[MUSIC] Imagine a law that restricts speech. And not just any speech. Political speech. Speech that's urging you, the people, to support or oppose some political candidate. That law's going to run into problems with the first amendment which protects the freedom of speech. And the way I've described it, it might sound obviously unconstitutional. If the first amendment means anything, courts have said, it means the government can't censor political speech. But the question can get a little trickier in the area of campaign finance reform. And that's what we're going to explore today. A useful way to start is to think about the First Amendment. Why do we have it? What is it for? There are different answers to this question, but one that the Supreme Court relies on pretty consistently is that the First Amendment exists to protect democracy. In a democracy, we, the people, are supposed to be in charge. We're supposed to govern ourselves, but we can't do a good job of that unless we have information about what's going on, information about the important issues of the day and about how our government officials are doing their jobs. So the First Amendment protects the flow of information that is necessary for democratic self-governance. It protects what the Supreme Court called the marketplace of ideas. Protects it from what? That's the next question, and here to is an obvious answer. Protects it from the government. There are two things you might worry about here. First, Government officials might just be doing a bad job. They might be lazy and corrupt. In order to keep their jobs at the next election, they might want to stop the voters from learning how lazy and corrupt they are. They might want to suppress speech that reveals this. Second. Government officials might want to pursue policies that they like, instead of what the public wants. So they might try to mislead people into approving those policies. They might try to suppress speech that shows that these ideas are actually bad. They might distort the marketplace of ideas. So these points, which pretty much everyone accepts. Suggest a couple of reasons why we might be very suspicious about government attempts to regulate political speech. Clearly there are some bad things that regulation might do. But are there any good things it could do? Well, that's the question. Is there anything good the government could do? Is there anyway in which regulation of speech can actually help democracy instead of hurting it? Now we get to the point where people start to disagree. Some people say, of course not, speech is good for democracy. More speech is better. Any governmental interference makes things worse. As far as the First Amendment is concerned. And it should be held unconstitutional, but there is another side to the argument which is this, government interference ins’t the only thing that can distort the marketplace of ideas. Here’s how the theory goes, with free speech, ideas compete on their merits. Truth wins out, or if not truth at least what the people really want. So it's bad if the government suppresses some viewpoint, because then that viewpoint doesn't get heard. But now the question is, what if some private person suppresses a viewpoint? Isn't that bad too? Doesn't that distort the marketplace of ideas in the same way? Now it's true that private individuals can't suppress speech in the same way the government can. They can't threaten to put you in jail for saying something. What they can do, though, is drown you out. They can do this in two ways. One, they can drown you out with the general public by speaking louder, by buying lots of radio and TV ads that you can't afford. Two, they can drown you out with government officials. They can give lots of money to political candidates with the result that the candidates listen to them instead of to you. In each of these situations, the marketplace of ideas has turned out to be too much market and not enough idea. It's turned out that instead of winning on their merits, ideas win because they're supported by a lot of money. So can the government do anything about that? Can it try to limit the affect of money on politics? Well it has tried to do that. And generally the Supreme Court has said no. Especially in recent years, the court has rejected the idea that the court can regulate in order to improve the functioning of democracy. It cannot restrict the amount of money corporations spend to support or oppose candidates. It cannot limit the total amount of money individuals can give during a two year period. If you think about it, it's not that surprising that the court has taken this view. Because the debate over campaign finance reform is in many ways a replay. Of the debate over affirmative action. In both situations, there's a constitutional provision that's designed to promote some value. The First Amendment, as I've described it here is designed to promote democratic self-governance. The equal protection clause which is the constitutional provision of issue in affirmative action cases, is designed to promote equality. Some kind of equality, but people don't always agree on what kind. And in each situation, the Government is saying, look, here's something we want to do. If you look at it superficially, you might think what we're doing violates this constitutional provision. We're restricting political speech. And of course that might be a First Amendment problem. We’re treating people differently based on their race, and of course that might be an equal protection problem, but if you think about it more deeply the government argument continues. You’ll see that what we’re doing promotes the same value the amendment is trying to promote. Our campaign finance regulation promotes democracy. Our affirmative action program promotes equality. Now, what do we think about that argument? I've tried to give you a pretty neutral presentation of it. But you could describe it in a way that makes it seem crazy. The government is going to tell us that restricting political expression is it's way of promoting freedom of speech? It's going to tell us that handing out preferences based on race is its way of promoting equality? Outrageous. Up is down. Black is white. On the other hand, you could say similar things about the opponents of these government programs. They say that the First Amendment prohibits laws that promote democracy? They say the equal protection clause prohibits attempts to remedy inequality? Outrageous! War is peace, freedom is slavery. So what should you think? Well, of course, you have to make up your own minds. But here's my suggestion for how to approach the question. Most discussions of affirmative action or campaign finance reform describe them as partisan issues. Liberals are in favor of them, and conservatives are opposed. And that's true. But thinking about constitutional issues in partisan terms should really be out last resort, not our first instinct. So is there a different way to think about these issues? There is, and it basically comes down to whether you believe in Constitutional Rights, or in Constitutional Values. The Constitutional Rights perspective says, look, the Constitution gives us some rights. We don't need to ask why. Those rights are rights against government. Only the government can violate your rights, and all that courts should do is stop the government from doing that. This is a view that draws a sharp line between what the government does and what private individuals do. And this generally very skeptical of government. It will tend to lead you to the conclusion that campaign finance reform and affirmative action are both unconstitutional. And this I should point out is basically the perspective that the current supreme court has adopted. The Constitutional Values perspective is different. It says yes, The Constitution gives us certain rights. But it does so in order to promote certain values. It's true that only the government can violate your Constitutional rights. But government isn't necessarily the only threat to those values. Private individuals can distort democracy. Private individuals can undermine equality. And just as private individuals can threaten constitutional values, government can promote them. This is a view that does not make a sharper distinction between government and private actors, and it's generally more trusting of government. It will tend to lead you to the conclusion that campaign finance reform and affirmative action are Constitutional. So, where does that lead us? Well, what I've tried to show you here is that while you can understand these issues in partisan terms, you can also see them as raising deeper questions about the relationship between the people, the government, and the constitution. Can private individuals threaten values the constitution marks as important? Can the government act in the name of those values? What do we do if an attempt to promote constitutional values seems to conflict with constitutional rights? Those are the kids of questions we should be trying to answer. [MUSIC]
