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Democracy and the Freedom of Speech: Rethinking the Conflict between Liberty and Equality

Published online by Cambridge University Press:  20 July 2015

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This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, the ideal position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.

After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I make two main claims. First, I argue that although the libertarian/egalitarian distinction is usually presented as a binary choice, the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value—liberty or equality—at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in its Citizens United decision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (Harper and Bryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law.

Type
Research Article
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2013

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References

Many thanks to Larry Alexander, Daphne Barak-Erez, Corey Brettschneider, Susan Brison, Andrew Geddis, Dan Meagher, Margot Young, Kent Roach, Adrienne Stone, Luc Tremblay, and anonymous referees for very helpful comments and conversations. This article also benefitted from comments by participants at the 2011 Freedom of Speech Workshop at Melbourne Law School, the 2012 Law and Society Association Annual Meeting, and the 2012 Beetz-Laskin Colloquium at the Faculty of Law, University of Montreal. I am also grateful to Richard Bronaugh and the staff at the Canadian Journal of Law and Jurisprudence for very helpful editorial suggestions.

1. Demaske, Chris, Modern Power and Free Speech: Contemporary Culture and Issues of Equality (Lanham: Lexington Books 2008) at 11 Google Scholar; Moon, Richard, The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000) at 8.Google Scholar

2. Meiklejohn, Alexander, Free Speech and Its Relation to Self-Government (New York: Harper Brothers, 1948).Google Scholar

3. It is assumed here that restrictions on money are equivalent to restrictions on speech. For an opposing view, see Hellman, Deborah, “Money Talks But It Isn’t Speech” (2011) 95 Minn L Rev 953 Google Scholar.

4. See Sunstein, Cass R, Democracy and the Problem of Free Speech, 2d ed (New York: The Free Press, 1995) at 151 Google Scholar.

5. Fiss, Owen M, The Irony of Free Speech (Cambridge: Harvard University Press, 1996) at 17 Google Scholar [Fiss, Irony].

6. Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000) at 121, 146Google Scholar.

7. For a discussion of free speech principles in the United States and Canada, see Greenawalt, Kent, Fighting Words: Individuals, Communities, and Liberties of Speech (Princeton: Princeton University Press, 1995) at 1127 Google Scholar; Dawood, Yasmin, “Democracy, Power, and the Supreme Court: Campaign Finance Reform in Comparative Perspective” (2006) 4 Intl J Constitutional L 269 at 285-87CrossRefGoogle Scholar.

8. Sunstein, supra note 4 at 1-51.

9. Ibid at 8-10.

10. Sunstein, Cass R, “Free Speech Now” (1992) 59 U Chi L Rev 255, 259CrossRefGoogle Scholar.

11. Fiss, supra note 5 at 2-3.

12. Sunstein, supra note 10 at 267.

13. Ibid at 291.

14. Fiss, Irony, supra note 5 at 13.

15. Ibid.

16. Ibid.

17. Ibid at 15.

18. Fiss, Owen M, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder: Westview Press, 1996) at 5 Google Scholar [Fiss, Liberalism].

19. Fiss, Irony, supra note 5 at 15-16.

20. Fiss, Liberalism, supra note 18 at 4-5.

21. Fiss, Irony, supra note 5 at 16. Fiss argues that there are two objectives behind the regulation of campaign finance. The first is to put the less affluent on an equal footnoting with the wealthy, and the second is to minimize the effect of this disparity on the public discourse. Fiss, Liberalism, supra note 18 at 6.

22. Fiss, Irony, supra note 5 at 2.

23. Fiss, Liberalism, supra note 18 at 4.

24. Ibid at 5.

25. Dworkin, supra note 6 at 121.

26. Ibid at 146.

27. Ibid at 182.

28. Ibid.

29. Ibid at 183.

30. Ibid at 120.

31. Ibid at 352.

32. Ibid at 353.

33. Ibid at 381-82.

34. Rawls, John, A Theory of Justice, rev’d ed (Cambridge: Harvard University Press, 1999) at 224.Google Scholar

35. Ibid.

36. Ibid at 221.

37. Ibid.

38. Moon, Richard, “The State of Free Speech” (1998) 48 UTLJ 125 at 132CrossRefGoogle Scholar.

39. Buckley v Valeo, 424 US 1 (1976)Google ScholarPubMed.

40. Ibid at 19-20.

41. Ibid at 26-27.

42. Ibid at 48-49.

43. Sullivan, Kathleen M, “Political Money and Freedom of Speech” (1997) 30 UC Davis L Rev 663 at 679Google Scholar.

44. Cole, David, “First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance” (1991) 9 Yale L & Pol’y Rev 236 at 237Google Scholar.

45. FEC v Massachusetts Citizens for Life, 479 US 238, 257 (1986)Google ScholarPubMed.

46. Ibid at 258.

47. Austin v Michigan State Chamber of Commerce, 494 US 652 (1990)Google ScholarPubMed.

48. Ibid at 660.

49. Nixon v Shrink Missouri Government PAC, 528 US 377 (2000)Google ScholarPubMed.

50. Ibid at 401(Breyer, J, concurring). In Randell v Sorrell, the Court struck down Vermont’s contribution as being too low because challengers were not provided “enough resources for meaningful competition in competitive elections.” 548 US 230, 262 (2006).

51. Gottlieb, Stephen E, “The Dilemma of Election Campaign Finance Reform” (1989) 18 Hofstra L Rev 213 at 229Google Scholar.

52. McConnell v FEC, 540 US 93 (2003)Google Scholar.

53. Soft money refers to funds that were not subject to FECA’s amount limitations and disclosure requirements. Issue advertising could be funded by soft money provided that specific words of support or oppositionwere avoided. The use of issue advertising was yet another way in which campaign finance laws were circumvented.

54. McConnell, supra note 52 at 143.

55. Ibid at 150.

56. Ibid at 666.

57. See Canada Elections Act, RSC 1985, c E-2, §§ 259.1(1), 259.2(2)Google Scholar. After the 1988 election cycle, Parliament created the Royal Commission on Electoral Reform and Party Financing, also known as the Lortie Commission. Parliament’s enactment of third party spending limits was based upon the Lortie Commission’s recommendation that limits on independent spending promoted electoral fairness. See Royal Commission on Electoral and Party Financing, Final Report: Reforming Electoral Democracy 332 (Canada Communications Group 1991)Google Scholar.

58. National Citizens’ Coalition v Canada (AG) (1984), 32 Alta LR (2d) 249 (QB); Somerville v Canada (AG) [1996], 184 AR 241, 266.

59. Libman v Quebec (AG) [1997] 3 SCR 569 [Libman].

60. Ibid at para 1.

61. Ibid at para 14.

62. Ibid at paras 2, 27.

63. Ibid at para 18.

64. Ibid at paras 35, 85.

65. Ibid at para 28.

66. Ibid at para 29, quoting R v Keegstra, [1990] 3 SCR 697 at 763-64, Dickson CJC [emphasis in Libman removed].

67. Feasby, Colin, “ Libman v Quebec (AG) and the Administration of the Process of Democracy under the Charter: The Emerging Egalitarian Model” (1999) 44 McGill LJ 5, 8, 31-32Google Scholar.

68. Libman, supra note 59 at 596.

69. Ibid at para 47.

70. Ibid.

71. Citizens United v FEC, 130 S Ct 876, 913 (2010)Google Scholar.

72. Although the Court had struck down expenditure limits for individuals in Buckley v Valeo, it did not touch the spending bans on corporations and unions. Citizens United, which was a non-profit corporation, produced a film entitled “Hillary: The Movie” that it wished to release as a “video on demand” through a digital cable provider. The release of this documentary would have violated BCRA section 203 which prevented corporations and unions from making independent expenditures from their general treasury funds to support or oppose a candidate. Citizens United wished to pay the cable fee from its general treasury funds. Although the documentary contained no express advocacy, the FEC found that the video was the functional equivalent of express advocacy.

73. Hasen, Richard L, “ Citizens United and the Illusion of Coherence” (2011) 109 Mich L Rev 581 Google Scholar; Issacharoff, Samuel, “On Political Corruption” (2010) 124 Harv L Rev 118 Google Scholar.

74. Citizens United, supra note 71 at 914-16.

75. Hasen, supra note 73 at 616.

76. FEC v Wisconsin Right to Life, 551 US 449 (2007)Google Scholar.

77. Kang, Michael S, “The End of Campaign Finance Law” (2012) 98 Va L Rev 1 at 4Google Scholar. Kang advances a theory of “reverse hydraulics” under which as a result of Citizens United, money flows to alternate pathways where there is little regulation or disclosure. Ibid at 5.

78. Briffault, Richard, “Corporations, Corruption, and Complexity: Campaign Finance After Citizens United “ (2011) 20 Cornell J L & Pub Pol’y 643 at 670Google Scholar.

79. Dorf, Michael C, “The Marginality of Citizens United “ (2011) 20 Corn J L & Pub Pol’y 739 at 740Google Scholar.

80. Citizens United, supra note 71 at 904 (quoting Buckley, 424 US at 48-49).

81. Ibid at 970.

82. Hasen, supra note 73 at 598-99. Kathleen Sullivan also argues that although Justice Stevens’ dissent avoids the language of equalization, his discussion of the rationale reveals an egalitarian impulse. Sullivan, Kathleen M, “Two Concepts of Freedom of Speech” (2010) 124 Harv L Rev 143 at 148Google Scholar.

83. Citizens United, supra note 71 at 975-76.

84. Sullivan, supra note 82 at 145. Sullivan’s two categories—free speech as liberty and free speech as equality—are the same as the conventional “libertarian” and “egalitarian” approaches to free speech.

85. Ibid.

86. James Gardner argues that the Court has adopted an extreme “anti-regulatory absolutism” that bars all regulation. Gardner, James A, “Anti-Regulatory Absolutism in the Campaign Arena: Citizens United and the Implied Slippery Slope” (2011) 20 Cornell J L & Pub Pol’y 673 at 675Google Scholar. Mark Alexander argues that money in politics is the driving force of political inequality, and should thus be treated as a modern version of vote dilution. Alexander, Mark CMoney in Political Campaigns and Modern Vote Dilution” (2005) 23 Law & Ineq 239 at 241Google Scholar; Alexander, Mark C, “ Citizens United and Equality Forgotten” (2011) 35 NYU Rev L & Soc Change 499.Google Scholar

87. Tokaji, Daniel P, “The Obliteration of Equality in American Campaign Finance Law (And Why the Canadian Approach is Superior)Moritz College of Law Public Law and Legal Theory Working Paper Series No. 140 at 1 Google Scholar.

88. Hasen, Richard L, “ Citizens United and the Orphaned Antidistortion Rationale” (2011) 27 Georgia State Univ L Rev 989 Google Scholar.

89. Briffault, Richard, “On Dejudicializing American Campaign Finance Law” (2011) 27 Ga St U L Rev 887 at 913Google Scholar.

90. Harper v Canada, 2004 SCC 33 Google ScholarPubMed [Harper].

91. Ibid at para 62, citing Feasby, supra note 67.

92. Ibid.

93. Ibid.

94. Ibid at para 93.

95. Ibid at para 66.

96. Ibid at para 121.

97. Ibid at para 4.

98. Ibid at para 7.

99. Ibid at para 35.

100. Ibid at para 35, McLachlin CJ & Major J (dissenting).

101. Ibid at para 19.

102. Ibid at para 2.

103. R v Bryan, 2007 SCC 12 Google ScholarPubMed [Bryan].

104. Ibid at para 2.

105. Ibid at para 133.

106. Ibid at para 14.

107. Ibid at para 35.

108. Cameron, Jamie, “Governance and Anarchy in the s 2(b) Jurisprudence: A Comment on Vancouver Sun and Harper v Canada “ (2005) 17 NJCL 71 at 95Google Scholar.

109. Bredt, Christopher D & Finlay, Margot, “ R v Bryan: The Supreme Court and the Electoral Process” (2008) 42 SCLR (2d) 63, 77Google Scholar.

110. Ibid at 80.

112. Smith, Bradley A, “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform” (1996) 105 Yale LJ 1049 at 1077CrossRefGoogle Scholar; BeVier, Lillian R, “Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform” (1985) 73 Cal L Rev 1045 at 1080CrossRefGoogle Scholar; Sorauf, Frank J, Money in American Elections (Glenview: Scott Foresman & Co 1988) at 62 Google Scholar.

113. Dawood, Yasmin, “Electoral Fairness and the Law of Democracy: A Structural Rights Approach to Judicial Review” (2012) 62 UTLJ 499 CrossRefGoogle Scholar; Feasby, Colin, “Constitutional Questions About Canada’s New Political Finance Regime” (2007) 45 Osgoode Hall LJ 513 Google Scholar; Manfredi, Christopher & Rush, Mark, Judging Democracy (Peterborough, Ont: Broadview Press, 2008)Google Scholar; Rush, Mark & Manfredi, Christopher, “From Deference and Democracy to Dialogue and Distrust: The Evolution of the Court’s View of the Franchise and its Impact on the Judicial Activism Debate” (2009) 45 Sup Ct L Rev (2d) 19 Google Scholar.

114. Dawood, supra note 113, at 556-61.

115. Ibid at 504.