People speak and judges listen

The United States Supreme Court’s 5-4 ruling in McCutcheon v. Federal Election Commission, 572 U. S. ____ (2014) that invalidated aggregate contribution limits has been denounced by activists across the political spectrum. However, some critics have an unthinking response and might change their minds if they seriously consider the Court’s reasoning.

First, the case was not about progressive versus conservative but rather authoritarian versus libertarian. Progressives want to believe that only the Kochs and Sheldon Adelson donate millions, and conservatives want to believe that only George Soros and Michael Bloomberg spend much. According to OpenSecrets.org, the top 20 individual donors are nearly evenly split between Democrats and Republicans. Also, among those who filed amici briefs for McCutcheon were the conservative American Civil Rights Union, the libertarian Institute for Justice and the nonpartisan Thomas Jefferson Center for the Protection of Free Expression and the Media Institute.

Chief Justice Roberts delivered the majority opinion joined by Justices Alito, Kennedy, and Scalia; Justice Thomas concurred. The highlights of the opinion are: “There is no right more basic in our democracy than the right to participate in electing our political leaders. […] The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” He continued to explain that the First Amendment protects individual speech, not collective speech legislated by the government. For Roberts, if the First Amendment vigorously protects expression as controversial as cross burning, flag burning, hate speech, virtual child pornography, and Nazi and Ku Klux Klan marches — as it should, then political expenditure, as unpopular as it is, cannot be an exception.

Justice Breyer wrote a dissent joined by Justices Ginsburg, Kagan, and Sotomayor. The highlights of the dissent are: “It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.  Taken together with Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws […] [T]he First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” He thought that when weighed against the compelling government interest of controlling corruption, freedom of speech must yield.  Breyer unfortunately implied that people have a right to elections free of his broad view of corruption. Unless he impossibly peered into the Ninth Amendment, he could not have found such a right in the Constitution.

Supporters of campaign finance laws often claim that money is not speech. They are wrong; spending money is speech — pure symbolic speech. When people contribute money to a candidate or party, they express their agreement with and support for the candidate or party’s platform. Even when people do not know or support the platforms of candidates they contribute to, they express their personal support for the candidates. Ironically, in his book Active Liberty Justice Breyer wrote, “Money is not speech, it is money. But the expenditure of money enables speech, and that expenditure is often necessary to communicate a message, particularly in a political context. A law that forbade the expenditure of money to communicate could effectively suppress the message.” And with respect to original meaning, it is inconceivable to imagine that Benjamin Franklin and Thomas Paine would have tolerated laws limiting their expenditures on political newspapers and pamphlets.

The Supreme Court has only ever been concerned with quid pro quo corruption — bribery — or the appearance thereof and has yet to find that its campaign finance decisions caused any. Perhaps its judgment is wrong, or its definition of corruption is too narrow. But corruption, like obscenity, is difficult to identify and prove. One judge’s corruption is another legislator’s normalcy. Who can truly know whether there was more or less corruption after the 1971 Federal Election Campaign Act and if campaign finance laws actually work? For example, Transparency International’s Corruption Perceptions Index ranks the US 19th cleanest of 177 countries, but the organization humbly concedes that corruption is naturally hidden and complex and impossible to measure directly.

Activists are rightfully concerned with bribery, a serious problem. But the best way to end political corruption is to restrain not speech but government. Special interests cannot control, only influence government. The government can always reject their demands. A government properly bound by the Constitution is unable to give favors to rent seekers. If there are no reasons to purchase politicians, then the market for politicians will inevitably decline. If government is limited to its enumerated powers, then special interests will fail to influence government. The Constitution envisioned an island of government power in a sea of liberty, but as government grows, so does corruption.

The future of campaign finance legislation is uncertain. McCutcheon kept intact the individual candidate contribution limit of $2,600 per election. Justice Thomas would have taken a step further and overturned Buckley v. Valeo, 424 U. S. 1 (1976), explaining: “Contributions and expenditures are simply ‘two sides of the same First Amendment coin,’ and our efforts to distinguish the two have produced mere ‘word games’ rather than any cognizable principle of constitutional law.” He is correct — the delineation is arbitrary. Why can people give lots of money to countless candidates but not give more than $2,600 to one? That is illogical. Strangely enough, the immediate effect of McCutcheon is to transfer power from political action committees to parties, which will increase transparency and accountability, according to David Brooks’s New York Times article “Party All the Time.” Maybe the American Civil Liberties Union’s stance is the best — opposing campaign finance regulations but preferring disclosure transparency and public financing of campaigns.

Ardent critics such as University of Chicago Professor of Law Geoffrey Stone and the Young Turks have called for a constitutional amendment to override McCutcheon. That would directly repeal a section of the Bill of Rights and be an unprecedented mistake. The First Amendment clearly states: “Congress shall make no law […] abridging the freedom of speech […]” Congress indeed made a law, the FECA, which infringes upon political speech by limiting the amount people can spend their own money. Therefore the Court decided McCutcheon correctly. The First Amendment was designed to protect the speech of all people — whether rich or poor, radical or reactionary, good or evil — from undue government interference. In that respect it is beautifully absolute.

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