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. Continue Reading →