In July, September, October and December, 2020, expressing my postmillennial idealism, I posted commentaries on the case decided by the U.S. Supreme Court in 2010, Citizens United v. Federal Election Commission, 558 U.S. 310, with further commentaries on related cases. Citizens United, its antecedents and its progeny, deal with political and election finance, but more broadly with self-government in the real world. This is a continuation of those commentaries, addressing three cases which preceded the Citizens United decision in the years from 1982 to 1976.
If the cases are dated, the political and social problems confronted are not. For the churches to act together, there are political problems to solve – by which I do not mean contemporary American politics, but rather how Christians are organized to reach a goal. Idealism moves and solves problems to pursue an idealistic vision – a vision presented by God. The court cases are like problems in a workbook. The solutions suggested are for the seven churches, the Christian community. We expect the discussion will be useful for our pilgrimage, our spiritual road trip.
Federal Election Commission (FEC) v. National Right to Work Committee, 459 U.S. 197 (1982). At the time this case was decided, the Federal Election Campaign Act (FECA) prohibited corporations and labor unions from making expenditures or contributions in connection with federal elections. However, these entities were permitted to set up separate segregated funds to use for political purposes. The true ‘separation’ between the entity and the separate fund to be administered was flimsy, but that was the law. A particular organization, the National Right to Work Committee (NRWC), a nonprofit corporation without capital stock, set up a segregated fund, the Employee Rights Campaign Committee (ERCC). There were additional FECA rules, administered by the FEC, about how and from whom ERCC was allowed to raise money.
NRWC as an organization sat squarely in the conservative, anti-union camp. Right-to-work is a phrase which means you don’t have to join or pay dues to a union as a condition of having a job, even in work setting which is organized under a union regime as the exclusive bargaining agent. Not surprisingly, NRWC had a political adversary, another lobbying group which was liberal and pro-union, the Committee for an Effective Congress (CEG). CEG was well aware of what ERCC was doing to raise funds; political adversaries are often keenly interested in what their adversaries are doing, and this case was no exception – CEG thought that ERCC was breaking the rules concerning solicitations for funds, particularly, to whom such solicitations could be made.
CEG filed a complaint against ERCC with the FEC. CEG alleged that ERCC had violated FECA by soliciting funds by means of a mass mailing – sending solicitation letters, seeking new contributions, to about 267,000 people who had at one time or another in the past contributed money to NRWC. CEG alleged that these persons solicited in the mass mailing were not the NRWC’s members, stockholders, executive or administrative personnel or their families. FEC rules allowed for solicitation of funds by committees who administered these separate funds to members. (The legal fight in NWRC is going to be over what membership means.) The FEC investigated ERCC’s mass mailing and concluded that the pertinent election finance rules had been violated, so the FEC brought an enforcement action in federal court.
To cut through the chaff to understand what the FEC’s real complaint was – that an overtly political group had sent an overtly political fund-raising letter to a group of people who had, in the past, shown an interest in the political positions of this group by previously donating money. The FEC had discovered this because another overtly political group had told them. I hope you’re shocked. As the Captain-Inspector in the movie Casablanca might put it – political fund-raising?! Here, at Rick’s place? I try not to be caustic, but . . .
The relevant provision of the federal election law at issue was a provision known as 441(b). 441(b) would allow solicitations, but only to ‘members’ of a corporation. The United States Supreme Court analyzed the term ‘member,’ since the meaning of the word is fluid. Does giving money to an organization make you a member? Do you have to get a little membership card to be a member? If the corporation organizational charter says that it shall have no members, does that element of state corporate law decide the issue of membership for purposes of federal election law? Federal law governing political funding outreach efforts has a different purpose than state corporation law. Such questions led to a discussion of the purposes of 441(b).
The original impulses to this component of FECA legislation were not as irrational as they appear now. The issue of membership was tied to allowable solicitation for contributions because, historically, in some corporate and union settings, there was nothing really voluntary about someone’s expected financial response to a solicitation for contributions, whether that solicitation came from management or labor. Reaching backward in time to discuss this case, NRWC, invokes the complex and bitterly-contested landscape of the societal conflict which swirled around labor organizing and legal controls on management and labor unions – that subject has a long history of its own, worthy of many posts and commentaries (e.g., in an ideal Christian community, would there be organized labor unions?), beyond my scope here.
Justice Rehnquist delivered the opinion of the NRWC Court. The first purpose of 441(b), he announced, was ensure that substantial aggregations of wealth amassed by the corporate form of organization should not be converted into political “war chests.” Id. At 207. You will note that in 1982 NSWC was not a corporation that had amassed vast wealth – it was not Exxon or DuPont or GM or IBM. It was an ordinary conservative political lobbying group. NSWC’s adversary in its political life was a similarly-situated pro-union political lobbying group, CEG. The Supreme Court was in outer space. Christians need to do better than this, when we monitor, criticize, or regulate political activity. Who are the real players here? That is a question that we are to ask ourselves in a faithful, sane manner.
The second purpose of 441(b) was to protect individuals who have paid money into a corporation or union for purposes other than the supporting a particular candidate or political position. Id. at 208. Underneath this judicial concern and legislative purpose is another assumption about corporations and unions that has a political history. The assumption is that they are like political mirror images of each other, that the rights of one ought to be balanced with the rights of the other. If one, a corporation or a labor union, is capable of doing bad things then we ought to prevent such bad acts and at the same time we ought to prevent the other from doing similar bad acts. Bad acts which ought to be stopped might include using my investment money or my union dues, to support some political positions or candidates whom I actively oppose, or at least don’t care about.
A Brief Digression into Unions and Old-Fashioned Union Militancy
There is an analogy between corporations and unions, but only on a superficial level. The analogy works like this: in order to have a job, I have to join a union, let’s say the Teamsters, because it has an affiliate union, called the Warehousemen’s Union; and I found a job unloading boxcars in a warehouse for a subcontractor to a major department store chain which has stores throughout the San Francisco Bay area. My union dues are mandatory deductions. I can complain about my union dues, but in 1971, when I did this, I wasn’t going to get over $4/hour for doing manual labor, unless a union had bargained for that right. Maybe in 1971 I don’t like the political positions that the Teamster’s Union takes, or maybe I don’t like their union leaders, but, tough. If I don’t like it, all I can do is quit my job, which naturally has pretty sobering ramifications.
When I buy stock in a corporation, according to the Supreme Court (and Congress), it’s the same thing. If the corporation uses money for political purposes, maybe I don’t like its political positions or its leadership, but if I want to own the stock, tough. If I don’t like it, I sell the stock. To protect against some of these bad acts by the leaders of such organizations, Congress through its election finance law made the corporations and the unions set up separate segregated funds and then set up rules for how the funds can operate, who they can solicit, some of whom are called ‘members’ for purposes of a solicitation.
The analogy and Congress’ legal model breaks down because corporations aren’t like unions – and the nonprofit corporation NRWC is vastly different than General Motors. Purchasing stock in a for-profit publicly traded corporation, with the ability and right to sell it and buy a similar amount of stock shares or value in another for-profit publicly traded corporation, is nothing at all like giving up my job. In the purely political arena, large unions and large corporations may look as if they ‘set off’ one another in roughly equivalent fashion. That is what politicians see and that is how they think. But that political preoccupation, who’s-got-the-election-finance-money-and-how-are-they-raising-it perspective, has little to do with ordinary, day-in, day-out life. In ordinary life, mandatory union membership to hold your job is nothing like owning a few shares of stock.
Justice Rehnquist, however, thinks regulation is justified and sensible; his rationale reaches back to Congressional enactments and Supreme Court cases approving them. The Congressional enactments are oriented around the disliked possibility of taking my good money, out of a union or a corporate treasury, to support candidates I dislike. He recites the legal precedent, First National Bank of Boston v. Belotti. That case said that the creation of a political debt would corrupt elected officials; Belotti is talking about corporations creating such political debts. The United States v. UAW case did the same for unions (United Auto Workers), “preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” Id. at 208. Rehnquist recited the history of legislative control, pointing out the balancing of legal controls on corporations and unions, controls enacted by Congress. Rehnquist concluded, “we accept Congress’s judgment that it is the potential for such influence [the bad influences] that demands regulation.” Id. at 210.
The Congressional election finance regulations never worked with respect to corporations vis-à-vis unions. In part, the regulations failed because unions themselves have lost political power over the last five decades; the regulations surely couldn’t work now, not on the basis that there is a reasonable correspondence of economic power between corporations and unions. There was a time in the history of this country when union-corporate struggles were bitter, violent and prolonged, but that hasn’t been true for about fifty years. One may remember the strike of the air traffic controllers in 1981 during Ronald Reagan’s first term of office as the last gasp of old-fashioned union militancy – but FECA, the election finance regulatory law, was drafted with those old conflicts in mind.
There are currently efforts to conduct union organizing at Google, but whether it gets off the ground nor not, we’re not going to see old-fashioned union militancy. No one today argues that any union is the equal of Apple, Google, Facebook, Amazon, Microsoft, etc. No one in management could physically pick up and move the blast furnaces of U.S. Steel in the early 20th century, but in the early 21st century you can get computer programming done anywhere in the world. The significance of union organizing at Google would be social pressure, similar to that which is exerted on social media. No one thinks that Google would have any great difficulty in replacing 500 or 5000 programmers. Google management might want to be thought of in a certain favorable way – but that’s not what the old union militancy meant. Today we have corporate endorsement of fashionable political movements. Anyone who thinks such corporate endorsements will substantially change social relations among people who are not highly-paid information workers is naïve, to put it charitably.
Corporate political control and involvement can be substantial, even overwhelming, but it isn’t exerted through financial contributions or expenditures. Corporate control is exercised through cultural influence, implemented through administrative and technical control of search engines and the results they generate (or are permitted to generate), website accessibility, web platforms and associated payment mechanisms, and communication networks. No one bothers to put anyone in jail for voicing undesirable opinions. The powers-that-be just boot them out of the app store and modify their search engine results. Undesirable voices are hindered from their web presence and lose their payment channels; they are technically ‘quieted.’ NRWC is an election finance law case that is looking in the rearview mirror at labor law and labor strife to justify its restraints on what would otherwise be very ordinary political fundraising. Since then, economic and political times have changed by several orders of magnitude.
Christians want a better world, constructed from principles that are not so brittle and quickly dated. We are suitably advised by the passage of time. We want people to be engaged, not suppressed. Hence,
We Christians Request: That we find and look at the people and organizations who are really involved in political conflict. If the real players involved in a political or legal contest are relatively equally situated, maybe nothing needs to be fixed or regulated. Where there are plausible arguments on either side, then individual Christians may be participants, but need not intervene through their churches to stage-manage outcomes. Not every societal conflict needs a prophetic voice. Not every dispute prevents us from expressing Christian love. Labor law is highly dependent on attendant economic circumstances which change. Looking for specifically ‘Christian’ answers to problems in labor law, or labor law as applied to political funding rules, is unproductive. When the football team of the local Catholic High School plays the football team of the local public high school, the town’s parents have no trouble rooting for the team their son is playing for, but genuinely loving the players of both teams.
We Christians Expect: If some Christians are members of unions and some Christians are in management, that is a problem we can work without invoking scriptural argument. Their respective political lobbying groups should be permitted reasonable latitude to operate. We expect that the churches think and act as a community composed of members with differing economic interests, views and expectations. We acknowledge individual or local economic interests may be in competition without taking sides as churches. Heavy-handed management is often a cure worse than the disease; there is an associated cost to bureaucratic anything. If an element of election finance law is backwards-looking, trying to regulate a balance that doesn’t need balancing, then we should discard that element. We expect to show good judgment in deploying the power and understanding the limitations of even Christian government.
First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). Despite all the talk about the Citizens United case unleashing corporate wealth, the corporation involved in the Citizens United case was financially speaking, a bit player, as are most of the corporate litigants in the Supreme Court cases concerning election finance. This case, Bellotti, is an exception to that rule; First National Bank of Boston (the “Bank”) has since been dissolved in the inexorable wave of corporate and banking acquisitions and mergers. But at the time of the Belotti case, the Bank really did have powerful financial resources. The Bank’s litigation in this case was joined by corporations active in Massachusetts which also had large economic resources and market power. The Bank wanted to employ its money in connection with a referendum in Massachusetts pertaining to a possible personal (not corporate) state income tax.
The Bank opposed the tax. There was an election finance law in Massachusetts which prohibited, in fact, made it a criminal offense, for corporate entities to make contributions or expenditures to influence a vote, “other than one materially affecting any of the property, business or assets of the corporation.” The state legislators allowed corporations and banks to swing into the political fray where corporate property, business or assets were involved. But the Massachusetts legislators wanted to make clear, that a proposed personal state income tax was not such a question, involving corporate property, business or assets. If the referendum or political question had to do only with personal income tax, the banks and the corporations would be violating the state’s criminal law, if they attempted to sway the outcome with political expenditures or contributions.
Laying underneath these legislative enactments there was, as one might expect, a hotbed of political maneuvering with a lengthy history. The taxation proposal in the case, in 1976, was the fourth time a personal progressive state income tax had been brought to the voters in a referendum. Political forces in favor of the state income tax wanted banks and corporations to shut up and stay out. Political forces against such taxation wanted the help of banks and corporation to participate in opposition. The banks and corporations thought their rights were being violated.
The tax, anti-tax battle lines had been in place for years in Massachusetts; what constituted a ‘fair debate’ was very much in the eye of the beholder. The point would be made in the Citizens United case years later, and had been made Justice Scalia, pointedly dissenting in the Austin case: government cannot be trusted to assure, through censorship, the ‘fairness’ of a political debate. The typical posture of angry political adversaries toward any organized group with resources to oppose their favored measure is, essentially – ‘it’s only fair when you shut up’- and so it was in Massachusetts.
Justice Powell delivered the opinion of the Bellotti court. His discussion moved quickly to the question of whether business corporations have First Amendment rights. Id. at 770. This question sounds serious at first, but it is misleading. In practice, as the Supreme Court cases have demonstrated, there are nearly innumerable organizations, with innumerable owners, members, officers, directors, participants, shareholders, who have differing purposes (business, political, social, charitable, religious), differing resources and differing structures to match those purposes. The broad spectrum of ‘corporations’ is reflected in almost uncountable differing sizes and sources of finance – all of which go to or by the name ‘corporation.’
The question ‘do corporations have 1st Amendment rights?’ cannot be meaningfully answered, any more than the following question can be meaningfully answered: ‘should randomly selected groups of different people, having different purposes and resources, have constitutional rights?’ Well you may ask – which groups, and what purposes? (Let’s practice with this hypothetical – may all red-headed people who have criminal records, but basically they’re pretty nice people, be allowed to purchase firearms, if they promise to be really, really, careful?)
Justice Powell didn’t like the form of the question either, for a different reason. He pointed out that the 1st Amendment not only protects the rights of parties in litigation, but also broader societal interests. The question in Bellotti was over the imposition of a personal, progressive state income tax; something at the heart of democratic concerns.
“If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy. . . The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”
Id. at 777. Speech concerning public affairs is the essence of self-government, explained Justice Powell. Id., n. 12. It’s politically healthy – we as voters want to hear the opposing sides, to evaluate the conflict of opinions. The British philosopher John Stuart Mill made a similar point in his 1859 treatise, On Liberty (“But it is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect.”) Every generation sees a specious argument about why freedom of speech is a good idea, but not just ‘that speech’ (whatever ‘that speech’ may be at the moment), not just now.
Corporations as mere creatures of state law
There is another argument advanced to limit corporate rights, based on the premise that corporations are the creatures of state law and can have no greater legal rights than those accorded by the particular state of their incorporation or registry. There is some plausibility to that argument – the corporate charter only ever exists at the pleasure of the state legislators who enable it by enacting appropriate law. Why can’t those legislators grant a more limited set of rights to corporations than those which would be enjoyed by an individual, natural citizen?
But corporations as a form of enterprise organization have become supple in capturing a vast range of human relationships for purposes of stability, guidance and reporting. In states where they are good at it, like Delaware, they keep their corporate law and their courts of equity, where emergency corporate legal matters are heard on an expedited basis, quick on their feet, flexible and attentive to a mercurial corporate clientele. Corporations are varied in purpose and flexible in application; they are useful to widely differing groups. Corporations are too ubiquitous across every nook and cranny of our nation, in a variety of social and business expressions, to ever be roped back into the barn of pure and only explicitly-granted state corporation law again.
Justice Powell makes one rather technical point concerned with campaign finance regulation and control. The plaintiffs in Belotti were banks and publicly-traded corporations, as both were regulated in their political conduct by Massachusetts law. Even if we want to engage the topic of ‘substantial aggregations of wealth amassed by the corporate form,’ the banks in question were what are called ‘national associations’ – often abbreviated ‘N.A.’ The banks were not formed under state corporation law at all, whether the state law of Massachusetts or Delaware or some other corporate-friendly state, but rather under federal banking law. If we wanted to be hyper-technical, a discussion about corporations organized under state corporate law has little to do with a discussion about banks organized under federal banking law.
Even if we would want to control money flowing into the political process, if we were convinced by the arguments of those who want to restrain organized contributions and expenditures for political purposes, it is unproductive to attempt that control based on the organizational form and identity of the donor/participant. If there were any purpose to doing so, as their attorney I could take the same three guys who are today a general partnership active in Pennsylvania, make them a ‘C” corporation on Tuesday, an ‘S’ corporation on Wednesday, a limited partnership on Thursday and a limited liability company on Friday. Needless to say, they would be the same three guys, with the same political interests and inclinations, throughout the entire week.
Free speech, for corporations as well as individuals, affords “the public access to discussion, debate, and the dissemination of information and ideas.” Id. at 783. That is true for the public generally and for our Christian community. Free speech is about the rights of speakers and also about our rights as a community of listeners. Christianity is not a debate club, it is a holiness journey; we have one Lord, Jesus, whose word we trust to make this trip. But this is our action point – this is where we break off from the world as it lapses into conformity to the intellectual fashions of the day. Not only do we want to talk about our faith, we want to do so most at precisely those points where we disagree. It’s not for our benefit that we theologically or politically debate and differ; it’s so our hearers can get a sense of the full range of the issues, the proposed solutions, the ideas, the knowledge of God. Suppression of speech never gets that job done.
The Bellotti case directly addresses the ‘bad corporation’ theory of campaign finance regulation. Starting from reasoning that no one can dispute – that it is vital to preserve the integrity of the electoral process, prevent corruption, and preserve the individual citizen’s confidence in government – the defenders of corporate finance regulation then make the leap that corporations would exert an undue influence on a referendum vote concerning personal state income tax in Massachusetts. Chasing down ‘bad’ corporations achieves little in terms of preventing corruption or increasing citizen confidence. There are no limits to avenues for corruption. Confidence in government, like trust, looks to deeper issues than technical compliance with election finance rules, which are capable of being easily sidestepped or flagrantly evaded.
In Remembrance of an Old Oxford Man
In his concurring opinion, Justice Burger discussed the freedom of the press, which typically is corporately owned. He argues persuasively that there is no basis to sustain a view of the 1st Amendment which protects the freedom of the press, but which does not equally protect other people or organizations. The press “comprehends every sort of publication . . . the informative function is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.” Id. at 801. The “liberty of the press is no greater and no less than the liberty of every citizen of the Republic.” Id. at 802.
As Christians, we should be particularly sensitive to these issues, since the means to control the press historically, through licensing, censorship, indexes of prohibited books, taxes imposed through obligatory stamps and seizures of books, often were directed at censoring religious expressions and thought. The current academic attack on ‘hate speech’ has many currents and motivations, but at least some of them are plainly directed to suppress and silence historical and biblical Christianity. It is ironic that colleges and universities which began as seminaries, now suppress, stigmatize or ridicule the expression of Christian thought, moral and sexual standards, religious faith and political opinion. Perhaps we could hand the entire administrative staff and faculty of these schools over to the spirit of William Tyndale, B.A. Oxford, 1512, for instruction on what the phrase ‘hate speech’ really means. Tyndale was executed for translating and distributing the Bible; I daresay he would still tell you he doesn’t like censorship, no matter how plausibly its benefits are extolled.
A Brief Digression about Corporations and Free Passes to the Geisha House
In Bellotti, Justice White dissented. White distinguished between corporate managers, who he acknowledged have the right to use their personal funds for political activity, and the use of corporate funds for political activity, gathered by the corporation through its business and profit-making enterprises. It’s a distinction without much difference when accomplished in either case by those same corporate managers. His point was to separate the “personal or collective views about political and social questions” which the corporate managers have, from use of the corporate funds. Id. at 803. It’s difficult to see how this distinction would work with a Jeff Bezos, Mark Zuckerberg, Charles Koch or Michael Bloomberg, but the problem here is more conceptual than merely reciting the current list of richest Americans engaged in cultural or political influencing.
There is something appearing sensible, yet strange about the distinction White wanted to make. Corporations are fictitious entities – they never act, except by acting through their corporate executives and managers. For purposes of political activity or speech, it is difficult to find a real-world distinction between the chief corporate executives and their corporation if those executives are serious about influence and have the common sense of a ten-year old kid stealing cookies who doesn’t want to get caught.
For most purposes, the top executives are the corporation. Corporate Boards, which authorize the bonus packages for top corporate executives, are notoriously cozy with and pliable for these top corporate executives. Without corporate executives and managers speaking in their executive capacity, the corporation would have no voice on any issue at all, not even on issues such as banning altogether their business activities or imposing a tax rate of 100%.
No mandatory or prohibitory injunction issued by a court could ever be effective against a corporation, unless it acted against the executives and managers – invisible fictitious entities never speak for themselves in legal defense or obey or disobey injunctions. Fictitious entities never comply with or disregard any law or court order – only the corporate executives and managers acting for the corporation can defend, comply or disregard legal or judicial anything, for their corporation.
It’s surprising then to read a U.S. Supreme Court judicial opinion, such as Justice White’s, which disregards the overlapping identity of corporate managers and their corporations – this would not be a likely opinion to read in other legal contexts. If legal restraints against monopolistic practices or price-fixing are to be effective, they must be enacted against and enforced upon the corporate executives, managers and senior agents. That would be especially true in the sensitive and ambiguous arena of election finance expenditures and contributions by those who have effective managerial control of corporations. The prohibitions set forth in the Foreign Corrupt Practices Act (FCPA), 15 U.S.C. 78dd-1, prohibit certain types of corrupt conduct of corporate executives, managers and agents. It’s not an invisible, fictitious corporate ‘entity’ that hands out passes to the geisha house (and its not the Board of Directors either) – it’s the Executive V.P. of Sales & Marketing, seeking to make his potential customers so happy he gets their business orders for his corporation.
From the viewpoint of ordinary corporate law, by which the conduct of corporations is restrained or legally guided in countless ways, the distinction White attempts is not capable of meaningful enforcement. If the distinction White attempts were taken seriously in every context, then if the marketing V.P. got caught lining the pockets of foreign government officials to ‘facilitate’ an order for military hardware, it would be purely the bad act of the V.P. himself and have nothing at all legally to do with the corporation. But that is hardly the case (the V.P. was probably not using his personal funds to do the necessary heavy pocket-lining); the FCPA declares or criminalizes such conduct by tracing the action of the V.P directly back to the corporation and assigning legal culpability to the corporation.
A few minutes searching on the internet will demonstrate how broad the reach of the FCPA is; there is no way to conceptually reconcile the breadth of this set of corporate criminal statutes with the distinctions Justice White otherwise wanted to make. Which is why Michael Bloomberg gets to use as much money as he wants for his political interests; he just moves the necessary money back and forth across an invisible accounting line, then spends it. In terms of developing a dynamic vision for the future of the Christian community, artificial distinctions based on corporate roles don’t help.
A Brief Digression into Proper Balance and the Summer of Love
Justice White wanted to talk about striking the proper balance between state regulatory interests in controlling corporate conduct, and 1st Amendment rights. White accused the Court of substituting “its judgment as to the proper balance for that of Massachusetts.” Id. at 804. But that is always what happens when a court finds the basic protections of the Constitution have been invaded by a statutory enactment – in every single circumstance, where a court strikes down a legislative act because it contravenes the Constitution, that court necessarily ‘substitutes its judgment’ for that the legislative body which enacted the unconstitutional legislation.
But if White’s statement is conclusory, the argument is important – two necessary tools of self-government, even in an ideal world, are entailed by the right for a court to substitute its judgment for a legislature, and the acknowledgment that employing that first tool requires judicial restraint, a proper balance. That restraint, that balance, is itself the second tool.
Justice White gets positively weird at one point in his opinion, when he begins to characterize essential First Amendment rights as a means of “self-expression, self-realization, and self-fulfillment.” Id. (?? Like wow, man, we’re back in the ‘60’s! You do your thing, I do my thing, and if we meet in our self-actualizing, self-realizing good karma sort of way, it’s beautiful – makes me nostalgic.)
Well, the age of Aquarius never quite dies. Would he think that talking to himself in a mirror was self-fulfilling communication? Extended comment on Justice White’s views on self-realization (he rambles on with the Constitution as his fig leaf), is unnecessary. If each of us, at Justice White’s implied suggestion, is ‘doing one’s thing’ to advance self-realization and self-expression, then ‘my thing’ is religious – seeing an assembly of Christian churches act as a community to make a millennial and ideal world prior to the return of Christ. I daresay there may be some conflict in vision between Justice White and myself. Self-realizing individualists find the only god worth worshipping is an individual – which coincidently and conveniently turns out to be – lo and behold! – the individual himself. You can’t split every difference down the middle.
When Justice White comes down from his Fritz Perls-trip, he touches upon the point of comparable legislation controlling union expenditures, referencing the labor law case Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which has since been overturned. To summarize, White argues if we can stop unions from using mandatory union dues for partisan political activities, why can’t we stop corporations from using their funds from partisan political activities?
One short answer is that legislative attempts to stop either interested corporations or unions from making contributions and expenditures (whether directly or indirectly) into the political arena have never been successful. Another short answer is that unions are not like corporations and (especially at the time of Abood), joining the union in a closed-shop union environment was mandatory. If you wanted to work in a closed-shop, you had to join the union. Owning shares of a corporation never partakes of that level of compulsion. To use a West Side Story metaphor, making me join the Jets street gang and fight with them is a lot different than allowing me to buy an ownership share in the local candy store. Hence,
We Christians Request: That freedom of speech always be valued in terms of its importance to Christian witness. Freedom of speech is critical to evangelizing, to informed self-government, to public and individual rights, including the right to listen and evaluate as well as to speak. We request that when engaged in political activity, organizations (including corporations) act with restraint but without artificial restraints. Most speech occurs on behalf of an association or organization of some type. We request Christian leaders take responsibility for their organizations and speak for their members, when so moved by the issues of the day. Where organizations do not act with restraint, then legislatures may impose the necessary restraint (on conduct, not on speech). Courts will consider whether or not to intervene by substituting the court’s judgment for the legislature’s judgment; that judicial decision should be characterized by restraint. Churches have a dual role, both as participants in issues in controversy and as light on the conduct of the contending players, with church leadership acting for their churches and congregations in both capacities.
We Christians expect: To hear what is right, although it may take some time and effort to discern what is right. We expect to hear how the conflicting parties will relate to each other in Christian love after the Lord has determined what is right (whatever passage of time that may entail) and the conflict has quieted. We expect the churches to remain cognizant of the fact that when they act in the political arena, they are no longer judges or referees. When Christians take to the street to demonstrate because the issue is that important, other Christians are called to referee and monitor the conduct of the demonstrators. We expect both types of Christian free speech: that which advocates, and that which impartially evaluates and guides. We expect to see Christ leading, the light of the world, as we go. We expect to take part in our community of faith for purposes spiritual and temporal, acting dynamically. We do not expect to be offended or indignant because someone disagrees.
Buckley v. Valeo, 424 U.S. 1 (1976). Next to Citizens United itself, Buckley is the case that set the standard and structure for discussions of money in politics. Buckley involved numerous parties and came to numerous conclusions, including: (i) provisions limiting individual contributions to campaigns were Constitutional; (ii) provisions limiting expenditures by candidates on their own behalf were not Constitutional; (iii) provisions limiting total expenditures in various campaigns were not Constitutional; (iv) provisions limiting independent expenditures on behalf of a candidate were not Constitutional; and(v) reporting requirements under the Federal Election Campaign Act were valid. The majority opinion was issued Per Curiam, meaning the whole court joined that opinion, but several justices joined in part and dissented in part and filed individual opinions.
The initial argument of the litigants who filed the appeal was straightforward – limiting the use of money for political purposes constituted an unlawful restriction on communications in violation of the 1st Amendment, since “virtually all meaningful political communications in the modern setting involve the expenditure of money.” Id. at 11. The Court noted that the constitutional power of Congress to regulate federal elections was established in the Constitution, so that the critical question was whether specific Congressional legislation interferes with 1st Amendment freedoms. Those freedoms were intended to assure the “unfettered exchange of ideas.” Id. at 14.
Acting as a group is Constitutionally protected. The 1st Amendment protects political association as well as political expression. Effective advocacy is enhanced by group association. Id. at 15. The Constitution guarantees the “freedom to associate with others for the common advancement of political beliefs and ideas, a freedom that encompasses the right to associate with the political party of one’s choice.” Id.
A Brief Digression into Whether Roseanne Barr is like Dalton Trumbo
So neutrally stated, such principles hardly seem controversial. But as recent cultural and political events and the recent election have demonstrated, in practice, the playing field gets muddier. What you can say and then how people may react to what you say, itself triggers conflicting opinions. There are two distinct poles to the argument which relate through a semi-permeable filter: what the government can lawfully do, and what private employers can lawfully do. What the government can do is controlled by explicit statutory or Constitutional law. That is the subject matter of Buckley. What private employers do is often controlled by a social consensus which may be in the hands of a small group of influential people. Can or should you be fired, if you showed up in Washington D.C. on a certain day in January, 2021 and posted photos of yourself on your Facebook page, is no longer a rhetorical question.
Explicitly, Buckley doesn’t take up the question of whether it is okay to fire people and terminate their employment for what they say or where there were on January 6, 2021. But if we are going to apply what we learn from Buckley to our goal of a better Christian community, then the ‘private employer’ question is more important. It’s a trick question, because no one wants to answer without knowing which people are getting terminated, what these bad people said or did, which side of the political fence are they on, what year is it. The answers in 1947 are different than in 2021.
Before answering, secondary, defensive questions arise: how do we feel about the group of people who assert their feelings are hurt or their rights are violated? Or who trespassed or destroyed property? What constitutes a threat? How about if someone subjectively feels threatened?
The questions are defensive because of partisanship. Under what circumstances do we attribute the bad acts of a few people to many people – the answers are partisan. When is trespassing, rioting – no answer provided, until we see the political landscape. When is rioting, insurrection – no answer provided, until we know which side of the political fence the rioters are on.
The actress Roseanne Barr was fired from her television show because her tweet about an aide to Barack Obama was “abhorrent, repugnant and inconsistent with our values” – so said the President of ABC in 2018. People who defend that firing will typically have a different response to the loss of employment of the Hollywood 10 as screenwriters in 1947 (do a Wikipedia search on Dalton Trumbo). The Buckley case doesn’t directly answer the question for Roseanne Barr in 2018 or the Hollywood 10 in the 1940’s. Yet, as Christians, what would we like our cultural norms to be, if we were not sure where in the mix of right-left controversy we were going to wind up in any given year? Usually, people talk about culture ‘leading the law’ – I’m going to suggest the reverse. The ‘law’ (whatever we might find it to be), ought to lead culture. So Buckley is more than just bare law, as Citizens United is more than just bare law.
Cultural values are built into the Buckley case. Only cultural expectations protect one’s employment with respect to the expression of belief or opinion. It’s not hard to lose your job these days. There are websites which list all the people who have lost their employment due to the cancel culture and given recent events, that list is going to expand. The loss of employment is the go-to remedy to inflict on bad speech or bad conduct. Regardless of courtroom legalities, the culture which develops, when people are at risk of being fired, stigmatized, canceled, marginalized or de-platformed (for reasons external to the performance of their employment duties), is not a culture we Christians want. The explanations as to why someone’s employment was terminated for external reasons are empty words, when the result is a culture of fear, of reprisal, of silence, of conformity.
That is no vision for the Holy City of our Lord, Jesus Christ. One obvious answer would be to stop firing people; or at least to consider more soberly what the effect is on the whole community, when loss of employment is wielded as a club. Jerusalem-from-above is characterized by faith, by the Spirit, not by political or intellectual correctness or conformity. Culture is squishy, like the monster ‘the Blob’ in the movie of the same name – it moves around unpredictably, grows without warning, gobbles up passers-by and the unsuspecting. Corralling our Christian culture behind stable legal fences protects our own social relationships from blob-like attacks of intellectual fashion and fad.
Another Brief Digression – this one, into Social Relationships and Associational Freedoms
Social relationships between groups count if we want to make a Christian society. Social relationships are necessarily social, not legal, but what the law protects is bone onto on which lay the flesh of culture and social relations. One way to improve those social relationships is by not calling for anyone to lose their employment or be forced to apologize for tweeting the wrong thing. It is un-Christian to demand such apologies while swinging the club of social humiliation. Another way is to not terminate employment for being in Washington D.C. on January 6, 2021. It is un-Christian to fire people for such reasons. Disapproved social media posts are dredged up and presented like the links of Marley’s guilty chain in Dickens’ A Christmas Carol.
Twitter accusations from a twitter mob, the furtive guilt of the wretched transgressor, his or her groveling apologies, disavowing past casual observations on social media or his participation in a demonstration, do not make a community we want. ‘Explain your reasons for feeling that way’ (even if such a stern request is necessary, if the social media post is that extreme) is a more productive response than ‘we read your Facebook post, and you’re fired.’ Fear, economic reprisal, conformity, public humiliation, cancel culture – that is the way of the world, the intellectual life of America today. Which is one reason why we Christians seek another city.
In its discussion of associational freedoms, The Buckley court noted that the right of association was a basic constitutional freedom. Id. at 25. Curtailing freedom of association was only acceptable if the State demonstrated a “sufficiently important interest and employs means closely drawn” to achieve its interests. The court recited three governmental interests: (i) prevention of corruption and the appearance of corruption; (ii) muting the voice of affluent persons and groups and thereby equalizing the ability of all citizens to affect the outcome of elections; (iii) acting as a brake on the “skyrocketing cost of political campaigns.” Id. The full answers to those concerns are discussed at length in the cases following Buckley, culminating in the discussion and decision of Citizens United.
The short answers to the Buckley court’s recitations are: (i) actual corruption is already illegal and criminal; the appearance of corruption can mean almost anything at all. It is so subjective that it resides almost entirely in the mind of the beholder, and in practice means more partisan hostility and hypocrisy. (ii) Muting the voice of affluent persons and groups is to act directly contrary to the entire purpose of self-government – all groups and persons act and ought to act within the political process to affect and achieve their political goals. That’s the point. Apart from the subjectivity of deciding who the affluent people and groups are, who apparently need to be suppressed for purposes of ‘equalization,’ having people influence government is basic to democracy.
As the recent elections demonstrate, successful funding of political campaigns organized around small donors have been highly successful. As to (iii), there have been no effective brakes ever imposed on the skyrocketing cost of political spending, yet life and even democracy goes on.
More on the Skyrocketing Costs of Political Campaigns and the Unfair Treatment of Billionaires
Concerning the governmental interest concerning ‘affluent persons,’ should government suppress the political activities of millions of donors who gave less than $100 to their preferred candidates in the last election cycle, because there are so many of them, and it’s not fair to the vastly outnumbered group of rich, affluent gazillionaires? Imagine Jeff Bezos, Mark Zuckerberg and Bill Gates complaining and marching around with picket signs, because it’s not fair – they’re so outnumbered by the $100 donors! (They could chant a slogan too, like bigger ballots for billionaires! – you know, something cool and catchy. It wouldn’t have to make sense.)
Acting as a brake on the “skyrocketing cost of political campaigns,” with $1,000 limits on certain contributions, is comical. The 2020 election cycle rang up about $14 billion in spending. What kind of legislative or judicial rulemaking are we about, if laws or administrative rulings are passed which become ridiculous within a short span of time? A Christian society should not be relying on rigid political or economic formulations for many reasons; this is an example of one of them.
Nevertheless, the Buckley court, writing in a kind of well-meaning haze (dazed and confused comes also to mind), decides that “under the rigorous standard of review established by our prior decisions” (You may laugh at the self-congratulatory and sententious tone of that prefatory introduction), “the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify . . . the $1,000 contribution ceiling.” Id. at 29. Well, anyway, that is an example of a Supreme Court ruling with a limited shelf life. Within weeks of the time this component of the Buckley decision came down, I daresay it was already being evaded and avoided.
To its credit, the Buckley court undertook a more serious evaluation of political reality in n. 33, p. 31. Taking into view all possible limitations on a candidate’s expenditures, including personal funds, contributions, and ceilings on total campaign expenditures, the Court realized it might be sustaining a legislative system which appeared to be fair to challengers as well as incumbents, but “the appearance of fairness, however, may not reflect political reality.” Id. (Yup, agree.) One reason for the hop-scotched, ‘yes to this, no to that’ decisional results announced in Buckley was that the accumulation of expenditure limits, spending and contribution, taken all together might well unreasonably benefit incumbents against challengers.
The Buckley court decided that it had invalidated enough of the ceilings (e.g., on independent expenditures, on the candidate’s expenditures from personal funds and on overall campaign expenditures), that the incumbents were not given an overwhelming advantage. If Citizens United court felt differently about it thirty-four years later, one cannot complain too long that the Buckley court was entirely irrational or unfair, if it weighed the balances a little differently.
Stepping back from piecemeal judicial decision-making and looking at the whole picture is a good thing, something we as Christians ought to be thinking about every day. The churches aren’t in the business of making election law. But to the extent that the Christian community is influential, then adding up the pieces of various laws to see how the whole thing works is the right thing to do. Other Christians might work the addition problem differently and come to a different conclusion. We create the community by discussing our differences in the light of our common goals and faith. Strident warfare is something we can control because of that common faith, which the world cannot.
After justifying its affirmation of contribution limits, the Buckley court moved on to expenditure limitations, where the decision came down on the other side of Buckley’s flipping judicial coin. By making a conceptual distinction between contributions and expenditures, the court concluded that limitations on independent expenditures are unconstitutional under the 1st Amendment, whereas limitations on contributions were not unconstitutional. Whether there is a real-world, important distinction between contributions and expenditures in political election financing has been a knotty problem for the Supreme Court over the years. Rivers of black-robed ink have been expended discussing it, until Citizens United and Speechnow.Org knocked the stuffing out of the debate.
A Brief Digression on that Necessary Restraint of Political Power, and Breakfast
We talk about the 1st Amendment so much, it’s worth presenting it here in full:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Requested when the Constitution was first being debated, enacted in 1791, the first five words tell you that this Amendment is a restraint on Congressional power. The sovereign states which united to form the United States had, under considerable pressure due to a lack of a functioning central government, met in Philadelphia to convey certain delineated yet superior powers to a federal government, reflected in a written Constitution. Because the states were nervous about that conveyance of superior, centralizing power, having had negative experiences as colonists of Great Britain, they soon decided that a series of amendments would help restrain the conveyance of that power.
After a moment of thought, one may infer that Congress may well have been made up of patriotic American citizens from the various states, states just recently colonies of Great Britain, but those same newly-minted states and recently-declared U.S. citizens weren’t ready to French-kiss Congress yet. A healthy suspicion about political power when applied to religion, speech, assembly or the right to petition was everyone’s breakfast. The restraint isn’t on those engaged in such activities; the restraint is on Congress making laws about them.
My recital may seem obvious. Politically we started with a declaration of independence sustained by a military victory, then a voluntary conveyance of political power from the states to a federal government. Almost simultaneously we enacted an enforceable restraint on that federal power – if we are to build a better world arising from a Christian vision, we should not throw the baby out with the bathwater.
‘Enforceable’ has a different meaning in the context of a community of churches, but ordinary patience coupled with a clear witness can act to enforce restraints also (they went out from us because they did not really belong to us). Restraint on power has a different meaning in a religious context than a political context, but I like the word ‘restraint’ wherever I find it. A healthy suspicion about political power applied to fundamental freedoms, even in an idealized or religious community, still ought to be everyone’s breakfast.
We think often of Christian love in the context of the Apostle Paul’s recitation in 1st Corinthians ch. 13 – love is patient, love is kind. It does not envy, it does not boast, it is not proud. We don’t often think about Christian love in terms of adversarial politics – of frank communication, reasoned disagreement, respect for another’s rights, a restraint on pointless or provocative accusations, a commitment to disentangle our discussions from the world’s uncontrolled partisan animosities. We don’t often think of that as a call to holiness – but separating ourselves from partisan hatred, while acknowledging there are issues which require discussion and debate – is also a call to holiness. Any effort at reconciliation between the left and right, even among Christians in our country at this time, will require patience, holiness and restraint.
The Buckley court found ceilings on personal expenditures by candidates unconstitutional. There is no serious concern of undisclosed and undue influence from outside interests when a candidate is spending his own money. Id. at 53. Without that concern, the government’s interest in controlling such expenditures is vitiated (Congress shall make no law, etc.). A similar fate awaited restraints on overall campaign expenditures; for Presidential candidates, those limits were $10 million in seeking the nomination and $20 million for the general election. As the Buckley court notes: “The First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive or unwise.” Id. at 57.
What if Some Christians have more money for politics than others?
The wisdom of the foregoing suggests a thoughtful concern, an important application to our ideal Christian community. How would we feel, if some Christians in our community were spending much more money than others, to affect or effectuate political outcomes. Strong emotions are invoked regarding contemporary political issues (and Christians can be among the most hyperventilating and emotional). It makes sense to review our perspective before people start shouting at each other. Are Christians who have additional money to spend on political activities called by God? Are they elected by God for the task, permitted by God as a matter of general common grace, or merely tolerated by God prior to a sobering judgment? Are such Christians, with greater financial resources to apply to favored political outcomes, abusing their financial resources or their positions when they make use of their wealth to do so?
Reciting a scripture verse or two doesn’t seem to answer the question.
King Solomon was richer and wiser than any other king in the world. They all consulted him, to hear the wisdom that God had given him. Each of them brought Solomon gifts—articles of silver and gold, robes, weapons, spices, horses, and mules. This continued year after year.
That’s one verse, 2 Chron. 9:22-24. Here’s another:
Again, the devil took him to a very high mountain and showed him all the kingdoms of the world and their glory. All this I will give you, if you will fall down and worship me.” “Away from Me, Satan!” Jesus declared. “For it is written: ‘Worship the Lord your God and serve Him only.” Matthew 4:9-10.
Healthy questions about financial power, used for political purposes, are within the scope of our curiosity and examination. The Bible is outspoken on providing justice to the poor. The Bible is silent on the idea of attempting to equalize political influence in a system of democratic self-rule among groups of different economic power. With the passage of time we will determine whether we’re dealing with Solomon or the devil. If the answer isn’t obvious, then let’s watch, like Habakkuk on his patient watchtower, before we criticize, legislate, equalize or prohibit. It appears to me that the people who wind up with the most raw political power are the ‘equalizers’ themselves.
The Buckley court also considered the problem of compelled disclosures of the names of contributors. This issue has become heated, with ‘doxxing,’ or ‘naming and shaming’ when some partisans wish to publicly identify, embarrass or intimidate those who are taking opposite political views. The ‘woke left’ has directed such activity against conservatives or conservative Christians. Currently this is at fever pitch over discovering the names of those who participated in demonstrations at the Capitol on January 6, 2021. The criminal process is going to identify and prosecute a handful of people. The social process of ostracizing and financially punishing the much larger group of those who were there, is going to go on longer and be more diffuse.
With respect to financial contributions, the interior moral call to resist such intimidation, to have the courage of one’s convictions, is self-evident. The cultural and political fissures that arise from doxing such contributors are self-evident. A case originating in California is currently pending before the U.S. Supreme Court, Americans for Prosperity v. Harris, over the compelled disclosure of the names of people who donate to non-profit organizations, such as those with religious affiliation. The state of California has a history of publicizing, or failing to police or prevent the publication, of the names of such donors, which the not-unexpected result that they have been doxed – harassed, intimidated, suffered financial loss, etc.
When the controversy is the government of California versus Christians, with the government blandly asserting that it would never dream of legally persecuting Christians, but (wink, wink, nod, nod) – gee, what can they do about the conduct of private citizens after the information is unfortunately and surreptitiously divulged? (Darn those pesky hackers – the Governor of California will give them a very stern lecture). – it’s easy to pick sides. But the disclosure controversies may not always find themselves so situated that it’s easy to take sides. The good intentions of donor disclosure and the practical results of disclosure for the individuals often go in different directions.
In Buckley, the Court reviewed its prior holding that compelled disclosures can encroach on 1st Amendment rights, citing to NAACP v. Alabama, 357 U. 449 (1958), discussed in a coming post. Group association is constitutionally protected because it enhances effective advocacy, which is a mild and neutral way of talking about the risks people were running who publicly allied themselves with the NAACP in Alabama in 1958. Id. at 65. There is a right of privacy of belief, which may be invaded when disclosures are compelled about donating money as well as who are the members of a particular organization. In Alabama in the 1950’s as well, loss of a job was a common means of retaliating for a political association not pleasing to an employer.
With respect though, to the events of January 6th at the Capitol and criminal conduct, the answers are easier. Lurid, heavy-breathing accusations of insurrection, sedition, treason and revolution are not useful to our national life (however politically useful they may be in the short term, one might ask rhetorically why any President-Elect would want to begin their administration that way). But the ordinary application of criminal law is. One may almost become wistful, dreaming of a nation where ordinary criminal laws are enforced in the ordinary way, without regard to the political affiliations of those whose conduct as political demonstrators violates the law.
That certainly isn’t America today. To say that the riots which took place in Portland and Seattle over the summer, and the riots in Washington D.C., which took place this winter of 2021, were treated differently by the media, is an understatement of massive proportion. Unrestrained media hostility was a major problem in the last administration; for different but related reasons, it will be a problem for the coming administration. Screaming media insults and accusations of sedition, treason, etc. are counterproductive, especially where voting margins to enact any legislation are razor-thin.
More on Lists and Names and Disclosures
It is not possible to discuss this topic in the abstract. The answers as to whether people should lose their jobs for ‘bad speech’ or ‘bad associations’ vary enormously. It depends on the nature of the list. It depends on whose list we’re talking about:
a list of members of the NAACP in Alabama in 1958;
a list of members of the American Communist party in 1954;
a list of members of the Ku Klux Klan in 1967;
a list of a conservative, anti-LGBT donors in California 2010;
a list of those donors who gave more than $100,000 to any particular Democratic, Libertarian, Socialist or Republican candidate or committee in 2020;
a list of members of a Black Lives Matter organization in Chicago;
a list of members of an anti-fascist organization in Seattle;
a list of those who regularly participate or contribute to an internet group like Q-Anon;
a list of attorneys in those law firms which represented President Trump in his legal challenges to the 2020 election results;
a list of Muslims who regularly attend religious services under the instruction of a certain radical imam;
a list of members of those groups which intentionally harbor and assist illegal immigrants;
a list of athletes who think that all athletes should stand in respect for the flag;
a list of entertainers who voted for Donald Trump;
a list of doctors who perform abortions;
a list of doctors who will not perform abortions;
a list of doctors who think that masks are useless against Covid-19 and that there is no benefit to social distancing;
a list of doctors who think that any medical doctor who publicly rejects masks and social distancing should have their medical licenses revoked.
Generally, those who are aggressively partisan in political activity think it’s a great idea to compel disclosure of the names of the members of their political adversaries (the ‘bad list’) and their financial donations (and their employers, cell phone numbers and their home addresses too). They think it’s a terrible idea to compel disclosure of the names of the members, their financial contributions, their cellphone telephone numbers, employers and home addresses of their own favored groups (the ‘good list’). The bad list people deserve exposure, the good list people deserve privacy. Everyone engaged with this discussion appears confident that there will be no retaliation due to disclosing the names of people on the bad list (anyway, they deserve it). But if the names of the people on the good list were disclosed, that would be a harbinger of cruel intimidation and retaliation to come.
From the point of view of Christian idealism, the obvious benefit of privacy for the names of members of any group is to prevent retaliation and intimidation. It’s hard to find any Christian reason why anyone’s name should be disclosed because of routine political giving. There is never a reason to disclose personal addresses or other personal information. When people are giving large sums of money to engage with the political process, some of those concerns are alleviated. Generally, the rich are not as vulnerable to intimidation and do rather well in self-protection. Giving money is afforded Constitutional protection because it is an expressive act, but for that reason, it cannot simultaneously be an entirely private act. So when the Benjamins come out for direct political engagement (not routine charitable giving), the disclosing lights go on.
A Digression on Trustworthy Candidates who Answer Important Questions
Buckley suggests what we would like to know, as Christians in our own community as well as citizens in the larger political community, where money comes from, how it is spent, how much and from whom is the candidate’s financial support. Id. at 66-67. Distant, ominous bureaucracies, triggered by information supplied by opposing parties, are not the answer. But asking Christian candidates for office – “Talk to us. Who are your largest contributors, what is your financial support?” – are reasonable questions. They would be especially reasonable questions if the candidates’ answers disclosed the large donors, because they can protect themselves against reprisals, but not the small donors, who may need the shield of anonymity.
Then, if it turned out corporation ABC Behemoth, Inc. was a major supporter of a particular candidate in a local election, that might be useful information. But it would be equally useful if it turned out political committee Mega-Everywhere-All-Over-America was giving large sums to a candidate in that local election too.
Even where state or federal election finance law would permit us to obtain written reports or compel answers from candidates, developing mutual trust and respect between Christian candidates and a Christian electorate is essential. If two opposing Christian candidates for office both answered those where-are-your-finances questions voluntarily, candidly and completely, we would be conducting an election that might be conducted in the Holy City. Such an election, regardless of outcome, would be an ascent of grace, to advance and reinforce our faith community norms.
Buckley is the court opinion which provided the list of ‘magic words’ which for years provided guidance on the regulation of independently-funded communications about elections, such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” “reject.” See Id. at 80, notes 52 and 108. A Christian community of churches is not going to create magic lists of words which are prohibited or allowed. The underlying problem the court confronted was that Congress wanted to criminalize certain conduct having to do with political campaign spending – and when you criminalize conduct which can be interpreted subjectively or ambiguously, all sorts of Constitutional problems arise. So a defined list of words provided by the Buckley court helped cure some of the problematic ambiguity. It remains one curse of our modern political system that whenever anyone gets mad enough at their political adversaries, they look for ways to criminalize the conduct they don’t like.
A Brief Digression on the Depressing Consequences of Criminalizing Political Conduct
Criminalizing a political adversary’s course of conduct, if it went unchecked, could take us right back to the brutal and tragic political-religious warfare of Great Britain. Think of the Wars of the Roses, Star Chamber proceedings, beheadings of royal consorts and advisors, political and religious dissenters being jailed or burned at the stake, ex post facto laws, bills of attainder, shamelessly conducted in self-righteous vitriol over hundreds of years, from the 15th to 18th centuries. Buckley and Citizens United blessedly took at least some steps to rein in some of that criminalize-what-you-don’t-like temptation of our election finance activities.
Criminalizing conduct for political reasons is utterly disastrous – disastrous for the Christian community and disastrous for the nation as a whole. Throwing words like ‘treason’ and ‘sedition’ at one’s political opponents is either childish or dangerous. A football game of alternating politically-motivated criminal prosecutions is a recipe for everlasting hatred. They had hundreds of years of it in Great Britain, accompanied by charges of treason, sedition, etc.; an excellent example of what not to imitate. ‘Lock him up’ is the natural consequence of ‘lock her up’ – and when children play with hand grenades, the results are never good.
The Buckley case discusses the doctrine of separation of powers arising under a Constitutional provision called the Appointments Clause. Congress’ power to enact law, the power of the President and the executive branch to execute those laws, the power of the Supreme Court and the judiciary power of independent review, are separated. Id. at 120. The notion of separation of powers is absent from visionary religious idealism. I daresay the number of Christians who read to the end of the Book of Revelation, and who are then thinking of the doctrine of separation of powers, is limited. Nevertheless,
A Brief Digression into the Separation of Powers, ending with Isaiah and Delight
We who belong to Christ all receive the Holy Spirit. By belonging to Christ, we are all in the process of being perfected by the Holy Spirit. The word ‘all’ means we can separate legislative, executive and judicial powers and disperse them among many saints, for the good of us all – even unto the millennium. The nostalgic desire for ‘Christian empire’ (whatever that might mean) is misplaced. There is no Christian reason to concentrate power into one narrow set of hands, unless those hands are Christ’s himself, who doesn’t need our help. John Locke was an imperfect theologian but he expressed something both political and spiritual – “Any political society is nothing but the consent of any number of freemen capable of a majority, to unite and incorporate into such a society. And this is that, and that only, which did or could give beginning to any lawful government in the world.” 2nd Treatise of Government.
Separating and dispersing powers is our path also. Men and women who have been given the Holy Spirit by God’s grace may offer our consent to unite and incorporate our society, using the terms as Locke used them. Our consent is as broad and universal as the gift of the Holy Spirit. Even on my servants, both men and women, I will pour out my Spirit in those days – so the Apostle Peter preached to the crowd, on the day of Pentecost. Political means we organize; spiritual means we invite, but we don’t compel. A consenting society ascends with grace.
Ironically, separation of powers compels us to act together, it strengthens our bonds. Christ accepted the sole duty of being crucified for the sins of the world. Christ alone was vindicated before men and angels by his physical, visible resurrection and ascension. As we receive Christ’s gifts, his commission for Christian witness and discipleship has been conferred and extended to this nation and to the nations. Matthew would tell you so at the end of his Gospel and the Apostle Paul will tell you so at the end of his Letter to the Romans. The doctrine of separation of powers is one political tool for the community of churches to conduct us into a better world. It’s not the way people trained in theology tend to think (just as those who are fixated on politics are blind to that which is spiritual) – but that’s where our holy path leads, skirting a tumultuous sea of this world’s crises and acrimonies.
Self-government requires voices and eyes that differ, even when operating under the impetus of common religious idealism. Temporal powers are separated, shared and dispersed. Rigid conformities which start in theology and transition to political government end in Galatian observances and finally, Laodicean indifference. Christian self-government expands, is dynamic, mysterious in growth, dispersed in political power as it is dispersed in witness. Our government, composed of a community of churches, is commissioned as a living icon for Jerusalem-from-Above. Our icon is cast like seeds on good ground among differing expressions of the Christian faith. A shared vision and separated powers are sufficient and necessary to that promised bliss in a City of Peace, home for the Seven Churches. This ascent is spoken of by the prophet Isaiah; the end of the Book of Isaiah connects to the end of the Book of Revelation.
You will drink deeply and delight in her overflowing abundance. For this is what the LORD says: I will extend peace to her like a river, the wealth of nations like a flooding stream. Isaiah 66:11-12.
A Brief yet Transparent Digression into Privacy and Secrecy
In Buckley, Justice Burger advocated for what may be termed rights of secrecy and privacy. Burger began by reciting the remark of a U.S. Senator concerning the practical effects of disclosure requirements. “The disclosure provisions really have in fact made it difficult for challengers to challenge incumbents. Id. at 237.
[Note – the codification, Chapter 14 Federal Election Campaigns, is attached as an appendix to the Buckley opinion, citation pages U.S. 144 through 234, which is why the page number citations in this discussion jump to p. 237].
Justice Burger explained further:
“Secrecy, like privacy, is not per se criminal. On the contrary, secrecy and privacy as to political preferences and convictions are fundamental in a free society. For example, one of the great political reforms was the advent of the secret ballot as a universal practice. . . . [T]his Court has seen to it that governmental power cannot be used to force a citizen to disclose his private affiliations . . .”
Id. Justice Burger was concerned about the effect of compelling small donors to disclose to the public their donations. The desire for transparency collides with the legitimate need of privacy in the context of financial donations and membership in unpopular organizations which expose their members to ridicule or various penalties, like loss of a job.
These issues are not often raised in a discussion about Christian idealism or any political idealism. Secrecy and privacy are not topics that seem to have a place in a millennial vision. The eschatological vision of Christians appears almost like a map that shows New York, then a huge blank space, then San Francisco – ‘see here we are, here’s where we want to end up’ – but with nothing in the middle. Churches have been confronting the tension between secrecy and privacy in the context of dealing with allegations of sexual abuses or misconduct involving their pastors or leaders. What values should an ideal society present and advance, with respect to privacy and secrecy?
Transparency is a word which gets a lot of favorable notice these days; its importance and benefits have been detailed at length. When an entire organization takes furtive refuge in secrecy or privacy, as a shield against public embarrassment or exposure for wrongful conduct, the victims of that conduct are vocal and deservedly so. But Justice Burger found value in secrecy and privacy, so much so that he asserted they are “fundamental in a free society.” No one should advance the values of secrecy and privacy to hide criminal conduct. But ‘criminal conduct’ has a definite meaning in federal and state court prosecutions; often, for other reasons, such as the application of a statute of limitations, there is no realistic possibility of a criminal prosecution.
Are we in favor of transparency or are we favor of secrecy and privacy? Once exposed, the toothpaste of public exposure doesn’t go back into the tube. The answer is easy for chargeable crimes, relatively easy for conduct which is plainly wrong even if not criminal; but becomes less obvious when we are dealing with accusations, perhaps unfounded or exaggerated or presenting an incomplete picture of events. The answer becomes less obvious still when we are talking about political conduct, whether it is membership, contributions, expenditures, participations. If a pastor attended a demonstration in Washington D.C. on a certain day but did not enter the Capitol building, even though others did, or take part in any illegal activity – should his conduct be publicized? After all, the point of a demonstration is to make a public statement. Should he lose his position as a pastor because the conduct of others brought the demonstration into disrepute? What world do we want to live in? Obedience to Christ requires us to start filling in these details on our map. And Justice Burger had something of value to add to that discussion.
A Brief Digression into some suggested Legal Improvements for Private Citizens who have offended Major Media Outlets
The internet has made this a problem on steroids. Major media outlets have gone out of their way in some cases to vandalize the lives of ordinary citizens, sometimes quite young, for taking some alleged action or issuing some social media post which the media outlets desire to attack and ridicule.
One answer would be substantial punitive defamation judgments awarded against media outlets when brought by ordinary citizens who had not previously placed themselves in the public eye. If media defendants don’t pay attention to that, their insurers will. The media outlets may encourage virtue signaling, such as faux outrage against teenagers who wear Trump hats, and the viewership and advertising revenue it generates. After some substantial judgments, when the media outlets get the bill for their errors and omissions policy premiums, that discussion will be private indeed, but probably serve as a more effective brake on such conduct.
In order to achieve effective punitive damages award we’ll need the Supreme Court to decouple the limits on punitive damage awards where media defamation is involved (the top end of the ratio for punitive damage awards to actual demonstrable financial loss to plaintiffs is currently at about 10-1). There is no punitive effect, if the punitive damages award is a fraction of the media’s advertising revenue generated. The defenses made available through tort reform measures should not be available to media outlets who defame ordinary citizens (or private groups, like a fraternity) who have not placed themselves in the public eye.
When it comes to the media, old-fashioned joint and several tort liability on defamation claims should be the rule, including parent corporations. It should not assist those media outlets to simply throw their poor reporter or separately incorporated subsidiary under the legal bus (we didn’t know he or she was making it all up or the facts were completely distorted – how could we?). The reporters do it because the editors want it – and the editors want it, because the separately-incorporated publisher and the board of the parent, conglomerate corporate publisher wants it. Such a legal response wouldn’t have protected Brett Kavanaugh – he put himself in the public eye and it’s no place for children – but it might protect some poor cheerleader who texted something inappropriate when she was 15, when she didn’t make the cheer squad and has now become a frontpage story for purposes of ridicule and sanctimonious moral censure from the woke left.
A Digression on Legal Rights and Fuzzy Medical Knowledge – if you don’t know much, how do you narrowly tailor it?
Justice Burger didn’t like threshold limits for disclosure of anonymous political contributions at $10 and $100; he found them constitutionally impermissible. Id. at 239. Modest contributions were the prime support of “new, unpopular, or unfashionable political causes.” Modest donations didn’t exert a corrupting influence on anyone. Id. at 240. Burger made an important point; giving government latitude to be imperfect is acceptable and necessary in many contexts, but not in the context of basic Constitutional rights.
Justice Berger’s concern has been made more visible in the current legal arguments concerning Covid-19 restrictions. It’s one thing to have fuzzy argument about the effectiveness of masks in a group setting; but Justice Berger wouldn’t agree to fuzzy arguments concerning First Amendment rights. Any legislation touching upon 1st Amendment rights has to be ‘narrowly tailored’ to meet a permissible end.
Is some government Covid-19 enactment ‘narrowly tailored’ if the legal argument for the application of emergency police power is Constitutionally impeccable, but the underlying medical science is only ‘pretty good’ or ‘the best we’ve got now so let’s be cautious’? ‘Narrowly tailored’ to what is a question which needs to be asked. Tailored to Constitutional law? Or to a state Governor’s hopes or fears about the spread of Covid-19? Or to federal administrative or tentative medical beliefs about ending the Covid-19 pandemic? ‘Narrowly tailored’ means something different to researchers in medical science than to Constitutional lawyers. Does ‘follow the science’ mean we don’t follow the Constitution?
Courts operate in a light-switch sort of way – yes or no, that’s the law, you can do it or you can’t. Medical researchers probably stopped thinking that way by their second year of medical school. In dealing with medical uncertainty on top of legal uncertainty in a pandemic, we have doubled and tripled Justice Berger’s concerns about Constitutional restraints being ‘narrowly tailored.’ Possibly a successful program of vaccination will end this question in connection with Covid-19 without ever solving it. In the meantime, if ‘following the science’ means ‘ignoring the Constitution’ – then I’m in favor of the Constitution. It’s easier to solve a medical problem than to restore liberty rights obtained with great difficulty over a long period of time, where those rights are being curtailed for medical prescriptions or recommendations which are approximate and unsettled.
On Public Financing – and this is not a Digression, this is what I was supposed to be writing about all along
In Buckley Justice Burger addressed another issue – that of public financing of elections. There are significant arguments pro and con on this point. One obvious pro point was made by Justice Kagan in her dissent in Arizona Free Enterprise Club, 564 U.S 721, 784 (2011). Essentially, if the people of Arizona want this, why can’t they have it? A sobering con point is made in Justice Burger’s dissent, citing to a remark by Senator Howard Baker: “I think it is extraordinarily important that the Government not control the machinery by which the public expresses the range of its desires, demands, and dissent.” Buckley at 248. [My emphasis.]
As Christians, where do we want to go? The problems aren’t really different in a spiritual or Christian context. If control of the government means control of the financing of elections, to elect those same officials who are to control government, then the circular and politically (or theologically) incestuous nature of the system is self-evident. Historically, control of the government by one religious group allowed it to dominate both its political and religious adversaries or dissenters. Cuius regio, eius religio, a Latin phrase meaning, ‘whoever rules, his religion’ dates back to the 16th century. As a principle it characterized a treaty between Catholics and Protestants called the Peace of Augsburg in 1555. It wasn’t made up recently but it’s still not a good idea.
Allowing public financing of political campaigns seems to be a step down the path toward a kind of soft ‘Foxes Book of Martyrs.’ The ruling theological class doesn’t take dissenters out of town to burn them at the stake – the ruling class just sees to it that the dissenters’ political campaigns never quite meet the set of rules, requirements and regulations necessary to qualify for public funding. Small, start-up groups with new ideas are often clumsy with respect to bureaucratic forms and filings. Funding for such new groups may depend on the large gifts of a few individuals, or on accumulated donations from people concerned that their names should not become public knowledge.
Yet, if a particular town somewhere in America has achieved a kind of informal unanimity with respect to the Christian faith, and decides that they as rational and faithful citizens want to contribute some additional taxes to fund the local race for sheriff, between two Christian candidates, so that these candidates can concentrate on the issues and not be busy fundraising – why can’t they do that? Which verse in the Bible does that contradict?
Ideally Christian self-government embraces dynamic opportunities for candidates and dynamic opportunities for citizens. There is tension here – dynamic opportunities for candidates would mean they don’t have to meet a daunting set of bureaucratic rules to get into the political arena. Dynamic opportunities for citizens would mean they could engage in the process – e.g., by guiding the financing of political campaigns by public funding, which necessarily entails some rules.
If we are talking about differing visions of Christian freedom, theologically we are in the Apostle Paul’s Letter to the Galatians. It is for freedom that Christ has set us free. I lean toward restraints on federal public financing because the federal government is more powerful, much larger and much less responsive to citizens generally or to us as Christians in particular – the federal government presents more of a threat of political or cultural domination, of enforced political correctness. I lean toward encouragement of public financing at the state and local level, because we as Christian citizens ought to be in a position to exert that freedom ‘for which we were set free.’
My Last Brief Digression – on the Word Compromise
Justice White provided a concurring and dissenting opinion, beginning at U.S. 257, defending the regulatory regime. I’m not much of a fan of Justice White or his defense of financing regulations, which has already been addressed. After providing that argument, Justice White moved to a complex discussion about the Appointments Clause of the U.S. Constitution, which is hyper-technical and not too important to anyone who is not a Constitutional scholar. But Justice White makes a point which bears repeating, particularly for those of us who are pursuing a religious vision of the future.
It has to do with the word ‘compromise.’ If you like reading commentaries on the Book of Revelation, you will find that the word ‘compromise’ is pretty much a stretched-out four-letter word. It is always bad, always characterizes cowardice, being unfaithful, compromising religiously with an idolatrous world in a way that the Scriptures tells us to avoid, even at the cost of our very lives.
The word ‘compromise’ takes on a different aspect in a political discussion. Without bothering with much of an explanation, I’m going to quote Justice White at length, even though part of what he says is rather inscrutable to the general public.
“This allocation of the appointment power, in which for the first time the Executive had the power to initiate appointment to all principal offices and the Senate was empowered to advise and consent to nominations by the Executive, was made possible by adoption of the ineligibility provisions and was formulated as part of the fundamental compromises with respect to the composition of the Senate, the respective roles of the House and Senate, and the placement of the election of the President in the electoral college.” Id. at 274 [my emphasis in italics.]
“Fundamental compromises” are not always bad – you have to consider them, to use your head. A serious vision of an idealistic future requires us to take steps along the way and think over the question – what are we compromising here? Is this putting things together, things that Christ has given us – or is this pulling them apart? The Appointments Clause of the U.S. Constitution helped to put things together for a new nation – it was a good compromise. I’m too serious about our Lord’s vision of the millennium to allow it to be frittered away by dogmatic inflexibility.
We Christians Request: That our theory of government reflects a dynamic tension between and among differing theories: (i) government perceived as a neutral defender of individual rights with no other value to advance except the enforcement of public safety; (ii) government as an active superintendent of the public health and welfare with a special concern for the disadvantaged; and (iii) government as a witness to Christian values in a vibrant and growing community of churches. Our community of churches has the primary responsibility of articulating the particular Christian values which are to be applied in the immediate context.
We Christians Expect: To share the burdens, the joys and the sorrows, of our country, our nation and fellow citizens, our brothers and sisters, our political, cultural and social adversaries, our mission field. We expect to be victorious.
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