WASHINGTON, April 7, 2014 – The Supreme Court’s decision in McCutcheon v. FEC last week struck down aggregate limits on campaign contributions. To some critics, that further opens the way for wealthy individuals like the Koch brothers and corporations to purchase elections and national policy.
The ruling goes beyond the court’s 2010 decision in Citizens United v. FEC, resting on the same conclusion: Limits on political money may only pass constitutional muster if they present a direct threat of quid pro quo corruption.
Writing for the majority, Chief Justice John Roberts observed, “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties.”
Both here and in Citizens United, Roberts has raised a high bar. If the composition of the court remains unchanged, the odds are good that challenges to remaining restrictions on political contributions will fall. The court eliminated the $123,000 limit that individuals may contribute to combined PACs, parties and candidates during an election cycle, and the $2,600 per year limit on direct contributions will almost certainly be challenged.
The New York Times response was scathing:
The Supreme Court on Wednesday continued its crusade to knock down all barriers to the distorting power of money on American elections. In the court’s most significant campaign-finance ruling since Citizens United in 2010, five justices voted to eliminate sensible and long-established contribution limits to federal political campaigns. Listening to their reasoning, one could almost imagine that the case was simply about the freedom of speech in the context of elections.
“There is no right more basic in our democracy,” Chief Justice John Roberts Jr. wrote in the opening of his opinion for the court in McCutcheon v. Federal Election Commission, “than the right to participate in electing our political leaders.”
But make no mistake, like other rulings by the Roberts court that have chipped away at campaign-finance regulations in recent years, the McCutcheon decision is less about free speech than about giving those few people with the most money the loudest voice in politics.
The outrage expressed by the Times and by other critics of the decision is misplaced. Their central argument is that Roberts is dead wrong on a crucial point: Money is not speech. At the same time, many of them constantly request money from donors in order to combat the pernicious effects of speech by people like the Koch brothers. In the messaging war between liberals and conservatives, money is quite clearly speech.
Between 1989 and 2010, the Koch brothers contributed a total of $2.58 million to PACs, political parties, and federal candidates. (By comparison, George Soros, the left wing’s answer to the Koch brothers, gave $1.75 million.) Between 2001 and 2010, they donated over $1.5 million to so-called 527 groups, which are non-profit, tax-exempt organizations that are allowed to raise money for political activities including voter mobilization efforts, issue advocacy and other actions. (Soros donated over $32 million.) Their lobbying expenditures topped $50 million ($12 million for Soros).
The Koch brothers and George Soros have spent vast amounts of money in their attempts to sway politics and public policy, with much of that expenditure going to activities that fall easily under the category of “speech.” More significant are their charitable contributions to universities. The Koch brothers have given hundreds of millions of dollars to universities and art foundations, money that has been characterized by the left as an attempt to buy academia. Soros has donated millions to university journalism departments, an activity that could easily be characterized as an attempt to “buy speech.”
The corruption feared by the people who created modern campaign finance laws 40 years ago in the wake of Watergate was the corruption of politicians for sale. But politicians aren’t easily able to convert campaign contributions into personal wealth. Campaign donations are useful to politicians only to the extent that they allow campaigns to persuade voters. That is, they are useful only to the extent that they really are speech.
Lawrence Lessig, a campaigner against “dependence corruption,” argues that equating money to speech allows wealthy people to dominate the political discussion. He is absolutely correct that wealth conveys the power to communicate more widely and more effectively. The question is whether that means that speech rights should be curtailed. The argument is almost that speech rights are rivalrous – that the more you have, the less is available for me.
The conservative response is that the solution isn’t to restrict and equitably distribute speech, but simply to allow others to turn up the dial. If you don’t like my speech, talk louder. When it comes to news media, that’s a principle that liberals embrace; if you don’t like my editorial, write your own. If conservatives think the media are liberal, they should talk louder.
Chief Justice Roberts’ opinion simply transfers that principle to political speech. Whether that is a wise move will continue to be debated, but if money is speech for the New York Times, it is hard to argue that it isn’t speech for politicians, George Soros and the Koch brothers.
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