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FAGIN: Leave the courts out of First Amendment issues

Barry Fagin Published: April 10, 2014 0

Two weeks ago, I wrote about an important religious freedom case before the Supreme Court, Sebelius v. Hobby Lobby. We won't hear their decision for a while. But just last week the court announced its ruling in another important constitutional law case: McCutcheon v. FEC. The winner, by a split decision, was the First Amendment.

The usual media suspects are going to tell you that McCutcheon, along with Citizens United, is yet another nail in the coffin of democracy. They're wrong. SCOTUS simply applied the usual principles it applies when regulating any form of speech. The sad thing is that the decision was so close.

Campaign finance regulation is a messy business. Current case law says that Congress can regulate campaign contributions, but not spending. If Congress chooses to regulate contributions, it can do so for only one purpose: To avoid quid pro quo corruption. And even then, it must do so in the most narrowly tailored way that it can, because it is regulating political speech, a constitutionally protected activity.

Under current campaign finance law, you (and I mean you personally, not just an evil corporation) can can't contribute more than $2,600 to any one individual candidate. That's called a base limit.

But there's also a $46,800 limit on the total number of contributions you (and again, I mean you personally) can make over a two-year election cycle. That's the aggregate limit. $46,800 means that if you support a candidate in the primary and in the general election you can support at most nine candidates. Presumably, supporting nine people you like is fine, but ten makes you a corrupter of democracy in America who should be sent to prison.

Fortunately, Shawn McCutcheon didn't see things that way. He found 28 candidates he liked in the 2011-12 election cycle, and while every contribution he planned was below the base limit, by the time he was done he wanted to donate $54,400 to the candidates of his choice. He thought the First Amendment protected his right to do that. The court ultimately agreed.

Aggregate contribution limits serve no purpose. What possible reasoning could let anyone conclude that giving $5,200 to nine candidates each doesn't promote quid pro quo corruption, but that giving that much to ten does? More than that, money in politics is definitely unpopular. But it is precisely unpopular speech that the First Amendment protects. If that includes speech that upsets conservatives, as it surely has, than it must include speech that upsets liberals as well.

Chief Justice John Roberts, in the majority opinion, essentially accepted this libertarian argument. He wrote: "Money in politics may at times seem 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."

The court is simply arguing that the regulation of such speech, if attempted, must be done in as narrowly tailored fashion as possible, just as with any attempts to regulate what the First Amendment secures. Aggregate contributions fail that test.

What is disturbing is that four justices actually disagreed, believing instead that the court should take a more aggressive approach in avoiding the "corruption" in the marketplace of ideas. As if the Supreme Court, or any other branch of government, can or should be allowed to determine when the marketplace of ideas is corrupt and when it is not.

Do we really want the courts to determine how much influence the New York Times should have? Or the Koch Brothers? Do we really want Congress, or any group of elected officials, to decide how rich is "too rich" to be allowed to contribute, or how poor is "too poor" and therefore deserving of a greater voice? The mind boggles.

Better to let people contribute what they want to whomever they want, and let the chips fall where they may. It's not perfect, but the alternatives are far, far worse.

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Barry Fagin is a senior fellow at the Independence Institute in Denver and a successful plaintiff in the Supreme Court case of Reno v. ACLU et al. His views are his alone. Readers can write Dr. Fagin at barry@faginfamily.net.

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