ANOTHER TEST OF COURAGE FOR CHIEF JUSTICE ROBERTS- RESTORING FREE POLITICAL SPEECH
http://online.wsj.com/article/SB10001424052702304906704579113830197914224.html?mod=opinion_newsreel
The Supreme Court re-opens for business this week, and one of its first cases is a splendid opportunity to restore the First Amendment as a bulwark of free political speech. The result in McCutcheon v. FEC will likely hang on whether Chief Justice John Roberts has the courage of his constitutional convictions and is willing to overturn the misbegotten logic of Buckley v. Valeo (1976).
Alabama businessman Shaun McCutcheon and the Republican National Committee are challenging limits on the total amount of money a person can contribute to multiple candidates and political parties. In the 2011-2012 election cycle, Mr. McCutcheon donated $1,776 to each of 15 candidates as well as sums to the RNC and other political party committees. Though his donations were all below the legal limits to individual candidates and political parties, he was prevented by the aggregate limits from making the donations he wished.
Donors are currently limited to contributing $5,200 to a candidate for each election cycle ($2,600 each for the primary and general election). But they are barred from exceeding overall ceilings of $48,600 for direct contributions to candidates and $74,600 to non-candidate political committees. So though a contributor might give $1,000 to 48 candidates, further donations violate federal law, even if they are well below the $2,600 threshold per candidate.
This ought to be an easy call for the Court. In Buckley, the Justices allowed Congress to limit contributions based on the fear of corruption or the appearance of corruption. In the case of contributions to a single candidate, there is at least in theory the risk of a political quid pro quo, though that fear turns sout to have been exaggerated.
There is little such risk of quid-pro-quo corruption if a donor spreads his donations among dozens of candidates. Under the McCain-Feingold law, Congress already treats all “related” PACs as a single PAC and counts any donations earmarked for a candidate against the individual contribution limit to that candidate. A donor can’t evade the individual limits by donating to PACs.
However, the aggregate limits do restrict how much donors can participate in politics. A donor may want to contribute the maximum to 100 candidates but can’t. This violates his First Amendment right to political speech. The limits on aggregate donations also harm political participation by limiting donations to political parties. This has diminished the role of parties with the paradoxical result of empowering the wealthy who can donate to independent political groups without limit.
The Roberts Court has already recognized that laws limiting spending on political ideas are “censorship to control thought.” As Justice Anthony Kennedy wrote in Citizens United in 2010, “The First Amendment confirms the freedom to speak for ourselves,” and that includes spending on political speech. Eliminating aggregate spending limits is a logical extension of this principle.
The larger constitutional drama, however, will be whether the Justices use McCutcheon as an opportunity to go further and finally address Buckley. In that case the Court held limits on political expenditures to its “strict scrutiny” standard as a violation of free speech but allowed limits on contributions because of the risk of quid-pro-quo corruption. This was always dubious but looks even worse after 37 years of experience.
We now know that nearly all campaign contributions go to finance expenditures on political speech. They pay for TV ads, mailings or phone calls that advocate for a candidate or his ideas. There is thus no practical difference between a campaign donation and a campaign expenditure, and both are forms of political speech. As for the danger of corruption, the sheer amount of spending on politics today reduces the influence of any single campaign donor. Even large donations aren’t likely to buy corrupt favors in campaigns with many such donors and huge sums spent.
The Court seems interested in this broader question because it has granted argument time to GOP Senator Mitch McConnell’s lawyer Bobby Burchfield, who wrote an amicus brief arguing for holding contributions to the same “strict scrutiny” standard as expenditures. Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas have already signalled their readiness to overturn Buckley, and our guess is that Justice Samuel Alito would too.
Assuming the four liberals go the other way, that makes Chief Justice Roberts the swing vote. The left is already warning him in the media, much as they did so successfully last year in advance of his salvaging of ObamaCare. They will denounce a ruling they don’t like as “activist” though it would merely restore the First Amendment’s central role in protecting free political speech. Thanks to the historic blunder of Buckley, political participation is more heavily regulated today than are video games and pornography. That is not what the Founders intended.
The Chief Justice prefers to be an incrementalist, but now is the time to advance a core constitutional principle. The vote in McCutcheon will be 5-4 whether it is a narrow ruling striking down aggregate limits or a broader one striking down part or all of Buckley, and the liberal denunciations will be as loud. If President Obama is able to replace one of the five nonliberal Justices, the Roberts Court may never get another chance.
In 2007 in Wisconsin Right to Life v. FEC, the Chief wrote that “we give the benefit of the doubt to speech, not censorship.” The only way to honor that proper reading of the First Amendment is to restore the pre-Buckley constitutional order.
Comments are closed.
