I second Mike Ramsey's call for more originalist scholarship on campaign-finance issues, especially those related to campaign contributions. In my very limited investigation, I became intrigued by–but have not had the chance to track down to any depth–the intellectual background to Ex Parte Curtis, 106 U.S. 371 (1882), which upheld a ban on political contributions between subordinates and superiors within the federal government. The case was 8-1, with Justice Bradley dissenting. The petioner made a very strong claim for the First Amendment right of all citizens, in the employ of the federal government or not, to contribute their money as they wished. After quoting the First Amendment, the petitioner claimed,
Indubitably, it would be a violation of this provision for Congress to enact that none of the 100,000 government officials should give anything to the Methodist church (for instance), though left free to hold such religious tenets as they pleased, and to preach and pray accordingly. The exercise of religion is not free, unless everyone can give of his means freely, without control, in its support, and to promulgate its doctrines.
In like manner, freedom of speech and of the press is abridged if every citizen cannot, at will, contribute to cause the speech to be made, that it may be disseminated, to accomplish the 'political purpose' for which it is intended.
Freedom of the press is not simply the right to print. It is, pre-eminently, the right to publish; which, necessarily, involves the right to receive aid, from whomsoever has the means and desire to give, that the publication may be effected.
So, the right to assemble includes the right to hire Faneuil Hall, or any other convenient place, in which to hold the meeting; and the right of every citizen who makes one of that assembly, or chooses to aid its object (political or other) to give toward the hire of the hall, and other expenses.
The court (opinion here) rejected Curtis's challenge to the statute, but without, I think, disagreeing with his analysis of contributions as a core element of political association and the freedom of speech. Rather, restrictions on contributions were allowed on the same grounds as restrictions on other activity by office-holders, such as restrictions on commercial activity by employees of the Department of the Treasury. Justice Bradley's dissent, however, clearly agreed with Curtis that political contributions were part of the freedom of speech:
Among the necessary and proper means for promoting political views or any other views are association and contribution of money for that purpose, both to aid discussion and to disseminate information and sound doctrine. To deny to a man the privilege of associating and making joint contributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public affairs. The freedom of speech and of the press, and that of assembling together to consult upon and discuss matters of public interest, and to join in petitioning for a redress of grievances, are expressly secured by the Constitution. The spirit of this clause covers and embraces the right of every citizen to engage in such discussions and to promote the views of himself and his associates freely, without being trammeled by inconvenient restrictions.
1882 isn't, of course, 1791, but I would encourage others to investigate the extent to which these sorts of ideas pre-dated Curtis. When did these ideas first emerge, and what dissent did they engender, if any, and on what grounds? Inquiring originalist minds should want to know.
Posted at 12:46 PM