National Journal, contributing to the perennial wringing of hands among the political puritans who comment on affairs of state, has proclaimed super PACs to be an “existential threat to the old order.” These groups are said to have overwhelmed the once-intimate bond between candidates, parties, and voters.
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.
In a recent column Dahlia Lithwick first mourns the likelihood that Steve Colbert’s new gig on the Late Show will lead him to give up his crusade for campaign finance reform. She then bemoans the Supreme Court decisions that permit people to spend money to elect candidates of their choice and to donate to all the candidates that reflect their views.
But she never pauses to consider why Stephen Colbert should be privileged to use the influence that comes to him from his position as a televised satirist, while people who work for living cannot use some of their hard-earned cash to proselytize for their views or support their own political champions. Her blindness stems from two facts. First, she herself is part of the media class. Second, that class is largely of one political persuasion —her own left-liberal one. Indeed, when Colbert is not pressing for campaign finance reform he is relentlessly attempting to make those on right look like idiots by playing a buffoonish conservative talk show host.
Restricting independent campaign expenditures and donations increases the power of other forms of political influence. Campaign finance “reform” can thus be understood not as a struggle to protect the democratic interests of the 99 percent, but as an effort to entrench the oligarchy of the information class.