Faith, Beer, and Other Things That Interest Geoff

Breyer Sort of Admits That Campaign Finance Reform Violate Our Freedom of Speech

My comment at the end.

WALLACE: Well, let me give you another example, a very specific example. You voted in 2003 to uphold the McCain-Feingold campaign finance reform law.

Now, you acknowledge that by setting spending limits on advertising that you were, as you put it, interfering with free speech. But you said that there is a higher purpose here.

Higher than the First Amendment?

BREYER: That isn't quite what I said. I think what I said was, when you get a case like that, you start to look to slogans to decide the case. It won't work.

The First Amendment itself, "the freedom of speech," doesn't tell you the answer. Nor does a slogan.

If you want to use the slogan, "Money is at stake, not speech," that seems to work. That means they can regulate anything. But if you think about it for two minutes, you realize that money is very important to speech, because no one can run for office and have his message heard without money. So the First Amendment is involved.

Then if you think the opposite, "Well, wait a minute, these campaign finance limits, what they're doing is they are telling the person who wants to give $20 million that he can't finance all the speech he wants. Doesn't that violate the First Amendment?" I'd say that's a slogan. Why? Because think about that First Amendment. It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections.

The very point of speech in an election is to get a message across. And that may mean, in part, that you don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money.

If you accept that at all, you've suddenly bought in to the proposition that there are First Amendment interests on both sides of this equation.

And once you're there, you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely.

You see what I've done? I've showed you how to go back to that quote.

WALLACE: Right.

BREYER: I used that word, "purpose," to help me in a case where the language isn't clear, where the history isn't clear, where the tradition isn't clear, where the precedents aren't clear, that we have to decide how in that realm of ambiguity to apply the value that's permanent and always there, free speech, to a modern, difficult situation.

Breyer wants to limit the rights of the guy with a lot of money in order to give the guy with less money with more of a voice.

That's all well and good. But the Constitution says you have a freedom of speech which cannot be abridged. It doesn't say everyone has a right to be equally heard. A radio or TV host has more ability to be heard, but that doesn't mean everyone should get their own show.