Friday, October 31, 2014
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Did the Supreme Court ‘open the floodgates’ for unlimited campaign contributions?

The U.S. Supreme Court on Wednesday ruled 5-4 that a cap on the total amount of money donors can give to political campaigns – so-called “aggregate contribution limits” – are unconstitutional.

Such limits, Chief Justice John Roberts wrote for the majority in McCutcheon v. FEC, “intrude without justification on a citizen’s ability to exercise the most fundamental First Amendment activities.” But Justice Stephen Breyer in his dissenting opinion warned the decision “undermines, perhaps devastates, what remains of campaign finance reform” and “will open a floodgate.”

The court maintained individual contribution limits, however; donors may still only give $2,600 to a candidate for federal office. But given the court’s latest decision, should there be any limits at all on money in politics? Or is it time to amend the Constitution? Ben Boychuk and Joel Mathis, the Red-Blue America columnists, weigh in.

Ben Boychuk

The Supreme Court this week didn’t quite kill campaign finance “reform.” Which is a pity. It should have.

It’s an article of faith among some liberals that the court in 2010 undid “100 years of precedent” in the unjustly maligned Citizens United v. FEC decision. They’re wrong.

Five justices recognized in that case that the point of the First Amendment is to use political speech to influence elections. (Burning flags and dancing topless are bonuses.) So the court tossed the arbitrary rules limiting how independent groups – such as Citizens United – may raise and spend money to shape public opinion.

This week, the court threw out another arbitrary and harmful burden on First Amendment speech. Federal law had capped at $48,600 the total amount one person could give to all federal candidates over a two-year election cycle. Why $48,600? Because Congress said so, that’s why.

Although speech may be free, influential speech costs money. Shawn McCutcheon, an engineer from Alabama, wanted to give $1,776 to a number of candidates. But his donations would have exceeded the federal cap, and so had to be stopped.

Justice Roberts in his opinion made the simple point that “the government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Obviously.

Ideally, there should be no limit on how much an individual can give to a political candidate. But unlimited money would require absolute and immediate transparency.

The rule should be that if you give to political campaigns, you must do so publicly. It would help guard against (but never truly eradicate) corruption. True, some donors would rather remain anonymous, for fear of harassment but sometimes for less than noble reasons. But for disclosure to be taken seriously, failure to comply should come with huge fines for donors and candidates.

If you really want to end the role of “big money” in politics, get politics out of “big money” and cut the size of government. Until then, let the money and the speech flow freely – as long as it’s disclosed completely.

Joel Mathis

Welcome to the New Gilded Age, folks.

To be fair: We already lived in a society where the middle class was shrinking, its income stagnant, while America’s richest citizens reaped a disproportionate share of the economy’s rewards while avoiding anywhere near a proportion of the responsibility they bore for nearly destroying the economy back in 2007.

The Supreme Court’s recent campaign finance rulings, though, put a feather in the cap of that trend – making it more difficult for grassroots movements to break through into the public consciousness, and giving America’s richest political activists near-unlimited influence over the workings of our government.

Some well-meaning advocates of the court’s decisions suggest that sunlight is the best disinfectant, that full disclosure of donors and their contributions will mitigate the damage that might be done by lifting the caps.

The problem? There are already efforts underway to extend a veil of secrecy to political donations, to preserve those donors from the horrors of having their political views made public.

The second problem? America’s system of campaign finance disclosure is, essentially, a well-meaning sham. A faculty paper last month from faculty at the Benjamin Cardozo School of Law concluded as much:

“We find that compliance with existing disclosure regulations is inconsistent and that the current regime fails to identify the most potentially influential players in the campaign finance system,” the authors wrote. “In so doing, the current system fails to provide basic facts about how candidates (and committees) finance their campaigns.”

There’s something we mostly hate in America: It’s called a “heckler’s veto” – generally understood to violate the spirit of the First Amendment – and it occurs when critics of a speaker become so loud and annoying that they drown out that speaker’s message.

The Supreme Court has now created a “plutocrat’s veto” – and in reality, it only expands free speech rights for those who can afford it. Those who can’t? Their voices are about to be drowned out.

Ben Boychuk (bboychuk@city-journal.org) is associate editor of the Manhattan Institute’s City Journal. Joel Mathis (joelmmathis@gmail.com) is associate editor for Philadelphia Magazine. Visit them on Facebook: www.facebook.com/benandjoel.

Ben Boychuk and Joel Mathis

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