I must confess that the McCutcheon case that was decided by SCOTUS yesterday rested on an area of law with which I wasn’t all that familiar. One of the big questions yesterday’s ruling raised for me was: if campaign contributions are Bill of Rights-protected speech, then under what rationale can they be regulated and limited? Is the mere temptation to government corruption or possibility of corruption enough? Shouldn’t the standard be higher than that, since freedom of speech is such an important liberty? And what would the legal argument be behind an answer of “no”?

The articles I read yesterday did not answer my question. But today I struck pay dirt in this offering at Volokh by David Bernstein. It goes into the background of the Progressive (i.e. leftist) attitude towards freedom of speech and the entire doctrine of natural rights embedded in the Constitution.

Here’s an excerpt, but it’s well worth reading the whole thing [emphasis mine]:

Progressives identified freedom of speech as a civil liberty to differentiate it from what Progressive understood to be the obsolete, individualist, natural-rights based liberties of the American past. While activist government was inimical to such rights as liberty of contract and property rights, it arguably buttressed a Progressive case for freedom of speech. According to Progressive advocates of constitutional protection for freedom of expression, the more active a role played by government, the more important it is to ensure that public policy is subject to vigorous and uninhibited debate. Such debate not only could bring important considerations to light, but also could serve as a check on those who would use public power for private gain, which in turn would lead to better public policy, which in turn would create a welcome demand for even more government.

In 1927, Justice Brandeis penned an extraordinarily influential concurrence supporting constitutional protection for freedom of speech in Whitney v. California. Consistent with his Progressivism, Brandeis defended freedom of speech primarily on the instrumental ground that it promoted free and rational public discussion, essential for the American people to govern themselves. By focusing on the social interest in democratic self-government, Brandeis attempted to differentiate freedom of speech from individualist rights such as liberty of contract and other traditional assertions of natural rights against the government.

Later on, freedom of speech was of special interest to the left because in the 60s it protected radical speech from infringements and helped the left to promulgate its message. But when it is in the left’s interest to restrict freedom of speech, that idea of general social interest can be used to limit speech.

And that’s what Justice Breyer—joined by the other liberal justices—tried to do in his McCutcheon dissent. Here’s Bernstein again:

…[In recent years] opposition to First Amendment protection of campaign donations has become a significant “cause” on the liberal left. It’s not hard to see why: the legacy mainstream media, Hollywood, academia, publishing, the legal profession, the mainline churches, and the arts, i.e., almost all of the leading opinion-making areas of American life, are dominated by liberals (though conservatives dominate talk radio, evangelical churches, and have Fox News). The one place where the playing field is more or less level is in campaign spending. Limit campaign spending, and left-leaning opinion-makers utterly dominate American political discourse.

But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?

Justice Breyer’s dissent today shows the way, as he revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses. And once we identify those “First Amendment interests,” we must limit freedom of speech to ensure that they are advanced…

Just to make sure he’s not being too subtle, Breyer goes back to the source, Justice Brandeis, citing his opinion in Whitney for the proposition that freedom of speech is protected because it’s ”essential to effective democracy.”

Further showing off his affinity for the Progressive statism of a century ago…, Breyer turns constitutional history on its head, by declaring that the purpose of the First Amendment was not to prevent government abuses, but to ensure ”public opinion could be channeled into effective governmental action.”

A more stark demonstration of the difference between left and right could hardly be devised. And we are just one justice away from having Breyer’s vision realized.