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Protecting Political Expression in Campaigns as much as Political Dissidence

The Supreme Court’s analysis in McCutcheon v. FEC, its recent campaign finance decision, is even more important than its result. The holding of the case was to strike down so-called aggregate limits on donations to federal candidates. Under the invalidated law there was a ceiling on total contributions of $48, 600 for candidates running for federal office and $74,000 for other political committees. After McCutcheon, candidates are still limited to donating $2, 600 to a candidate but can give to as many candidates as they choose.

But it is the reasoning, not only the result, that is crucial to protecting our liberty, because it portends further deregulation of p0litical expression in elections. From the very first sentence, Chief Justice Roberts makes clear that general First Amendment principles are at stake in the case. Throughout the opinion he refers to cases that have nothing to do with campaign finance regulation but famously protect individual expression against the majority will, like Cohen v. Virginia, the case that protected the ability of a protestor calling for an anatomical impossibility to be performed on the nation’s selective service system. For the Chief Justice, those who want to express themselves are the new dissidents who must be protected from the wrath of legislators egged on by majority passion (and their own interest in protecting their incumbency). People who want to participate in campaigns to support a message or a candidate are not different in kind from those who speak in a vulgar manner or a burn a flag. His is a frontal challenge left-liberals’ support for the regulation of political campaigns, showing that they exercise only high double standards in standing up for free speech rights only when it suits their long-term objectives.

Appealing to ordinary First Amendment principles is essential to winning the debate over campaign finance, because advocates  of regulation cannot succeed unless they forsake the neutral principles that are free expression’s best guarantees. For instance, the claim that money is not speech is the favorite slogan of campaign reformers. It is used to justify the regulation of independent expenditures—money spent by citizens on their own at election time to send messages about the campaign. But ordinary First Amendment principles prohibit regulation of expenditures when that regulation is targeted at speech. Thus, a government regulation that limits the amount of money that a newspaper could use to pay its editorial writers would be invalidated without a second thought. And rightly so: to speak effectively one needs resources. The government can successfully suppress speech by restricting the money used to support it no less than by directly regulating the speech itself. Thus, it would be as wrong to prevent independent expenditures by citizens as it would to prevent expenditures by a newspaper.

In McCutcheon, time and time again, The Chief Justice turns to settled First Amendment principles to reject defenses of the aggregate limits on donations. For instance, to the government’s claim that the aggregate limits are necessary to avoid circumvention of individual limits, he begins by noting that First Amendment law requires a close fit between the prohibition and the evil to be avoided. Unless the government can demonstrate that circumvention is a realistic problem rather than a theoretical possibility, it loses. This First Amendment principle stands in contradistinction to what advocates of campaign reform want—to take the rational basis review that justifies government intervention in economic life and import it into the regulation of political speech.

In my next post, I will suggest that ordinary First Amendment analysis provides a powerful scythe to cut down more of the tangle of restraints on freedom that constitute modern campaign finance regulation.

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