Tomorrow the Supreme Court will hear a case examining the First Amendment questions perpetually raised regarding the McCain-Feingold campaign finance reform. It is peculiarly intriguing for its involvement of a campaign movie critical of Hillary Clinton, but the primary point of contest is the familiar one of the ongoing debate over the bill, whether campaign expenditures fit into the constitutionally protected category of free speech.
While Supreme Court case law has permanently fixed this as the necessary question to resolve, any passionate proponent of the libertarian ideal ought to wonder why we have limited ourselves through our own Constitution. Opponents of the bill, myself included, offer compelling arguments that campaign expenditures function in the process in the same manner as speech, and are in essence an expression of thought; the history of the First Amendment does in fact hold that government attempts at limiting the means by which expression is made violates that right.
Though modern Americans conceive of the right to free expression as a protection against censorship, particularly in the form of efforts to silence specific perspectives or opinions that are offensive to or critical of the authorities, in its origin and today the legal right is broader. With respect to press, where historically financing has always been necessary, freedom consisted of the institution existing independent of government reach; the absence of intentional censorship or the presence of content neutrality were not excuses. The First Amendment right to a free press was most clearly aimed at prohibiting prior restraint, which often involved censorship in the American colonies, but in its purest state took the form of print licenses or taxes on printing or advertising. In 1936 these methods were confirmed as unconstitutional.
Explicitly, one would be hard pressed to argue that limits on campaign contributions can be categorized as prior restraint, but the goal of the two is the same. Both serve to use government to control the flow of information in the political sphere, and both are deceptively benign because of their viewpoint neutrality. Attempts to limit the revenue of media of expression breaches a barrier erected between government and the press, and campaign finance certainly can be labeled as such.
Ultimately, however, only the perversion of our thinking that ignores the Ninth Amendment makes this effort at persuasion necessary. Campaign finance reform is unconstitutional because our system forbids the dangerous assumption of power that is a government controlling a private entity’s use of their property. A similar misapplication of the Bill of Rights occurs with respect to the right to privacy, which is said to live implicitly within several other important Amendments.
Some of the Founding Fathers who were skeptical of a Bill of Rights were so because they thought it might be misconstrued as an all inclusive statement of those rights possessed by citizens; the realization of this fear is confirmed in both the campaign finance debate and the privacy debate. The right to spend one’s money freely and the general right to privacy are protected in the American constitutional system because they are natural negative rights, and the protection of those rights is central to the individualism our government was founded to foster. This principle underlies our Constitution, and the Bill of Rights serves that principle, and not itself, as the end of our government. In a time when the invention of rights is popular, the rediscovery of this mode of thinking would serve our discourse well.