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News & Politics News & Politics

Restoring Free Political Speech (SCOTUS case)

Posted by on Oct. 8, 2013 at 5:09 AM
  • 8 Replies

John Roberts faces another constitutional watershed.


The Supreme Court re-opens for business this week, and one of its first cases is a splendid opportunity to restore the First Amendment as a bulwark of free political speech. The result in McCutcheon v. FEC will likely hang on whether Chief JusticeJohn Roberts has the courage of his constitutional convictions and is willing to overturn the misbegotten logic of Buckley v. Valeo (1976).

Alabama businessman Shaun McCutcheon and the Republican National Committee are challenging limits on the total amount of money a person can contribute to multiple candidates and political parties. In the 2011-2012 election cycle, Mr. McCutcheon donated $1,776 to each of 15 candidates as well as sums to the RNC and other political party committees. Though his donations were all below the legal limits to individual candidates and political parties, he was prevented by the aggregate limits from making the donations he wished.

Donors are currently limited to contributing $5,200 to a candidate for each election cycle ($2,600 each for the primary and general election). But they are barred from exceeding overall ceilings of $48,600 for direct contributions to candidates and $74,600 to non-candidate political committees. So though a contributor might give $1,000 to 48 candidates, further donations violate federal law, even if they are well below the $2,600 threshold per candidate.


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Court Gavel With Money


This ought to be an easy call for the Court. In Buckley, the Justices allowed Congress to limit contributions based on the fear of corruption or the appearance of corruption. In the case of contributions to a single candidate, there is at least in theory the risk of a political quid pro quo, though that fear turns out to have been exaggerated.

There is little such risk of quid-pro-quo corruption if a donor spreads his donations among dozens of candidates. Under the McCain-Feingold law, Congress already treats all "related" PACs as a single PAC and counts any donations earmarked for a candidate against the individual contribution limit to that candidate. A donor can't evade the individual limits by donating to PACs.

However, the aggregate limits do restrict how much donors can participate in politics. A donor may want to contribute the maximum to 100 candidates but can't. This violates his First Amendment right to political speech. The limits on aggregate donations also harm political participation by limiting donations to political parties. This has diminished the role of parties with the paradoxical result of empowering the wealthy who can donate to independent political groups without limit.

The Roberts Court has already recognized that laws limiting spending on political ideas are "censorship to control thought." As Justice Anthony Kennedy wrote inCitizens United in 2010, "The First Amendment confirms the freedom to speak for ourselves," and that includes spending on political speech. Eliminating aggregate spending limits is a logical extension of this principle.

The larger constitutional drama, however, will be whether the Justices useMcCutcheon as an opportunity to go further and finally address Buckley. In that case the Court held limits on political expenditures to its "strict scrutiny" standard as a violation of free speech but allowed limits on contributions because of the risk of quid-pro-quo corruption. This was always dubious but looks even worse after 37 years of experience.

We now know that nearly all campaign contributions go to finance expenditures on political speech. They pay for TV ads, mailings or phone calls that advocate for a candidate or his ideas. There is thus no practical difference between a campaign donation and a campaign expenditure, and both are forms of political speech. As for the danger of corruption, the sheer amount of spending on politics today reduces the influence of any single campaign donor. Even large donations aren't likely to buy corrupt favors in campaigns with many such donors and huge sums spent.

The Court seems interested in this broader question because it has granted argument time to GOP Senator Mitch McConnell's lawyer Bobby Burchfield, who wrote an amicus brief arguing for holding contributions to the same "strict scrutiny" standard as expenditures. Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas have already signalled their readiness to overturn Buckley, and our guess is that Justice Samuel Alito would too.

Assuming the four liberals go the other way, that makes Chief Justice Roberts the swing vote. The left is already warning him in the media, much as they did so successfully last year in advance of his salvaging of ObamaCare. They will denounce a ruling they don't like as "activist" though it would merely restore the First Amendment's central role in protecting free political speech. Thanks to the historic blunder of Buckley, political participation is more heavily regulated today than are video games and pornography. That is not what the Founders intended.

The Chief Justice prefers to be an incrementalist, but now is the time to advance a core constitutional principle. The vote in McCutcheon will be 5-4 whether it is a narrow ruling striking down aggregate limits or a broader one striking down part or all ofBuckley, and the liberal denunciations will be as loud. If President Obama is able to replace one of the five nonliberal Justices, the Roberts Court may never get another chance.

In 2007 in Wisconsin Right to Life v. FEC, the Chief wrote that "we give the benefit of the doubt to speech, not censorship." The only way to honor that proper reading of the First Amendment is to restore the pre-Buckley constitutional order.

by on Oct. 8, 2013 at 5:09 AM
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Replies (1-8):
sarahjz
by Bronze Member on Oct. 8, 2013 at 10:07 AM

Hmmm...interested to see how this shakes out.

JoJoBean8
by Silver Member on Oct. 8, 2013 at 12:26 PM

This will be interesting to watch.

PrimmednPunked
by Silver Member on Oct. 8, 2013 at 3:20 PM

I am of the belief that we need to take money out of politics.  Whoever has the bigger pocket book and whichever side has the bigger contributors usually ends up the winner, that is why we have the two party system.  

But I agree, there shouldn't be a limit on individual donations.  That is limiting their freedom of political speech.  I just don't how comfy I am with the thought of the super rich out there being able to donate any amount to any politician.  That could be a slippery slope.

SallyMJ
by Ruby Member on Oct. 8, 2013 at 6:52 PM

Impossible to "take money out of politics." There has been money in politics since John Adams.

This case is about individual contributions.

How a slippery slope?

What about all the union contributions? I think there are more unions than Big Corporations. I NEVER hear liberals addressing that - kind of like it's OK if money comes from here, but not there.

To limit freedom of speech is to fly against the Constitution, and violate the First Amendment. You are a libertarian, yes?

Quoting PrimmednPunked:

I am of the belief that we need to take money out of politics.  Whoever has the bigger pocket book and whichever side has the bigger contributors usually ends up the winner, that is why we have the two party system.  

But I agree, there shouldn't be a limit on individual donations.  That is limiting their freedom of political speech.  I just don't how comfy I am with the thought of the super rich out there being able to donate any amount to any politician.  That could be a slippery slope.


Clairwil
by Gold Member on Oct. 9, 2013 at 3:35 AM
Quoting PrimmednPunked:

But I agree, there shouldn't be a limit on individual donations.

Why not?

Stopping someone giving unlimited amounts of money is not the same as stopping someone writing an opinion or speaking an opinion.

Everyone has an equal ability to say the same words, or write the same words.

Not everyone has an equal ability to give $1,000,000.

SallyMJ
by Ruby Member on Oct. 9, 2013 at 4:21 AM

ClairwillWhy is it OK for you that one person can finance a movie, earn a university degree, take an expensive vacation on taxpayer money, or attend a fundraiser - but that others can't choose to spend their money to help out multiple campaigns,  all less than the legal limits? That is inconsistent and hypocritical.

You are absolutely more than welcome to limit your own freedom of speech. Just not anyone else's. The Constitution is funny that way...

Some people choose to spend their money on cars, or education, or dance dresses, or charity, or political campaigns. Are you saying you have veto power over how individuals spend their own moneyI say maybe you should focus on working to veto how the government spends our money, rather than how I spend my money. Maybe you choose to eat out or get coffee everyday - and I choose to save up that money and support candidates of my choice. Legal activities.

Who are you to say what I can buy or spend my money on? Especially when your left-wing MSM trashes my candidates and kisses the butts of yours? Not exactly an even playing field - My candidates need my donations more than yours need yours.

What if I don't like how you spend your own money? I pretty much have to get over it. So should you.

You may feel it's icky -  but it's still Constitutional.


Quoting Clairwil:

Quoting PrimmednPunked:

But I agree, there shouldn't be a limit on individual donations.

Why not?

Stopping someone giving unlimited amounts of money is not the same as stopping someone writing an opinion or speaking an opinion.

Everyone has an equal ability to say the same words, or write the same words.

Not everyone has an equal ability to give $1,000,000.


Clairwil
by Gold Member on Oct. 9, 2013 at 5:00 AM
Quoting SallyMJ:

ClairwillWhy is it OK for you that one person can finance a movie, earn a university degree, take an expensive vacation on taxpayer money, or attend a fundraiser - but that others can't choose to spend their money to help out multiple campaigns,  all less than the legal limits? That is inconsistent and hypocritical.

It isn't up to me.   It is up to each individual society, to decide which political system they which to use to run their society.

I was talking generally, not specifically about America.

And I don't see it as being intrinsically wrong, if a particular society decides that in order to make sure the governments that get elected fairly reflect the will of the whole electorate, rather than disproportionately the wealthy within the electorate, they need to limit the ways in which wealth can be used in influence the electoral process.

Is that a choice America will make?   I don't know.   They've made some baby steps in that direction, but currently, by and large, the candidate that ends up as president is the candidate for the party that raised the most in donations.

Is that a choice America should make?   I think it might benefit from going a bit further along that route, but I don't think it would suit the American character to make the election process entirely fair.   Love it or loathe it (and personally I rather like it), America is what it is.

Clairwil
by Gold Member on Oct. 9, 2013 at 5:04 AM
Quoting Clairwil:

And I don't see it as being intrinsically wrong, if a particular society decides that in order to make sure the governments that get elected fairly reflect the will of the whole electorate, rather than disproportionately the wealthy within the electorate, they need to limit the ways in which wealth can be used in influence the electoral process.

And, specifically, I don't see it as being a 'freedom of speech' issue.

Contractual freedom (the freedom for two consenting individuals to agree a contract between themselves, without an outside power having a veto) is, while worthwhile, something distinct from the freedom to express opinions in public, and is something that should be argued and defended upon its own merits, not trying to leech off the justifications used to defend freedom of speech.

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