Free Speech and Democratic Institutions

David Schultz is an election law expert who teaches at Hamline University and the University of Minnesota law school. (He and I also co-authored my last book, a Law and Policy textbook.) When the Court handed down the McCutcheon decision, he took to his own blog to analyze it. 

On one level the Supreme Court yet again issued a decision in which it examined one issue about American politics and elections–the role of money or the right of individuals to make political contributions–without adequately considering the broader impact of that decision on the actual performance of American democracy.  The Court treats in isolation one aspect of our political democracy–the right of an individual to spend money–without considering other competing values and how they come together to form a more complete theory about government, politics, and elections.  Yes individuals may have a right to expend for political purposes, and such an act may further an important value of free speech, but that is not the only act and value that must be furthered or considered in a democracy.

Democratic theorists such as Robert Dahl point out that a theory of democracy includes several values, such as voting equality, effective participation, enlightened understanding, control of the agenda, and inclusion.  For each of these values there is a need to construct institutions that  help sustain them or give them meaning.   Effective participation includes institutions that create for example free and fair elections, opportunities for non-electoral participation, and competitive parties. However, none of these values operates in isolation; a real concept of democracy requires that one understand how they interact, coming together to form a fuller theory of American Democracy.

Someone once said that the problem with the contemporary Supreme Court is that none of the Justices ever held elective office–that we’d be better served if one of these brilliant jurists had ever had to run for county sheriff.

It may be time to sign on to the effort to amend the constitution.


  1. The current Supreme Court provides a strong argument against lifetime appointments; they wield far too much power over this entire country to be appointed for life by political cronies.

  2. what are the hazards of opening the process to amend from fringe groups with crazy intentions?

  3. But money really is speech, isn’t it? All the people who posted here this week about how they won’t shop at Walmart because it’s so evil — isn’t that using your money as speech?

  4. “Article III of the Constitution; Section 1. ….The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

    OK, Sheila; what does this mean “…shall hold their Offices during good Behavior,…” What constitutes good Behavior, does this term somehow translate to “lifetime” and who decides what good behavior entails? Where is it written that these judges shall be appointed vs. being elected and that these appointments are for their lifetime? Is there a process to remove these judges for malfeasance of office? Handing elections of public officials over to the highest bidder appears to be malfeasance to me…and probably to thinking Americans who are fed up with current political conditions and recent decisions by these judges which go against our voting rights as protected by Amendments. As the SCOTUS is the highest court in the land; who has the power to bring charges against them and/or oversee these charges? Who judges the judges?

  5. There is “Freedom of Speech” that is the ability to say what you want within certain limits. Speech is free (no charge) only within the sound of my voice. Once I begin to amplify my speech through pamphlets, advertising in the media -newspapers, TV or Internet it is no longer “Free.” There is a cost to the amplification of speech. Advertisers, and companies know there is a charge or cost for speech. We know we can be charged millions of dollars to place an ad during the Super Bowl. I would think anyone would expect Toyota to limit it’s advertising budget to equal KIA’s.

    What the Supreme Court has said in effect is politics has an advertising budget, and no limits can be placed on it. The effect has been and will be the 1% will have a far bigger impact on the advertising of their own selected candidates. Years ago I read a report that one variable and perhaps the most important in elections, was if you out spent your opponent you had a very high probability of being elected.

    The Web Site provides a dramatic show of force Money has in politics. As the article points out 435 House Elections were held in 2012. Candidates who out spent their opponents won 95% on these elections.

  6. Sheila’s comments were very enlightening on Hobby Lobby — if businesses are to be given the same legal rights as individuals, then should business owners also be personally responsible for business liabilities? How much freedom to be personally liable do you suppose they’d want? Democracy needs a plaintiff.

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