In a sharply divided ruling issued Monday, the U.S. Supreme Court furthered the country’s journey down a path where money talks and less-well-heeled voices are correspondingly muted.
The 5-4 decision sweeps away Congress’ or anyone else’s ability to cap the amount of aggregate campaign contributions individuals can give to a suite of federal candidates or committees in any given election cycle. Now, individuals endowed with sufficient resources can hedge their bets with as many candidates as they choose and, according to the court’s majority opinion, simply be expressing their First Amendment right to free speech. The decision turns on its head all sorts of court precedent – except for the abhorrent Citizens United decision – that aimed to extend such rights to all Americans, not just those with money to burn.
It is a rather cynical view of the First Amendment. More importantly, it is a dangerous one that creates a hierarchy wherein some forms of speech – namely that expressed through dollars – are more equal than those that do not carry a monetary value. Put simply, money talks and, as has become increasingly clear, politicians listen. With Monday’s McCutcheon decision, the Supreme Court is codifying and expanding that troubling relationship.
The relative good news, for now anyway, is the McCutcheon ruling does not do away with limits on what each individual can contribute to an individual candidate or committee. That is capped at $2,600 per candidate in primary and general elections. Justice Clarence Thomas wrote in a separate opinion this limit could be unconstitutional, but the majority opinion only dealt with the limits on aggregation – how many candidates can receive that $2,600. Before Monday’s decision, individuals could contribute no more than $48,600 to candidates or $74,600 to committees. Now, the sky’s the limit.
Chief Justice John Roberts wrote the majority opinion that hangs this unlimited contribution clause on the notion that caps unduly impinge on First Amendment rights to spend – i.e. speak – freely, regardless of how icky we find the cozy relationship between donations and elections to be.
“Money in politics may at times seem to repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests and Nazi parades – despite the profound offense such spectacles cause – it surely protects political campaign speech despite popular opposition,” Roberts wrote.
True, except for the fact campaign “speech,” unlike the other repulsive examples Roberts cited, has the very real potential to profoundly influence policy – even if he is pretty sure it probably will not. That runs directly counter to language in the Buckley v. Valeo decision, the court’s first campaign-finance ruling from 1976, which said 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.”
Except for this time, it is those with money whose speech is being enhanced at the expense of those without.
The McCutcheon ruling misses the point the dissenting opinion made crystal clear: This is not about protecting speech we may find repugnant. It is about the underpinnings of our democracy.
“Campaign finance laws recognize that the First Amendment ... cannot serve its purpose unless the public opinion it protects is able to influence government opinion,” wrote Justice Stephen Breyer. “Campaign finance laws recognize that large money contributions can break that chain. When money calls the tune, those ideas, representing the voices of the people, will not be heard.”
