Mangling the First Amendment in the same way as the Commerce ClauseMike Rappaport

It is widely recognized that, at least since the New Deal,the Commerce Clause has been mangled by the Courts and expanded beyond itsoriginal meaning. The method for doingthis is very old, and was criticized by Jefferson and Madison during the debateon the First National Bank. The methodinvolves drawing one inference after another to make something seem likecommerce. So possession of a gun near aschool involves commerce, because the gun will affect education, and educationwill ultimately affect commerce. This isa tried and true way of eviscerating a constitutional restraint.

Not surprisingly, this method can be used in other areas,but people don t recognize it as often. In the most recent campaign finance case, FEC v. Wisconsin Right toLife, Chief Justice Roberts suggests that the dissent is attempting to pileinference upon inference (without, of course, the analogy to the CommerceClause). Here is my analysis, which is less flexible than Roberts s.

1. The First Amendment allows the government to prohibitbribes of legislators based on the interest of preventing corruption. From this noncontroversial statement, we havemove four steps to get to Justice Souter s position in the dissent.

2. The FirstAmendment allows the government to prohibit campaign contributions that are notbribes in the interest of preventing the appearance of corruption.

3. The FirstAmendment allows the government to prohibit independent statements by privateparties that expressly advocate for or against a candidacy, on the theory thatsuch independent statements might be viewed as being similar to campaigncontributions.

4. The FirstAmendment allows the government to prohibit independent statements by privateparties that do not expressly advocate for or against a candidate, but refer toa candidate during the period before an election, if such statements are the functionalequivalent of express advocacy. Onceagain, the theory is that such independent statements might be viewed as beingsimilar to campaign contributions.   

5. Finally, the FirstAmendment allows the government to prohibit independent statements by privateparties that do not expressly advocate for or against a candidate, but refer toa candidate during the period before an election, even if such statements are notthe functional equivalent of express advocacy. Same theory as immediately above. It is only here that the Chief Justice gets off the train.  (The Chief Justice concluded that thestatements were not the functionalequivalent of express advocacy because one could reasonably conclude that theyare something other than an appeal to vote for or against a specificcandidate.  

Justice Scalia s concurrence appears to get off at 4 andJustice Thomas in the past has gotten off after 1.