The best free speech money can buy
Supreme Court Justice Samuel Alito calls it a “wild hypothetical” the idea that there’s a potential corrupting effect in one person wanting to contribute so much so as to help fund every political contest in a given election year. And yet, the case now before the high court stands on precisely that premise; Alabama businessman Shaun McCutcheon, in his suit against the Federal Election Commission, calls it an abridgment of his free speech rights under the First Amendment that his giving the maximum aggregate amount in any one election tops out at only nine races and prevents him from contributing to the “hypothetical” 500+ that he might like to help fund, given the opportunity.
Some have dubbed McCutcheon’s case, now before the U.S. Supreme Court, the sequel to its Citizens United decision that helped open the floodgates to spending by unions and corporations, the upshot being the 2012 election became the most expensive ever.
Currently, no one campaign donor can give more than $123,200 in a two-year cycle — $48,600 to candidates, $74,600 to PACs, with contributions to individual candidates maxing out at $2,600 — in any one contest. These limits emerged from the court’s 1976 Buckley vs. Valeo decision, wherein the court drew a sharp distinction between contributions to candidates and expenditures by campaigns, the former being more subject to a corruptive influence, it reasoned, while the latter was more the product of direct personal expression, and therefore protected speech. Sadly, the court seems poised to blur that distinction and in doing so is on the verge of muffing a decision as badly as it did in 2010 when it ruled that limiting independent campaign spending was also a free speech violation. If the court rules in McCutcheon’s favor — because individual limits would likely stay in place (until they too are challenged) — some fear campaign donors could pour as much as $3.5 million into as many races as they want, according to some estimates, and then that greater amount could be “churned” around in a number of different ways to help bypass how much can be given to any one candidate, party or political action committee.
In 1976, the Supreme Court maintained that restricting spending restricts speech and the free flow of ideas, and argued that the more money injected into a political contest improves the quality of that speech. They wrote: “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration and the size of the audience reached.”
Ignoring for a moment just how lacking in substance political campaigns actually are, the ‘76 court still had it spectacularly wrong. The injection of a great volume of money from the few who have it to spend has done much more to restrict the quality of the conversation, whether those few be donors or candidates. It would have been better to limit campaign spending in order to accommodate the fighting chance of a third party than to have our discourse subjected to this outcome, the concentration of too much “free speech” in too few hands.
It’s on this argument that McCutcheon could hinge, with the court forced to wrestle with the prospect of an individual donor and his contribution caps having to compete with a corporation or union whose spending is encumbered by no such disadvantage. Indeed, suggest proponents of striking down donation limits, allowing donors to give directly to candidates could have the effect of less money being poured in to Super PACs and political advocacy 527s. That scenario seems unlikely; billionaire casino owner Sheldon Adelson gave $70 million to Super PACs in the last election; if McCutcheon hands him the opportunity to spend $3.5 million on an entire election year’s slate of political candidates, how likely would he be to curtail spending on a Super PAC? According to Solicitor General Donald Verilli, at that amount, it would only take 450 donors to equal the total spent in all of the congressional races in 2010, $1.5 billion. “Less than 500 people can fund the whole shooting match,” Verilli told the court last week.
Individual contribution caps are arbitrary numbers, of that there’s no question. And they result in an arbitrary aggregate limit, which subsequently results in an arbitrary number of campaigns that one person can donate to. Justices’ rhetorical questioning about how contributing to nine races is non-corrupting but contributing to 10 is corrupting is the real “wild hypothetical.” The ‘76 court’s Buckley decision solidly upheld the potential for corruption in donating directly to candidates, indeed our political history is rife with examples of it. Given that quite well recognized and often-realized reality, the court’s heebie-jeebies about the perils of limiting “free speech” seem remarkably misplaced.