In his recently published criticism of Stanley Fish, Russell Jacoby returns to Fish’s position (in Jacoby’s words) that “there are no abstract principles outside of society and history.” “Making It,” The New Republic (September 2, 2013 at 36). This position, Jacoby reminds the reader, accounts for Fish’s insistence “that there’s no such thing as free speech”—that speech has no worth independent of context and any value it is assigned is the outcome of a political struggle. See, e.g. Stanley Fish, There’s No Such Thing As Free Speech (1994) at 102. (“Free speech is not independent value but a political prize….”)

Fish has applied his view of speech rights to the field of campaign finance jurisprudence, and it has led him to picture a Court now in conflict between a majority of Justices wedded to an absolutist view of free speech rights, and those in the current minority who better appreciate the “the force of history” and the “psychology and sociology of political actors.” Stanley Fish, What is the First Amendment For?, February 1, 2010, http://opinionator.blogs.nytimes.com/2010/02/01/what-is-the-first-amendment-for/?_r=0
The first is a “principled” view, which Fish does not mean to praise, and the second a “consequentialist” perspective; the chasm between the two is unbridgeable. Fish writes: “The consequentialist and principled view[s] of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side.”

Does Fish have this right, correctly perceiving the development and structure of the current impasse?

In 2010 and 2011, Fish laid out his views in commentaries about Citizens United and the Arizona public financing case, Arizona Free Enterprise Club v. Bennett. Id.; What does the First Amendment Protect?, July 4, 2011, http://opinionator.blogs.nytimes.com/2011/07/04/what-does-the-first-amendment-protect/?ref=opinion In both cases, his preference is for the dissent on the Court. He is a “consequentialist”; he cannot agree that speech can be valued apart from its consequences. The majority elevates “speech” to the plane of pure principle—to a “religion” or a “categorical imperative.” The dissenters believe that the speech imperiled by regulation must give ground to the state’s interest in preventing corruption. Consequentialism v. libertarianism, history and politics v. principle: Fish can see no hope for constructive exchange between these points of view.

Certainly it is true that the opposing camps in the campaign finance debate have little patience for each other’s arguments. And there is anger and frustration in the air. But the Fish account of the Court majority’s stance seems oversimplified. He misses, for example, an apparent difference between the preoccupations of two key members of the conservative majority on this issue: Chief Justice Roberts and Justice Kennedy.

Kennedy, it could be said, mostly closely writes in the vein criticized by Fish. He expresses the fear that government intrusion into the speech marketplace will tamp down the exchange of ideas on which democracy depends. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 409 (Kennedy, J., dissenting) (Corruption may be a problem but the Constitution provides an “easy” answer: “open, robust, honest unfettered speech….”) Speech is valuable without regard to source, whether corporate or some other: the value resides in the quality of the ideas given full space to win the public debate. Citizens United v. FEC, 558 U.S. 310, 341 (2010). Perhaps less of an absolutist than Justice Thomas, he is still an absolutist in Fish’s terms. And Kennedy has, of course, suggested that the entire Buckley framework is unworkable. Nixon at 407 (“The melancholy history of campaign finance in Buckley’s wake shows what can happen when we intervene in the dynamics of speech and expression by inventing an artificial scheme of our own.”)

Justice Roberts has authored—and chosen to offer—the opinions more concerned with the means by the which the government enforces the balance Buckley struck between speech and anti-corruption interests. Whereas Justice Kennedy is most associated with his declaration in Citizens United that “the Government may not suppress political speech on the basis of the speaker’s corporate identity,” Citizens United at 365, the Chief Justice has made famous (within the circle of those who care) the tersely stated determination that “enough is enough”—that Congress has gone well beyond the boundaries of its authority in plugging “soft money” loopholes in its regulatory program. Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449, 478 (2007).

In WRTL, Roberts criticized the expansive reading asserted by the government in McCain-Feingold to limit issue advertising intended to influence elections, or having that effect. Under its theory, as Roberts characterized it, the government’s authority to police the line between contributions and expenditures necessarily included wide power to keep express advocacy contained, and to protect the law from evasive maneuvers through devices like “sham” issue advertising. This “prophylaxis-upon-prophylaxis approach to regulating expression [that] is not consistent with strict scrutiny.” WRTL at 479.

Roberts later concluded that in designing its public financing law, Arizona overstepped its authority in similar fashion. The matching fund provision supplied compensatory financing to candidates facing unlimited independent expenditures or free-wheeling spending by self-financed candidates. Roberts detected a purpose at odds with the allowances of Buckley doctrine—an impermissible measure to “level the playing fields” between candidates. But he also rejected the state’s proffered justification of this exercise of power as necessary to make the law work—to reassure candidates that if they enrolled in the pubic financing system and consented to spending limits, they would be offered a measure of protection against being overwhelmed by the rich opponent and the independent spender. For even if the State may feel that the matching funds provision is necessary to allow it to “find[ ] the sweet-spot” and “fine-tun[e] its public funding system to achieve its desired level of participation without an undue drain on public resources, [this] is not a sufficient justification for the burden.” Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2827 (2011) (internal citations and quotations omitted).

And the problem for Roberts is centrally one of the imagined consequences if the state prevails and can build on this foundation of broadened authority:

By the State’s logic it could grant a publicly funded candidate five dollars in matching funds for every dollar his privately financed opponent spent, or force candidates who wish to run on private funds to pay a $10,000 fine in order to encourage participation in the public funding regime. Such measures might well promote participation in public financing, but would clearly suppress or unacceptably alter political speech. How the State chooses to encourage participation in its public funding system matters….”

Id. at 2828. This is the same type of reservation expressed by Roberts in WRTL. The State’s chosen remedies for real problems of enforcement or administration may be the most effective, but this will not improve, and it may fatally complicate, their prospects for favorable constitutional review. While a fair amount of speech that sways voter choice may fall outside the grasp of regulators, there is only so much the regulators can do about it.

So while Kennedy is asking for Buckley to be reconsidered, Roberts professes to accept, though he draws tightly, the lines laid out in Buckley; but he has little use for legislative claims of additional authority required to block “circumvention” and make its laws work. The question of paramount interest to Kennedy is Congress’s core constitutional authority to regulate speech, whereas, for Roberts, it is also in major part the constitutional limit on Congress’s enforcement of campaign finance legislation on the books.

Of course, Justice Kennedy has also written critically about the risks of the regulatory project, drawing the conclusion that “circumvention” is inevitable and the law’s response is both ineffective and oppressive. Citizens United at 334-336. But whereas Kennedy has arrived at the judgment that Buckley was wrongly decided, Roberts seems in his writing to place questions of implementation ahead of, or certainly side-by-side with, doubts about first principles.

It is possible, of course, that when in the end the issue is joined, Roberts will stand with Kennedy and decide that the Buckley regime has run its course. He may believe that as Chief Justice, he does well to decide each case as it comes and avoid leading the challenge to established precedent—though his vote with the majority in Citizens United puts this theory in question. But on the face of things, Fish is wrong to say that all members of the majority are simply “absolutist” in their First Amendment jurisprudence—a point he concedes in part by acknowledging that Justice Thomas edges out Justice Kennedy in the absolutism sweepstakes.

To question the Fish view is not to nitpick. Much of the argument in recent years, notably in the fighting over McCain-Feingold, is about just this question of enforcement—about how far the government can go to make the law meet the expectations that some reform advocates would set for it. This is the argument that has had the antagonists talking past each other, ever more frustrated and unable or unwilling to find common ground. First Amendment “absolutism” is only part of the story.