Petitioning Speech

June 21, 2013
posted by Bob Bauer

Campaign finance jurisprudence is intensely concerned with free speech rights, less and decreasingly with associational rights, and not at all with a more comprehensive conception of the requirements for conducting political action—“doing politics.” Why this is so is worth exploring. Something is missing here, and the gap is consequential.

Ronald Krotoszynski, Jr. contributes a highly useful perspective on this problem in his book, Reclaiming the Petition Clause (2012). He shows how the rights to petition and assembly have faded into the First Amendment background, little remembered and assigned no independent significance. Even associational rights, lacking the express textual grounding of the rights to petition and assembly, receive more of the Court’s attention—though not much of it. It is not hard to see why: the Court is sensitive to association as an expressive function. So once again, the speech right is the thing, really the only thing, and if politics in the most inclusive, integrated sense of the term enters into the discussion, it is only by leave of its connection to the right of expression.

As part of his inquiry into what has become of the right to petition, Krotoszynski focuses attention on the early history of petitioning as an essential, formal process linking citizens to their government. Congress received petitions, gave them formal consideration and met petitioners’ expectation that it would, favorably or not, respond. When the abolitionist movement made voluminous use of petitions to press Congress hard, pro-slavery Members managed to shut down the procedure: no more consideration, no more response. This “gag rule” eventually ended, but petitioning never regained the old form of paper pleas to which Congress owed deliberation and reply.

But in place of this antiquated procedure, the right to petition lived on in what Krotoszynski refers to as “systemic” or “hybrid” rights that combined “speech, mass assembly, and association as part and parcel of…law reform efforts.” Id. at 82, 151. The government remained the target of the “petitioning” aspect of this hybrid right, but now the fairly linear sequence of petition consideration and response was enlarged into a “form of mass participatory politics.” Id. 127. What was asked of officials was “almost incidental to the larger, public effort to organize supporters, mobilize public support and media attention and move public opinion in favor of some specific reform objective.” Id. at 17.

In the late 19th and early 20th centuries, this hybrid right enjoyed its heyday, exercised by the women’s suffrage as well as the abolitionist and other movements. It came to be eclipsed by the advent of the initiative and referendum, which Krotoszynski takes to be the standing infrastructure of what he calls the “petitioning culture.” Id. at 151.

Krotoszynski’s most urgent, and somewhat narrower, concern in this book is to revive sensitivity to the right to petition in order to allow citizens more direct access to government for protest, and to limit government’s increased reliance on “security” concerns to resist or sharply circumscribe that access. But in more generally re-creating for discussion the “hybrid” right, Krotoszynski performs the valuable service of reminding readers that political action is not a one-dimensional exercise in speech. Political action blends petitioning, assembly, speech and association. To do politics requires more than a soap-box to stand on; it is not made up of a succession of speakers having the chance to address a succession of audiences. The organization of a political or social movement, or the activities of a political party, or a candidate’s establishment of a “ground game” to mobilize supporters around a set of public policy stands, rests for success on a more complex form of concerted action of which “speech” is one but not the only constituent part. And of crucial significance is the democratic, participatory character of this form of political action—as Krotoszynski says of this “hybrid right,” it’s core is “the notion of legal change through ‘bottom up,’ rather than ‘top down’” politics. Id. at 166.

What is the practical significance, if any, or is this just a question of a doctrinal piece that should be restored to complete the First Amendment picture but without expecting much from the adjustment?

Certainly an appreciation of the multiple dimensions of political action would help clarify the interests at issue in campaign finance and other political law cases. For example, in a case like McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court upheld various restrictions on coordinated activities and financing within and among national and state units of a political party in support of voter mobilization and generic party promotion. 2 U.S.C. §441i (b)(2)(A)-(C). It found that the limits served the state interest in containing “circumvention” of the limits on the use of soft money. So from the view that free speech rights had to yield to the goal of combating corruption, the Court proceeded to sustain a barrier to circumvention that can be traced back to this one tradeoff between speech and anti-corruption measures. Now if an associational right is merely an adjunct to First Amendment expressive rights, it can add little to the analysis; and in that light, it is understandable, or at least predictable, that the Court would find little use for associational rights in examining the constitutional interests in play.

The Court did not see that political parties, or other organized political movements, are not just speaking: they are engaged in political activity—they are “doing politics.” The wider lens through which the Court might have viewed the operation of parties could only have enriched its analysis, regardless of the effect of the outcome. Instead the Court could find these restrictions to be “minor”; it would not agree that they merited “strict scrutiny.” Id. at 202.

This is one modest example of the reductionist view of what defines “politics” and its place in First Amendment analysis. It goes to show, just as does Krotosyzinki’s “reclaiming of the” Petition Clause, that speech is not all there is to it.

Leave a Reply