Madison's Music

by Burt Neuborne

  American judges are fully capable of recovering the music in Madison’s democracy-friendly First Amendment, just as they have been capable of developing judge-made rules governing the separation of powers and American federalism. The United States Constitution rests on three structural pillars: separation of powers between the legislative, executive, and judicial branches of government; principles of federalism allocating power between the state and federal governments; and Madisonian democracy providing for robust, egalitarian self-government. It is tragic that the Supreme Court has been willing and able to forge a constitutional jurisprudence of federalism and separation of powers, despite the lack of explicit guidance in the constitutional text, but has shied away from giving constitutional meaning to the textual protection of democracy that is the essence of Madison’s First Amendment.

  When cases such as Bush v. Gore, Crawford, and Citizens United are viewed through the lens of Madison’s democracy-centered narrative, they are revealed as judicially imposed democratic disasters. Cutting off the Florida recount at the insistence of five Republican justices resulted in a judicially imposed Republican president. Forcing poor voters to obtain a voter ID in a political system like Indiana’s, where voter fraud is unknown, is merely a cynical device to suppress their vote. Finally, unleashing unlimited electoral spending by for-profit corporations exacerbates the already excessive power exercised by the superrich over our political life. From a democracy standpoint, it can’t get much worse.

  Properly read, Madison’s great First Amendment poem to democracy would never accept a judicially imposed president, the cynical disenfranchisement of the weak, the elimination of contested legislative elections, or the rule of “one dollar, one vote.”

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  The Democracy-Friendly First Amendment in Action

  Remember that Madison’s First Amendment narrates the odyssey of a democratic idea, (1) born in the conscience of a free citizen protected against government interference by the Establishment and Free Exercise Clauses and proceeding through: (2) freedom of speech (the public articulation of the idea); (3) freedom of the press (mass dissemination of the idea to the general public); (4) freedom of assembly (collective action on behalf of the idea); and (5) freedom to petition for a redress of grievances (insertion of the idea into the formal processes of democratic lawmaking). Remember, as well, that Madison’s Ninth Amendment authorizes American judges to use a disciplined mix of text, analogy, and necessity to recognize nontextual rights in the “equity” of the First Amendment. That’s just what Justice Harlan did when he recognized the existence of nontextual protections of freedom of association and freedom of secular conscience immanent in Madison’s constitutional text.

  MADISON’S FIRST AMENDMENT RIGHT TO VOTE

  When you put Madison’s carefully structured textual depiction of democracy in the First Amendment together with his Ninth Amendment grant of power to judges to use the equity of the statute to define nontextual rights needed to make the process work better, the result is judicial recognition of a First Amendment right to vote. We should replace or at least supplement the equality-based approach to protecting democracy used by the Supreme Court for the past fifty years with a First Amendment–based constitutional right to vote, run for office, and receive fair legislative representation. The Supreme Court has often recognized the rhetorical relationship between voting and the First Amendment—often by referring to the right to vote as a precondition to the enjoyment of all other rights. It has even tiptoed up to treating the right to vote and to run for office as rooted in the First Amendment.1 But the Court has never formally treated voting as the ultimate act of political expression and association. Instead, it has clung to equality as the only constitutional basis for enforcing rights to participate in the democratic process. That should not, however, prevent the current Court from rethinking the relationship between the text of Madison’s First Amendment and a constitutional right to participate in the democratic process. Equality-based protection is useful, but it’s no substitute for an individual First Amendment right to vote. Billie Holiday was right: “Momma may have, Poppa may have, / But God bless the child that’s got his own.”

  Once the internal rhythm of the First Amendment is understood as the story of a democratic idea that is born in a free conscience (Establishment and Free Exercise) and moves through articulation (Speech), dissemination (Press), collective action (Association and Assembly), and formal presentation to lawmakers (Petition), a First Amendment right to participate in choosing the lawmakers is precisely the kind of implied right that should be recognized as part of the equity of the First Amendment. As we’ve seen, the Supreme Court has already used the Madisonian safety net built into the Ninth Amendment to recognize nontextual First Amendment rights to freedom of secular conscience and freedom of association, nontextual Fourth and Fifth Amendment mandates to exclude unlawfully obtained evidence and involuntary custodial confessions from criminal trials, nontextual rights derived from the Fifth and Sixth Amendments requiring the government to prove each element of a crime to a jury beyond a reasonable doubt, and an extratextual reading of the Due Process Clause of the Fourteenth Amendment as imposing most of the Bill of Rights on the states. In recent years, the Court has recognized nontextual privacy rights in personal autonomy and gender equity derived from the Due Process and Equal Protection Clauses in order to protect a right to contraception,2 a woman’s right to choose whether to bear a child,3 an extended family’s right to live together,4 a human being’s right to express his or her own sexuality,5 and a person’s to enter into intimate personal relationships like marriage.6 Finding a nontextual constitutional right to vote latent in the equity of the First Amendment’s disciplined narrative of democracy in action should be a judicial walk in the park.

  Shifting to a First Amendment–based protection of democracy would have immediate practical benefits. Most important, it would eliminate the need to prove improper purpose in challenging the constitutionality of government regulations that make it harder to vote or to run for office. The Supreme Court has made it clear that First Amendment speech protection is triggered by effect, not purpose. Under a First Amendment right to vote, there would be no more democratic fiascos like Louisiana’s decades-long defense of a multimember judicial district for New Orleans designed to prevent the election of a black supreme court justice, or like Florida’s mysterious reenactment of racist felon disenfranchisement laws to preserve a statewide Republican voting majority. No more games in Republican-controlled states where cynical legislators impose onerous voter ID laws, proof-of-citizenship requirements, or other restrictive laws governing the voting process that just happen to depress the vote among the poor. No more long lines at voting booths in poor neighborhoods likely to vote Democratic. Each such assault on democracy would violate the Madisonian First Amendment right to vote.

  Not only would a shift to a First Amendment right to vote get rid of the need to prove improper purpose; it would also substitute First Amendment strict scrutiny for the often toothless standard of review currently used in many Fourteenth Amendment equality-based democracy cases. When the Supreme Court ruled that spending money was a form of pure speech, it sentenced campaign spending reform to a lingering death, because under First Amendment strict scrutiny any interference with pure speech requires the government to prove: that a “compelling” problem exists requiring immediate regulatory action; that the proposed government regulation will actually solve or abate the problem; and that no “less drastic means” short of government censorship is available to deal with the problem. Imagine what voting rights law would look like if every government regulation that depressed voter turnout or the ability to run for office had to run the gauntlet of First Amendment strict scrutiny. No more eleven-month waiting periods to vote in a major party primary. No more bans on cross-endorsements by minor parties. No more cynical hurdles designed to keep third parties and independents from challenging the legally reinforced major-party duopoly.
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br />   Instead, a robust democracy that dances to Madison’s music.

  ENDING “ONE DOLLAR, ONE VOTE”

  As we’ve seen, from the standpoint of democracy, campaign finance law can’t get much worse. Billionaire oligarchs have a First Amendment stranglehold on the electoral process. Wealthy ideologues on the left and right dominate the electoral agenda. Huge for-profit corporations are guaranteed the power to pour unlimited sums into buying political influence. Public officials and candidates spend most of their time trolling for support from wealthy donors, who often view campaign contributions as economic investments. Political investors can now choose whether to buy influence directly, with checks to specific leaders, or indirectly, as independent spenders. Election winners repay their wealthy supporters with excessive political influence; election losers mortgage their souls trying to persuade investors to bankroll their comebacks. Giant loopholes in the disclosure rules let wealthy individuals and corporations spend huge sums in secret to manipulate unwitting voters, and well-meaning legislators are forbidden to break the economic stranglehold of the rich by using the most efficient form of campaign subsidy—matching public funds tailored to the sums raised by privately funded opponents.

  Bad as things are, though, there is a beam of sunlight. The law that has generated our appalling current campaign finance structure rests on constitutional quicksand. Five members of the Supreme Court have brought American democracy to this parlous state by tearing the Free Speech Clause from the rest of the First Amendment’s carefully structured text and reading it as though it were a freestanding legal command without context or roots in a comprehensive First Amendment devoted to the celebration of democracy. Worse, the five Republican justices distort the very slice of the text they claim to revere, treating the Free Speech Clause as if it read “Congress shall make no law . . . abridging speech.” By ignoring the words the freedom of, the five Republican justices have turned the clause into a simplistic deregulation device that disables the government from protecting the very democracy the Free Speech Clause was intended to serve.

  The term “the freedom of speech” as used in Madison’s First Amendment has no intrinsic literal meaning. Like any abstract legal concept, it must be given precise meaning by human judgment. That’s why threats, blackmail, extortion, false statements causing harm, obscenity, and “fighting words” are treated by the Court as outside “the freedom of speech.” Once the governing text is expanded from seven to ten words, and once the ten words are read as part of Madison’s great poem to democracy, there is absolutely no reason to include the act of spending unlimited sums of money to influence the outcome of an election as within “the freedom of speech.” At a minimum, it would be demoted to “communicative conduct,” entitled to significant First Amendment protection but subject to good-faith regulation aimed at advancing two substantial government interests in making democracy work—reinforcing the commitment to political equality recognized in the “one person, one vote” cases and preventing the reality or appearance of corrupting the political system.

  Reinforcing political equality is unquestionably a substantial government interest. The Supreme Court has suggested that it is even “compelling.” Once the act of spending money is demoted from “pure speech” to “communicative conduct,” the government would be permitted to place reasonable limits on campaign spending without being obliged to exhaust impracticable “less drastic means,” like subsidies, especially now that the Supreme Court has placed the most efficient form of subsidy—matching grant—constitutionally off limits. Actually, using subsidies instead of spending limits would become much easier, because under a democracy-friendly First Amendment it would be impossible to characterize a matching campaign subsidy system aimed at leveling the electoral playing field as a “penalty” on wealthy candidates.

  Reasonable campaign spending limits would also prevent electoral corruption in at least two important ways. It would prevent “independent” supporters from pouring so much money into a campaign that the winner can’t help feeling a sense of obligation (and a hope of future support) that causes her to tilt in the direction suggested by the huge supporter. We already recognize such a possibility in the contribution process. That’s why the size of a contribution is limited. We already recognize such a possibility in the context of judicial elections. That’s why judges can’t sit on cases involving folks who spent a fortune to get them elected. The same reasoning calls for reasonable limits on all campaign spending by wealthy independent donors.

  Equally important, a generous campaign spending cap would end the current campaign spending spiral that drives each candidate into a never-ending effort to raise funds out of fear that he will be outspent by an opponent. As we learned during the Cold War nuclear standoff with the Soviet Union, such a spiral forces both parties into frenzied action designed to avoid yielding an advantage to the other, even when neither wishes to act. A generous spending cap would permit both sides to relax and to focus on substance once the cap was reached. It would also eliminate the potentially corrupt bargaining power exerted by a supporter as a campaign draws to a close and the candidate gets really desperate. In fact, a generous spending cap would make all contributions fungible, allowing a candidate to spurn support from a donor seeking undue influence because the cap could be achieved using alternative sources.

  Demoting campaign spending from pure speech to communicative conduct would not deprive it of all First Amendment protections. No regulation could be “viewpoint driven” in an effort to weaken disfavored speech. Spending limits could not be unreasonably low. But reasonable efforts to cap campaign spending at a generous level (far higher than the unreasonably low ceilings imposed in the 1974 act that were struck down in Buckley) would ensure vigorously contested political campaigns without surrendering our democracy to the tender mercies of the superrich.

  REDISCOVERING THE IDEA OF CONTESTED LEGISLATIVE ELECTIONS

  Madison’s democracy-friendly First Amendment would also provide a desperately needed antidote to the epidemic of political gerrymandering that has sucked the air out of our state and federal legislative elections. Widespread gerrymandering at every level of American government has made it almost impossible to topple a legislative incumbent powerful and wily enough to tailor-make a district that can’t be lost. Constant gerrymandering of legislative districts virtually guarantees the reelection of incumbents and gives the party in power a disproportionate share of the legislative seats. In the 2012 elections for the House of Representatives, for example, Republicans won a comfortable 234–201 majority, despite being outpolled nationally by more than one million votes in House races. While a slice of the extra one million votes was in urban districts overwhelmingly won by Democrats, as many as 15 seats of the Republican 33-seat margin are traceable to the adroit drawing of congressional district lines to maximize Republican voting power. And 2012 wasn’t an aberration. Using the criteria of the American Political Science Association, partisan gerrymandering by both parties has resulted in a House of Representatives where only about 40 seats—fewer than 10 percent of the membership—are chosen in a genuinely contested general election. No wonder the House is so dysfunctional. Most members don’t have to worry about being reelected. No wonder so many people don’t bother to vote in midterm “elections.” They know almost all of the outcomes in advance.

  Under the current equality-driven constitutional law of democracy, five members of the Supreme Court insist that there is nothing judges can do to prevent politicians from slicing and dicing the electoral map to ensure the reelection of incumbents, moving voters around like pawns on a chessboard to maximize the advantage of the party in power. In order to know whether political line drawing is unconstitutionally unequal, the majority justices argue, you need an objective baseline from which to measure whether the political gerrymander at issue deviates too far from representative fairness. The five Republican justices claim to be unable to find such a baseline.

  The four Democr
atic justices argue that a fair baseline exists, but they can’t agree on what it is. Several of them argue that a reviewing court could ask whether the statewide outcome of an allegedly gerrymandered legislative election roughly reflects the political preferences of the electorate measured by statewide pre-election party registration figures. If the deviation is too great—say, more than 10 or 15 percent—a court could order that the electoral lines be redrawn to more fairly reflect the political complexion of the electorate. The five Republican justices reject such a test, arguing that pre-election registration figures are an inadequate measurement of a postelection fair political outcome because the very essence of democratic politics is change. Alternatively, the Court could focus on particular districts and ask whether the only plausible explanation for the district’s configuration is an effort to maximize the voting power of supporters of one political party. The Supreme Court majority rejects such a test because, in the Court’s view, politics plays an inevitable and appropriate role in the apportionment process (for example, ensuring minimal representation for long-established interest groups like farmers, industrial laborers, or adherents of a hopelessly outvoted major party), making it impossible to know when politics is exerting too much influence.