The First Amendment protects assembly, speech and the resources that make speech possible. Yet the rules governing political speech in the United States are fraught with limits, red tape and restrictions so complex that the average person is deterred or unable to engage in the process.
The Supreme Court has long recognized that limits on campaign contributions infringe on First Amendment rights. This week, the court is considering whether there is a compelling government interest in limiting the size of political contributions that justifies those intrusions on the right to free speech.
On Oct. 8, the Supreme Court heard oral arguments in McCutcheon v. Federal Elections Commission. Shaun McCutcheon is an Alabama resident who wanted to make political contributions of $1,776 each to 27 Republican candidates for federal office in 2012.
Federal law caps an individual’s donations to a political candidate at $2,600, and “aggregate” total political contributions at $48,600 per cycle. McCutcheon could donate up to $2,600 to 18 candidates, but not 19—or $1,776 to 26 candidates, but not 27.
Much ink has been spilled attempting to justify this arbitrary cap. In the 1976 case Buckley v. Valeo, the Supreme Court drew a distinction between campaign contributions and campaign expenditures. Effectively, the terms hinge on whether the speech flows directly from individuals into politics, or whether it passes through a campaign. Expenditures are campaign communications, dollars spent that expressly advocate for or against a specific candidate, independent of any committee, party or the candidate himself. Contributions are the dollars individuals spend to promote an issue or campaign.
The legal difference is, in the words of Chief Justice John Roberts, that the “transformation of contributions into political debate involves speech by someone other than the contributor.”
The larger point is that both contributions and expenditures contribute to political debate. Their impact on discussion and vulnerability to corruption is the same. Neither type of speech should be restricted. Limitations on either type of spending should be reviewed under strict scrutiny, because both implicate the First Amendment. The question justices repeatedly ask about the difference is: What good is the right to speak if the government restricts the right to distribute that speech?
Only corruption can justify intrusions on the freedom to give to whomever you choose, in any amount. The Buckley court upheld a provision in the 1974 Federal Election Campaign Act limiting campaign contributions based on the possibility of a connection between contributions and quid pro quo corruption. Actual corruption is not necessary to justify a contribution limit; the mere appearance of corruption is enough.
As dubious standards go, the appearance-of-corruption test is a doozy. Influence, partisanship and negotiating leverage are not only inextricable from politics; they are precisely politics’ beating heart. If anything, the attempt to reduce the idea of corruption to the flow of contributions ignores the much larger problems of undue influence, backroom dealings and legislative favoritism.
Since the federal government started protecting Americans from the appearance of corruption in 1974, government corruption has not decreased. Even without the IRS’ recent actions to squelch speech by political opponents, public confidence in the government is on the decline.
In fact, there is a strong correlation between a lack of contribution limits and people’s perception of how well-governed a state is. Brad Smith at the Center for Competitive Politics cites Governing magazine and Pew Charitable Trusts periodic polling, indicating that five of the top 10 “best-governed” states were among the 12 states without political contribution limits, while nine of the 10 “worst-governed” states did limit contributions. People trust government the most when government is most accessible to them.
The Buckley distinction has proven unworkable because of the connection between contributions and expenditures. If each individual’s power to contribute is limited, politicians must spend more time fundraising. The founders conceived of a political process that would allow social and political factions with more popular support to pool this support and promote their causes.
Finally, contribution limits make it more difficult for fresh candidates to compete with entrenched political powers. Candidates already in office enjoy a platform, and when individual contributions are limited, this platform can present an insurmountable obstacle to greener contenders. Entrenchment is distinct from popular factions, because factions must operate by gaining support. Entrenched political power must do nothing more than silence challengers.
Government is a contract among individuals. Individuals trust government more when they are permitted to engage with it. Restricting individuals’ ability to speak under the current legal limitations is arbitrary, unconstitutional, and a major inhibition to the democratic process.
Free speech is the bedrock of democracy, and campaign spending is speech. The Supreme Court should overturn aggregate spending limits to permit individuals to speak freely. Four decades of dysfunctional campaign finance regulations are enough.