokes as authority for his position the Court’s prior decisions holding unconstitutional laws that ban flag burning, forbid offensive protests near funerals, and prohibited neo-Nazis from marching in Skokie, Illinois. The suggestion that those decisions—bulwarks of our First Amendment jurisprudence—are relevant precedents in cases like Citizens United andMcCutcheon ignores a fundamental distinction that lies at the very heart of the First Amendment.

In each of those the decisions Roberts cited, the Supreme Court invalidated a law that prohibited speech because of the message being communicated by the speaker. The government, in effect, was attempting to excise certain points of view from public debate. As the Court h