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December 5, 2006
Justice Breyer's self-delusion
Chris Wallace interviewed Justice Breyer the other day and elicited from him a truly amazing (self-delusional justification of his vote to abridge free speech in the misnamed Campaign Finance Reform case:
The very point of speech in an election is to get a message across. And that may mean, in part, that you don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money. [Emphasis added.]
If you accept that at all, you've suddenly bought in to the proposition that there are First Amendment interests on both sides of this equation.
And once you're there, you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely. Shrink Wrapped deconstructs this delusional justification from the point of view of a psychologist:
Apparently, it takes an extremely intelligent man to be able to penetrate the mystery of the First Amendment. Apparently, those of us naive enough to believe that the First Amendment means what it says, "Congress shall make no law ... abridging the freedom of speech", fail to realize that the object of our laws and our constitution is to ensure certain, "fair", outcomes. I always thought the purpose of our Constitution was to set up the rules by which our system of government was to operate. Sometimes those rules would result in outcomes that would be considered unfair to various people and constituencies, but the rules did a better job than any other system of government before or since in securing our rights and producing a society that worked well, considering it depended on fallible men and women to execute the rules. Justice Breyer suggests that if some of us have garnered certain advantages, greater wealth or celebrity for instance, and therefore have an advantage in getting our views across to our fellow Americans, this is a priori unfair to those without such advantages. My point of view is more practical. Does the Justice consider that the rich who own our major newspapers, like the Grahams and Sulzbergers, were in one fell swoop given even more power to shape the debate than they were before this law and his decision upholding it?
And I sure wish Chris Wallace asked him if he'd considered how the law meshed with other legislation--like 527--which allowed people like Soros to spend over $20 million to affect the results of the election.
It and the Kelo case are the two most dangerous opinions rendered by the Court in my lifetime. And it does Breyer no honor to be praising his role in it.