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.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. gabe says

    Yes, after all, we would not want anything to get in the way of Michael (“I’ll surely be in Heaven”) Bloomberg’s $50,000,000 contribution to gun control efforts.
    Oops, i forgot, that is a liberal objective so it must be OK to spend money on it – after all(per Bloomberg) they are on the side of the angels!

    • Devin Watkins says

      I totally disagree with Bloomberg on this issue, but I think he should be free to spend whatever amount of money he wants getting his message out. If you haven’t already heard Bloombergs message you must be living in a cave, but that doesn’t make me agree with him…

      • gabe says

        The Benighted One may spend his money on whatever he chooses; my objection is to the convenient moral / constitutional gymnastics of the Left which condemns one yet praises the other.

  2. R Allen says

    I do not understand how the court got to the result in McCutcheon without reversing Buckley. In Buckley, the court held that limitations on the amount one can spend on any candidate involves only a “marginal restriction” of “free communication.” This is because “[a]contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” Are not aggregate limits, at least as applied to candidate spending, in effect limitations on the amount one can spend on a particular candidate? It seems the only way to avoid this is to reverse Buckley.

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