The Corner

Newspeak and the Supreme Court

If I seem to have had Orwell on the brain lately, it is because his eternal relevance is particularly intense at the moment.

Consider Dahlia Lithwick’s argument in Slate, and, by extension and more important, Justice Breyer’s argument, on the matter of the McCutcheon decision. Regarding the question of corruption, Lithwick writes:

If dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment. We. All. Know. This. 

. . . Breyer is quick to call out the chief justice’s narrow reading of quid pro quo corruption, noting that Roberts specifically excludes any efforts to “garner ‘influence over or access to’ elected officials or political parties” . . . . Breyer tersely writes: “Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” The First Amendment doesn’t protect speech for its own sake, he continues: “The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”

In short: Political activism must be suppressed, because it might be effective. 

Lithwick and Breyer are putting forth an argument that is sensible only if one defines “corruption” as “successfully garnering influence over or access to elected officials or political parties.” Garnering influence over elected officials and political parties is the point of political communication. Justice Breyer’s thoroughly Orwellian position is that the public’s “collective speech” — a thing that, it bears noting, does not exist — supersedes the individual rights that are enumerated in the Constitution because the exercise of the latter would, he believes, damage the former. Breyer holds that this so-called collective right is necessary to allow the emergence of a marketplace of ideas “to form a pubic opinion that can and will influence elected representatives,” which, perversely, requires us to stop actual citizens from trying to “garner influence over or access to elected officials or political parties.” Which is to say, his argument is that in order for free speech to be meaningful as an abstraction, it must be suppressed in fact. 

By Lithwick’s standard, communication is corruption if it accomplishes its purpose, which is to influence politicians and policy. To put it in Newspeak terms: “Suppression is freedom.”

One of the truths that the Left consistently ignores is that the question of using money to further political views is deeply tied to the issue of minority rights. There are many ways to influence policy, the most common one being prevalent numbers: The NRA is an effective organization not because it spends much money on politics (it is a relatively small spender) but because it has numbers on its side, a great many well-organized members. Gay-rights groups until quite recently operated in much the same way: Gays are a small minority, and for a long time they did not have very many energetic allies outside of their own community; their numbers were small, but they were committed, and they were willing to spend money to advance their argument. Were they self-interested parties seeking a “return on their investment”? Of course they were — that is the point of political action: to secure one’s interests. 

A quick glance at the financial affairs of the American Federation of Teachers and the National Education Association suggest very strongly that the Left does not care much about the flow of money into political affairs. There is almost nothing to the Left’s argument in the McCutcheon case, only the naked desire to disadvantage minorities that must rely primarily on financial rather than numerical influence to advance their interests. That kind of vulgar and reactionary majoritarianism is why we have a First Amendment in the first place, and a Second Amendment, too.

The right to dispose of one’s own property and the right to seek redress of grievances against the government under which one lives do not come from the state or the law, and they are not negotiable. The Supreme Court here has not created a right;  it has only made a concession to the law described in the Declaration of Independence, which is beyond any court’s power to revise. The government of these United States exists at the sufferance of the people, not the other way around. The only scandal here is that Americans have been reduced to begging before the Supreme Court in order to have their fundamental rights recognized by the government under which they live. 

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