The Internal Speech Service
The real scandal is the trampling on the First Amendment.


Avik Roy

Believe it or not, when the IRS scandal first broke on May 10, the first reaction from many progressives was to blame the Right — specifically, the Supreme Court’s conservative majority — for the affair. “In order to fully understand the IRS-targeting-conservatives scandal,” said Chris Hayes on MSNBC, “you really need to know about the other hidden, untold IRS scandal because that virtually unknown secondary scandal is actually the fertile soil in which the seed for this new scandal was planted.” This second scandal, Hayes and others allege, is the High Court’s 2010 ruling in Citizens United v. FEC.

These progressives aren’t entirely wrong. The Citizens United ruling did create ambiguities in election and tax law. But what the Left fails to tell you is that underneath the fertile soil of this second scandal is a third scandal: that our federal government has the power to regulate free speech at all.

In 1974, Watergate-era Democrats amended the Federal Election Campaign Act to limit individuals’ ability to contribute to political campaigns. President Ford vetoed the bill, but Congress overrode him.

It was an egregious violation of the First Amendment’s stricture that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people . . . to petition the Government for a redress of grievances.” It is this third scandal — that the federal government has an extensive role in regulating political speech in the first place — that is the direct cause of the scandal we face today.

Progressives are keen to wrap themselves around the First Amendment when it comes to publishing pornography or leaking classified information. On Tuesday, the New York Times lashed out at the Obama administration for “threatening fundamental freedoms” by monitoring the e-mails of Fox News’s James Rosen.

But when it comes to the right of Americans to speak out against their government, the Left has a much more nuanced position. Labor unions and the media should have unlimited rights to say what they want, according to progressives, but individuals should not. The principled argument they make is that if we don’t regulate campaign contributions, wealthy people will have more political influence than poor people, and that this would be unfair. (Any advantage that such a regime confers upon Democratic constituencies is entirely accidental.)

From a policy standpoint, this effort to rein in the influence of the wealthy has been a complete failure. Campaign-finance limits have only served to protect well-organized incumbents with extensive fundraising operations; super-wealthy challengers who can finance their own campaigns have also proliferated as a result. Indeed, the median net worth of the 94 new members of the 113th Congress was $1.1 million. The median net worth for an American household, by contrast, is $66,740.

It’s not just congressional Democrats who are to blame for this state of affairs. The Supreme Court has had many opportunities to strike down congressional regulation of political speech. In 1975, Senator James L. Buckley (R., N.Y.) and former senator Eugene McCarthy (D., Minn.) filed a constitutional challenge to the 1974 campaign-finance limits. In a per curiam decision, the Supreme Court upheld core parts of the FECA law, because “corruption or its appearance” justified regulation of political speech.