The Lessons of McCutcheon: The First Amendment as Thuggery

Since when did the First Amendment become a tool of thuggery to suppress speech rather than enhance it?  This is essentially what the Roberts Supreme Court did in the recent McCutcheon v F.E.C.  decision striking down aggregate political contribution limits.
    At the core of the McCutcheon  is the argument that all individuals have a right to expend unlimited money for political purposes.  Because of that right, federal laws that overall limit individuals to contributing approximately $123,000 per year to candidates and political parties violated  their right to free speech.  Who knew that such a cap was so suppressive and chilling of  free speech? At least this is what the Roberts Court wants us to believe.  We should all rejoice in our new found freedom to spend as much as we want to affect the political process.  Yes, now the rich  and poor equally have the right to spend more than $123,000 per year for political purposes much in the same way that writer Anatole France once said that the rich and poor were equally free to sleep under the bridge.
    That is false sense of equal rights is one of several points that the Roberts Court misses in McCutcheon.  The rich and poor may equally have the same right to spend unlimited amounts of money, but the reality is that only the rich shall be able to use this right.  For the other 99.9% of the population, McCutcheon has nothing to do with rights.  It does not mean that your tired, your poor, your huddled masses yearning to breathe free, will spend more.  No, it only means a few will do so because they will be able to.   This is what defenders of  McCutcheon either fail to see, or which they see clearly and embrace the decision because of its implications to favor their views.
    The shallowness of the McCutcheon argument lies in a misguided notion of what the First Amendment free speech clause is supposed to be about.  While of course John Stuart Mill wrote long after the Founding Fathers penned the First Amendment, his On Liberty remains perhaps the single best defense of free speech.  Free speech is necessary not simply to express ourselves, but to gather and circulate the information necessary to make informed political choices and to make democracy and the search for truth possible. Free speech is not a silencing tool but an invitation to dialogue, a declaration that were only one side to speak then it would shield dogma and invite censorship. As Mill stated: ”There can be no fair discussion of the question of the usefulness (of an idea) when an argument so vital may be employed on one side, but not on the other.”  It takes at least two to have a conversation; one person shouting at another  is not free speech it is intimidation.
    The First Amendment free speech clause is not meant to be a right for one or the few but for all.  It is recognition that in a society all of us have a right to speak, and to do that, as in any social situation, there are rules of communication that make a conversation possible.  There is no way that a rule that says all of us have an unlimited right to speak is viable; at some point one has to understand that the First Amendment rights of some have to be read or understood in light of the First Amendment rights of others. The right to free speech cannot be interpreted in such a way that  the rights of a few can suppress the free speech rights of others.  As philosopher John Rawls once declared:  “[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Rights to free speech must be read within a social context of like liberty for all.  McCutcheon and its defenders fail to recognize this principle.
    At one time the Supreme Court recognized it.  In cases such as  Burson v Freeman the Court was confronted with conflicting First Amendment rights when it ruled that states could impose a ban on political advertising within one hundred feet of a polling place.  Here there were contending  free speech rights–to vote and to engage in political advertising–and it was impossible to allow for  both in absolutist fashion.  To allow an absolutist position for both rights probably would have meant neither were possible.  Contending rights of differing individuals have to read or understand in ways that respect the rights of both.  Similar tradeoffs or balancing of rights were made in Red Lion Broadcasting v. Federal Communication Commission where the fairness doctrine was upheld, ruling that the free speech rights of broadcasters must be balanced against the first Amendment rights of the public.  The same was true in Smith v. Alwright, where the Court ruled that the First Amendment associational rights of parties had to be balanced against the rights of individuals to participate in politics.
    McCutcheon, along with the 2010 Citizens United v. Federal Election Commission decision allowing corporations to expend unlimited money for political purposes, ignores the social context for free speech rights.  These decisions privilege the rights of the few at the expense of others.  Even worse, they assume that everyone has an unlimited right to speak and that this speech includes the expenditure of money.  It forgets an old adage many of us learned when we were growing up–My right to extend my arm goes no further that your face. 
    McCutcheon crabbed absolutism seems to assume that everyone has a right to spend unlimited amounts of money, even if that means that some have a right to drown out of suppress the free speech rights of others.  That is what McCutcheon will do.  Its impact will be to give some a  megaphone to speak, serving a a sledgehammer to silence others.  The First Amendment free speech clause was never meant to be a bullying tool or an instrument of thuggery but that is what the Roberts Court did in deciding that the rich and poor equally have the right to spend unlimited amounts of money for political purposes.

What does it mean to be a progressive Democrat today?

What does it mean to be a Democrat let alone a progressive one  these days?  The question was prompted by my recent op-ed in Minnpost where in response to an argument against the State of Minnesota granting the NFL tax exemptions to host the Super Bowl, one reader wrote that he supported public funding for the stadium along with the tax breaks, and that he was a Democrat and a “fairly far to the left one too.”
    Since when does a progressive Democrat support tax subsidies and breaks for billionaires and hugely profitable private companies that generate few jobs for working people and provide entertainment (in person) that only a few can afford?  I thought that was what the Republican Party did?  With Democrats like this, who needs Republicans.
    But the debate over tax breaks for the Vikings stadium and the NFL does prompt a broader debate about what it means to be a Democrat or a progressive these days?   It is certainly not  good old-fashioned economic liberalism.  This is not Bill Clinton liberalism that supported NAFTA and welfare reform and which Mitt Romney once warmly embraced as the kind of Democratic Party politics he liked. 
    Instead, the progressive politics that appears dead is that of Lyndon Johnson, John Kennedy, Franklin Roosevelt, and even Teddy Roosevelt. It is about a 21st century version of the Great Society and the New Deal.  It is about redistributive politics that seek to raise those at the economic bottom, narrow the gap between the rich and poor, and wrestle control of political power in the United States from corporations and plutocrats.  It is about the spirit of John Rawls, Michael Harrington, and Dorothy Day and a commitment to believing that the government has an important role in make sure we are a nation that is  not one-third ill-fed, ill-clothed, and ill-housed, that kids should not go off to school hungry, and that corporations should not have the same rights as people.  It is the idea that we help out the least advantaged and most vulnerable first and that the rich have an obligation to help the poor.
    What has taken over for Democrat Party politics is warmed over Republicanism–the centrist sort of corporate politics that some GOP once represented but now have  abandoned as it races further and further to the right, embracing xenophobia, homophobia, and a market fundamentalism that Social Darwinists would embrace. Oh, and vaccines cause mental retardation and global warming does not exist, at least this is what many current Republicans believe.  Even the Republican Party of Abe Lincoln supported civil rights, but not this party–instead it is committed to fine vision that a nineteenth century politician would weep over.  But now consider the Democrats.
    Start at the top.  Obama ran promising change.  The reason why so many are disappointed in him is not that he was too far left but that instead he failed to deliver on his lofty promises.  At inauguration Obama had a window to change America but he flinched.  Carpe diem was not his motto.  But in reality, Obama was never a progressive.  He ran for president opposing a single payer health insurance plan and instead embraced the Republican plan that Mitt Romney adopted in Massachusetts.  Obama was not originally in favor of repealing “don’t ask, don’t tell,” and he did not embrace same-sex marriage until public opinion and political necessity dictated he do so.  
    Obama has deported more  individuals than any other president, he supports coal and nuclear power, and his big victory in repealing the Bush era tax cuts came with a reinstating of the payroll tax, imposing on Americans a more regressive and costly tax system than before.  Obama also defends the use of drones to kill Americans abroad, and he refuses to make any serious changes in an NSA surveillance program that  runs roughshod on the civil liberties of Americans. And in 2008 he took more money in from Wall Street than any presidential candidate in history.
    Across the board many Democrats seem confused to their identity.  They support public subsidies for downtown ball park stadiums and convention centers ahead of neighborhoods.  They defend NSA spying on Americans except when they are spied on.  They take little action to address the impact of money in politics and instead beg for money from big donors and PACs.  They offer few real substantive ideas regarding how to tackle issues such as the achievement gap and the economic discrimination against women (who still make only 77% of what men make).
    Worst of all Democrats lack the guts to fight.  Why?  Democrats (and one should not confuse the current party with progressivism) believe that they are the caretakers for government.  They believe that they need to be responsible and not run the risk of shutting the government down for fear of how it would ruin the economy or hurt people.  But conservatives know this and take advantage of the Democrats willingness to blink.  But guess what?  By blinking the Democrats are screwing over poor people and the economy slowly by giving ground one inch at a time and they seem unable to recapture it. Until Democrats are willing to fight and show conservatives they are willing to shut the government down and hold conservatives responsible they will never win.
    What passes for progressive  Democratic Party politics seems so bland.  Same-sex marriage?  Supporting it a decade ago was progressive but now that is mainstream.  Opposing NSA spying on Americans?  Even Rand Paul does that.  No one should be against strengthening anti-bully legislation.  This is not progressive politics but just common sense.  Yes, raising the minimum wage to an adequate level is good progressive politics, but few talk of living wages these days.
    Progressive politics is dead so long as it is married to the current Democrat Party.  Progressives need their own TEA Party revolution on the left–one that engineers a new rhetoric and take over of the party.  One that is not willing to play it safe and worry that if a few Democrats lose  that means the Republicans win.    It means a willingness to fight for what you believe in.  It also means believing in something worth fighting for.

Members of Congress have an ethical and legal duty to fund the government

The political thinker and Irish Member to the British Parliament Edmund Burke once famously declared the duty of a legislator as between being a delegate and doing what constituents demand versus serving them by exercising one's best judgment.  But there is at least another duty that legislators have and that is a legal if not an ethical duty to comply with their own laws and to support the government they were elected to serve.

               The importance of stating this duty asks under what occasions, if any, are members of Congress permitted to disobey a law as a matter of conscience?  This is the question posed by House Republican efforts to repeatedly defund the Affordable Care Act (ACA or Obamacare) and force a partial governmental shutdown.  In effect, do legislators have a right to disobey and obstruct a law they do not support?  Do they have a right to civil disobedience?  While in general civil disobedience is an important act to test the constitutional values and justice of a society, this is not an option open to members of Congress, at least on this issue and for the reasons Republicans give.

               The relationship between law, justice, and civil disobedience has a long history in the west.  Sophocles' Antigone tells the story of a woman who buried a deceased brother in defiance of the king Creon who ordered her not to do so.  Her decision to defy was premised, in part, upon  concepts of justice and religious grounds, contending that her duty to disobey rested upon a higher law from the gods.  Similarly, Socrates’ trial and defense of his philosophizing invoked a duty to a higher law that justified defiance of human law. St. Augustine was one of the first Christian writers to argue that human laws that are unjust really are not laws.  St. Thomas defined a legal tradition that declared that human law must conform with God’s natural laws of justice, inspiring a generation of political theorists including John Locke who articulated a right to revolution against governments that violated natural rights and laws.  In all of these cases, civil disobedience invoked as an appeal to some higher law or rules of justice that dictated defiance of the law.

               The United States as a country is a product of civil disobedience.  The dumping of tea into the Boston Harbor in 1773 and the 1776 Declaration of Independence were acts of civil disobedience, providing the case for why some laws were unjust and should be ignored or defied.  The abolitionists,  including Henry David Thoreau and John Brown, so disliked slavery or the Fugitive Slave Act that defiance, going to jail, and even violence were viewed as proper acts of conscience.  And then of course Rosa Parks, Martin Luther King, Jr., and the many African-Americans who protested segregation by sitting at “Whites' only” lunch counters or who crossed the Edmund Pettus bridge also felt civil disobedience was an appropriate stance to take to challenge laws that thought were wrong.  In all of these cases, appeals to personal conscience, personal morality, or to religious or other values dictated the choices of individuals to defy the law.  But the question is, do legislators have this same right?  May they defy a law they do not support?  Do they have a right to shut down the government?

               Think first about the right of individuals to engage in civil disobedience.  Political theorist John Rawls argued that civil disobedience has a constitutional role in a just society.  It is an appeal to the shared values of a community, aiming to persuade a majority that it is wrong.   Civil disobedience is not an appeal to political expediency or self-interest. It is not a legal right, but an appeal to justice.  Citizens have a general duty to obey the law, but in some cases some feel that the law is wrong and must defy it.  But they do so first with the aim of changing the law and second, cognizant that they face legal retribution for their defiance.  The act of civil disobedience has the potential to change the law because one is willing to go to jail or be punished for one’s act.

               But private citizens are different than legislators and they may have less right to defy laws they dislike.  First, members of Congress not only have a general duty to obey the laws they have authored, but they have taken an oath of office to obey the law.  This current oath commands members of Congress to defend Constitution, accepting this obligation freely, without reservation, and with the help of God.  Such an oath imposes on them a special duty-above and beyond that of a private citizen—to obey laws.  Does that mean congressional members have no recourse to object to laws they dislike?  Of course not.  They can move to repeal the laws they dislike.  House Republicans have tried that 40 plus times when it comes to Obamacare.  The power to legislate and change laws gives them a tool that mere citizens lack.  While one can question the political reasons or wisdom for repeated votes to repeal the ACA, do that is the right of legislators.

 But there is a difference between trying to repeal a law one does not like and defying it.  This is what House Republicans are doing in seeking to defund Obamacare, pushing the government in to a partial shutdown, and perhaps risking a default on America’s debts come October 17.  For good or bad Obamacare is the law of the land—it has not been repealed and it has not been declared unconstitutional.  Members of Congress are under a legal and moral duty to fund laws and programs that they have authorized, even if personally they voted against the laws.  One of the most basic principles of American democracy is majority rule.  Majorities get their way so long as they do not violate the constitutional rights of minorities.  Majority rule settles decisions until such time as a majority reaches a different conclusion. Similarly, majority rule is the rule of Congress.  At some point votes and elections have settled issues and it is time to move on.  This is the case with Obamacare.

Moreover, Republican efforts to defund Obamacare are not premised upon shared constitutional values or principles of justice.  The decision is based on dislike of the law, Obama, or government in general.  Or it is based on political expediency--appealing to what their constituents want or what will appeal to their electoral base--and not on a sense of higher justice.  Or perhaps it is based on  private conscience or belief that the law is wrong.  All these may be great reasons to seek to repeal the law, but they are not proper grounds for refusing to perform one's specific duty to support a law that has been legally adopted in a democratic society.  Contrary to what she make think, Congresswoman Michele is not Rosa Parks--her reasons for opposing Obamacare are not based on appeals to justice and higher laws, but instead on personal and political expediency.

In general members of Congress do not have a right of civil disobedience to oppose laws they have a duty to uphold.  They are not like ordinary citizens exercising the right of civil disobedience.  Finally, legislators who object to the ACA do not have a right to defund Obamacare and hurt the rest of the country with a government shutdown.  In doing that they are not facing legal retribution for their actions as would ordinary citizens face by defying the law.  These members of Congress are taking a political stand, not an ethical one, and they do not have the right to do that.

Acting Legally, Behaving Ethically

The 1973 movie Paper Chase depicted the brutal image of law school as Professor Kingsfield (actor John Houseman) begins to interrogate students with the Socratic method.  Students are flustered and intimidated by questions, even the most simple ones. Bob Hudak was my 1L Contract law professor, old line and cut from the mold of Kingsfield.  Yet on the first day of class he turned to all of us and said there would be times when he would ask us questions and we would panic.  His advice was to take a deep breath, look us in the eye and then say what makes the most sense.  But more importantly he added, if that is not the right answer then there is something wrong with the law.  His comments forever resonated with me.
    What Hudak was talking about was about the relationship between the law and what political philosopher John Rawls would call our considered moral judgments.  Specifically, the law should in some way support or reflect our deeply held convictions about ethics and justice.  Hudak was not the first to argue that there should be a connection between law and morality.  St. Augustine contended that unjust laws are no laws at all.  Henry David Thoreau protested slavery laws by contending they were unjust, and Martin Luther King, Jr., similarly reached that conclusion when it came to segregation.  All three asserted that  unjust laws lacked a binding moral quality that often  justified civic disobedience.
    But there is a different facet to the relationship between law and morality and it comes in terms of doing the right thing.  It asks not when or whether one has a right to disobey an unjust law but instead whether the law empowers individuals to do what is ethically correct.  Often times individuals may wish to act ethically but are prevented by the law.
    Consider a classic scene from 1994 when the CEOS from the seven major tobacco companies  in the United States testified under oath before Congress.  When asked if cigarettes were unhealthy all said no.  We know they lied.  Internal documents from the tobacco industry proved that.  Yet they  have been legally require to lie.  Under state incorporation laws, they all were under an obligation  to serve the best interests of their business and maximize shareholder value.  Testifying under oath  at a time when thousands of law suits being filed, truthful testimony may have bankrupted their corporations. Lost would have been billions in shareholder value and pensions, untold jobs may have been lost, and many communities devastated.   I suggest to my students that in a perverse way, the law may have required them to lie to Congress.  Of course this is farcical, but it speaks to a gap between ethically what is the right thing to do and what the law may demand.
    But in may situations the law does not always encourage us to do what it ethically correct but instead create incentives to act unethically.  The legal norms of Nazi Germany are the most extreme example.  But across the board one can point to numerous less extreme examples.  For CEOs, decisions to outsource jobs to another country, close a factory and move to avoid pollution laws, taxes, or maximize revenues, or even to agree to a merger may not reflect what is in the best interests of a country, community, or people, but state corporate laws may demand it under threat of shareholder suits.  Public officials may be required to enforce laws they think are unfair, and those working in across many occupations may feel they have no choice but to act unethically because of  the possible legal sanctions that would follow if they were to do what society would regard as correct.
    Economist Milton Friedman most famous essay is his 1970 New York Times “The Social Responsibility of Business Is to Increase Its Profits.”  The title says it all.  Here he denies the capacity and obligation of businesses to act in a socially responsible fashion, instead arguing for the simple duty to maximize shareholder value.  The Friedman essay is one of the most read and influential articles in MBA programs across the United States.  It captures so well a narrow and wooden belief about what businesses should and should not do–and the law reflects those roles.  The law often fails to permit companies to be good corporate citizens and act in an ethical fashion.
    But why is all of this discussion of the law important here?  One of the most fascinating questions to ask is why good people and organizations do bad things?  Why do erstwhile or apparently ethical individuals suddenly act badly?  There are many reasons, but we should not forget the role that the law may play.  There may be circumstances where the law not only fails to support acting ethically but it also discourages it.   Case in point, the initial decision by the Obama administration not to read the accused Boston Marathon bomber his Miranda rights.  The law may have authorized the initial decision due to a Supreme Court created public safety exception, but had the FBI continued to press on with questioning without Mirandizing it would have run adrift of concepts of justice, fairness, and democracy that get dangerously close to the type of questioning many criticized the Bush administration as advocating. Maybe here the law did not necessitate doing the wrong thing, but it should not have facilitated it.
    The law affects behavior in a myriad of complex ways.  But it should not work to encourage unethical behavior.  This was the message that Bob Hudak gave all us law students. It is also a message we should remember when it comes to the construction and management of our society .