In Praise of McCutcheon

The Supreme Court has come down with its ruling in McCutcheon v. FEC, eliminating all limits on campaign contributions on the theory that such limits constitute an unjustifiable infringement on First Amendment-protected speech. Predictably, there is a great deal of Sturm und Drang about the Court’s decision, but as a First Amendment-absolutist, I am quite pleased. If letting Nazis march in Skokie and letting people burn the American flag count as protected speech–and as repelled as I am by those activities, I believe that they should be protected by the First Amendment–then stating one’s political preferences via financial donations to one’s preferred political candidates should count as protected speech as well.

Law professor Bradley Smith tells us about the facts that gave rise to the case:

It all began when the plaintiff in McCutcheon v. FEC, Shaun McCutcheon, expressed interest in contributing $1,776 to a number of candidates he supported. Contributions to candidates are already limited to $2,600 per election, so it appeared he was well within the law. However, beyond the limits on giving to any individual candidate, McCutcheon learned that the law limited the total amount he could give to all candidates to $48,600.

This meant that McCutcheon could make his desired contribution of $1,776 to just 27 candidates — or just 13 if he wanted to contribute that amount in both the primary and general elections. And if McCutcheon wanted to contribute the legal maximum of $2,600 in each election — or $5,200 per candidate, combining primary and general elections — he could support only nine candidates.

McCutcheon challenged the law on the eminently sensible grounds that if Congress has deemed a contribution of $2,600 per election ($5,200 per cycle) to be a non-corrupting amount, then Candidate 10 was no more corrupted by the contribution than Candidate 9. Simply put, the aggregate limits served no anti-corruption interest. And the Court has long held that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Professor Smith then goes on to discuss the import of the ruling:

The practical results of this decision will be to make fundraising easier for party committees and candidates. That is almost certainly a good thing and should help ease concerns that “super PACS” are too influential with parties. Don’t expect a landslide in new giving, however, as the old aggregates did not affect most donors, who contribute to only a few candidates.

Also of note are the thoughts of political scientist Ray LaRaja:

The Supreme Court ruled Wednesday in McCutcheon v Federal Election Commission about the constitutionality of setting limits on the total amount of money a donor may give to various political committees in a given election. I wrote earlier here that a decision in favor of McCutcheon to eliminate aggregate contribution limits would not necessarily worsen the campaign finance system, and might even improve it.  At the very least, I do not think the recent decision warrants the sky-is-falling rhetoric found in The New York Times.  Tellingly, as the court opinion points out (see Footnote 7), there is no evidence that donors have systematically exploited campaign finance rules in the 30 states where a McCutcheon world already exists, which means states where donors face a cap on contributions to a single candidate but may contribute the maximum donation to as many candidates as they want.

Be sure to read the whole thing for a list of ways in which McCutcheon may be a significant improvement on the status quo. To be sure, LaRaja has some concerns, and no one should expect a situation in which there will be no hiccups whatsoever. But there is little to justify the moaning and wailing that has emerged from some quarters in the aftermath of the Court’s ruling in McCutcheon, as the bulk of LaRaja’s post points out.

Equally noteworthy are the thoughts of law professor Eric Posner, who points out that the ruling in McCutcheon “imposes a tax on millionaires,” and who links to a story that notes that “[w]hile Democrats publicly bashed the decision, they were far more positive in private. One top Hill Democrat suggested Democrats had larger number of donors, and they can now go back and ask these supporters for even more money.” Something to remember while the Sturm und Drang continues from critics of the Court’s ruling.

Finally, let’s give the microphone to Ilya Shapiro:

What kind of bizarro world do we live in where a near majority of Justices of the United States Supreme Court criticizes a First Amendment ruling for being overly concerned with “the individual’s right to engage in political speech”? Where these same jurists instead elevate “the public’s interest in preserving a democratic order in which collective speech matters”? Are these four reactionary horsemen who won’t countenance anti-war protestors, marches against oppressive laws, and other anti-establishment speech-acts? Or perhaps they’re censorious troglodytes inveighing against flag-burning, nude dancing, and other emotion-riling forms of expression?

It turns out no, that this statist-majoritarian cant is the highest explication of so-called “liberal” dissent. We’ve always been at war with Eurasia (at least until those in charge decree that our eternal enemy is Eastasia), etc.

Rubbish. Just as the government can’t limit the number of hours that Oprah broadcasts or issues that The New York Times publishes – lest they “unduly” influence our political system – it can’t restrict the money that someone wants to spend on campaign donations lest he “skew” the marketplace of ideas. Heck, I’ve been part of enough SCOTUSblog symposia that I’m sure glad there’s no federal limit on how much analysis someone can provide on a website that’s read by all the key opinion-making eyeballs!

Despite the alarming five-to-four split among the Justices, McCutcheon is an easy case if you apply well-settled law (let alone the political-speech-protective first principles upon which this nation was founded):  (1) Preventing quid pro quo corruption (or the appearance thereof) is the only valid basis for regulating the finance of political campaigns; (2) restrictions on the total amount an individual may donate to candidates and party committees don’t serve that bribery-prevention interest and thus violate the First Amendment; (3) that’s it; case closed.

Quite so. This was the only justifiable ruling that the Court could issue, short of overturning Buckley v. Valeo itself, which Justice Thomas, Shapiro and I are for. Absent that one imperfection, I’ll take the ruling in McCutcheon. First Amendment freedoms are worth the most robust of defenses, and the Court provided such a defense in its latest ruling. More opinions like this one, please.

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