Money & Free Speech: The Supreme Court Weighs in Again

There has been a nationwide brouhaha over the recent Supreme Court decision, McCutcheon v. FEC, in which the Supreme Court struck down overall limits on campaign contributions.  Opponents of the ruling have basically said the same thing, that this decision means rich people, in this case a wealthy businessman named Shaun McCutcheon, can now spend unlimited amounts of money electing the candidates they prefer, and as a result will be able to “control” those candidates once they are elected.

Leave aside the fact that campaign contributions have long been recognized as a form of political expression, and therefore free speech.  Just as burning an American flag is constitutionally protected as a form of political protest (why else would one burn an American flag?), and therefore is considered free speech, so too is contributing to a candidate’s campaign a form of political approval, making it also a form of free speech, so it too is protected under the First Amendment.

What is more, the way our constitutional republic works, whenever citizens engage in any form of political activity, the burden is not on the citizen to justify that political behavior, but on the government to show that this political behavior is somehow in violation of our constitutional principles.  Thus in McCutcheon, the burden was on the federal government to prove that there were “compelling reasons” to limit Mr. McCutcheon’s right to express political approval through campaign contributions.  The Supreme Court ruled that the government failed to meet that burden-of-proof requirement.

One reason the court ruled the way it did is that there are federal laws on the books that have passed constitutional muster and still impose “base limits” on campaign contributions.  That is, the law says no single person can contribute more than $2,500 to a single candidate.  But Shaun McCutcheon did not violate this law.  He violated what the Federal Election Commission (FEC) said were “aggregate limits” on campaign contributions — meaning there are limits on the number of candidates Mr. McCutcheon could support.  In the 2011-2012 election he contributed $1,766 — well below the $2,500 ceiling — to 17 different candidates, but when he decided to contribute the same amount to 11 more candidates, the FEC stepped in.

As did the Supreme Court, saying that “aggregate limits” were a significant, as opposed to “modest,” restraint on the First Amendment’s free speech provisions, and therefore do not pass constitutional muster.

As an interesting aside, most newspapers with a liberal bent have bemoaned this decision, but, ironically, in deciding it the court used an apt analogy, saying, “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.”