Back in 1976, in Buckley v. Valeo, the High Court “soundly rejected” a limit on how much any one person can spend on his or her own campaign. The Buckley decision erred, however, in otherwise upholding a congressionally mandated contribution limit. By the Constitution, Congress has no authority to regulate speech; just read the First Amendment. And, to takes speech public, it takes money. Often, lots of it. But the Court reasoned that the “burdens” the donation limits imposed on First Amendment rights were justified by the important governmental interest in combating corruption and the appearance of corruption.
Now, granted, combating corruption is good. The appearance of corruption? Subjective . . . and inevitable, given the lack of practical limits on busybodying by government in private affairs. So, it’s hardly a proper basis for lawmaking. But the alleged specific “interest” is less problematic than the implied sleight-of-hand conception of rights. The Bill of Rights was intended to draw a clear line over which government power could not reach, while the Court’s method of weighing First Amendment issues reduces it to a flimsy compact that can be abrogated by government at any time.
Imagine going to your car dealership and seeking repair of a part under warranty, only to be told that the mechanic is weighing your right under the warranty against their compelling business interest. That, in essence, is the conventional judicial wisdom.
Buckley allowed Congress’s nose inside the tent. Since then, incumbents in Congress have been regulating the speech of their political opponents. Take a step back and consider: Why was there a Millionaire’s Amendment?
Campaign finance laws have long worked to the advantage of incumbents. This provision was no different. Incumbents in Congress wanted to blunt one of the few threats they face: a well-financed opponent. Disclosure laws already make it risky for any citizen or interest group to contribute to a challenger. Congress sought to tamp down on a remaining source for real financial competition. It is telling that even self-financing multi-millionaire challengers have a hard time defeating entrenched incumbents.
That’s why it seemed almost laughable to read Justice John Paul Stevens dissent, where he wrote that Congress was “motivated by proper and weighty goals.” Stevens went on to argue that limits on the quantity of speech were not only constitutionally permissible, but warranted.
Stevens compared voters to judges, explaining that judges are able to limit the time for argument in a case and the page length of legal briefs. He argued this allowed for greater deliberation. “It seems to me that Congress is entitled to make the judgment that voters deserve the same courtesy and the same opportunity to reflect as judges,” he wrote, “flooding the airwaves with slogans and sound-bites may well do more to obscure the issues than to enlighten listeners.”
Stevens and the speech-police style reformers first argued that there was too much money in politics. Now their true position emerges: There is too much speech.
Our problem, of course, is the very opposite of too much speech. It's too much government. And the way to start peeling back government is to enforce, once again, our basic rights, our rights as individuals.
The individual has an inalienable right to defend himself, and thus to keep, and if necessary, bear arms. Last week’s 5-4 Court ruling merely acknowledged that the prose of the Second Amendment addresses this right. And so must government.
Likewise, the individual has an inalienable right to speak out — especially politically. This can hardly co-exist with a Congress (made up of career politicians) micro-managing the finance rules for themselves and their opponents’ campaigns.
Last week’s Davis decision may not have been as sweeping as Heller, but it did two important things:
1. It lessened the control McCain-Feingold has on our political discourse, weakening incumbents’ ability to ride herd over the democratic process, and
2. It showed just how far the unconstitutional restriction of political speech has come, and how frighteningly far its supporters would like to go.
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