Both before and after the Senate Judiciary Committee’s hearing on a constitutional amendment on campaign finance, most of the press coverage understandably went to the dueling appearances of Senators Reid and McConnell. Somewhat lost were the statements delivered by Jamin Raskin and Floyd Abrams.  This is a shame. Each ably represented their opposing views, and when compared and contrasted, their statements bring out large issues in the campaign finance debate and the sources of sharp, enduring disagreement. Among those seemingly unbridgeable differences: what is “reasonable” to expect from the government in regulating political spending?

But here, first, is how each chose to make his case:

Jamie Raskin

Professor Raskin appeals strongly to a sense of things gone wrong, very wrong. His case is built on intuition and emotion: strong verbs, adjectives and adverbs flow throughout his testimony:

• “Bulldozed” (what the Court did to the wall between democracy and plutocracy)

• “Took a sledgehammer to” (what the Court did to the contribution limits in McCutcheon)

• “Gargantuan” (the checks CEOs will write without regulatory controls)

• “Breathtaking sleight of hand” (the Court’s opinion in Citizens United)

• “Ear-splitting levels” (the volume of speech paid for by the rich)

• “Startling” (the Arizona public financing case)

• “Amazingly” (the Court’s decision in that case)

In Raskin’s view, the politics of the country is soaked in money; the wealthy have been granted the chance to buy up elections and government; and in Citizens United and other cases, the Roberts Court is enabling this sad state of affairs, attacking the “wall protecting democracy from plutocracy.”  The only defense is the constitutional amendment empowering Congress to put “reasonable regulation” of political money beyond the Court’s nullifying grasp.  Raskin suggests changes to the proposal, such as a preamble setting out purposes in broad terms: “the advancement of democratic self-government, political equality and the protection of the integrity of the government and the electoral process.”

Floyd Abrams

Floyd Abrams answers with a starkly different reading of constitutional and political history.  He argues that CU is not a break with precedent but entirely consistent with it; that in Court majorities in the past, the liberal members—such as Justices Warren, Black and Douglas—stood where Roberts and his allies on this issue stand today. Abrams notes that the amendment before the Committee would be exceptional, the only time so far in our history that First Amendment protections afforded by judicial opinion would have been narrowed by constitutional change. If this is done, he adds, it would be based on supposition and speculation, not on actual evidence of the plutocratic threat Professor Raskin describes.

“Reasonable”

Raskin and Abrams  are in part  arguing over whose position is most “reasonable.” An amendment like the one before the Committee, Raskin contends, could be written to impose only “reasonable” limits.  Floyd Abrams cites Mills v. Alabama, 384 U.S. 214, 220 (1966) for the proposition that “no test of reasonableness” can save a law that criminalizes speech for or against a candidate for public office.

Now it appears that Professor Raskin judges the reasonableness of regulation by the extent to which, as he sees it, money has come to dominate politics.  Desperate times call for desperate measures, he might say. The imminent danger of plutocratic control in a society in the grip of vast inequalities might move notions of “reasonableness” farther than would otherwise be the case.  Floyd Abrams does not share Raskin’s apocalyptic vision of the problem, and so cannot agree that the solution Raskin offers is “reasonable.”

These conflicting understandings of reasonableness have another dimension, brought out by Abrams’ reliance on Mills. The Court in that case struck down a state statute barring any person—in the particular instance, a newspaper—from publishing an appeal for or against a candidate on the day of an election.  The state defended the restriction as “reasonable”: it was one day in duration, as voting was taking place, when there might not be time for a last minute charge (or argument) to be answered.  It was reasonable then in these terms: limited in scope, modest in purpose, and impartial in application.

There are two objections to this claim of reasonableness.  Abrams provides one, holding that certain principles of free speech are absolute and must be protected against even the best-intentioned limitations.  For the Mills Court, the right was one to argue for your candidate (or against her opponent) any time, or for the press to do so without any temporal limitation. Abrams is probably right that any plaintiff, not just the press, would have won the case before the Mills Court.

But another objection is that the limitation struck down in Mills was not “reasonable” if seen in one light rather than another—that is, it was not limited in scope, or modest in purpose, or necessarily impartial in application.  Behind the limitation is an assumption about the need to police the fairness of political speech.  One concern here is that the unscrupulous will sneak up on their adversaries perhaps with a bit of last-minute “dirt,” and the public might be taken in, deprived of the benefits of a response from the side under attack.  And so the question becomes whether it is “reasonable” to expect the government to take on this role.

The view that government should and does have this capacity was later expressed in McCain-Feingold’s advertising restrictions and mandated “stand by your ad” disclaimer. It somehow routinely makes its way into perceptions of the “corruption” Congress should have the authority to prevent.  And it will certainly have a place in constructions and applications of an amendment intended, in Professor Raskin’s terms, to  serve “the advancement of democratic self-government, political equality and the protection of the integrity of the government and the electoral process.”

Pinning hopes on a requirement of “reasonableness” in the pursuit of these aims might seem futile. To accomplish these goals, Congress would have to act in bold strokes. The question is whether this is a mission properly entrusted to it or, put another way, whether it is reasonable to give legislators this assignment at all.