Constitutional Opinions

John Roberts Continues His Comeback

Next shoe drops on campaign finance restrictions.

By 4.2.14

UPI
Send to Kindle

By a 5-4 vote along the usual “conservative versus liberal” fault line, the Supreme Court has struck down aggregate limits on political contributions. Currently, the federal government restricts the amount of money a person may contribute to a political candidate, party, or PAC — these are called “base limits.” Base limits were not the subject of this case, McCutcheon et al vs FEC; instead the issue was the total amount a person may contribute, complying with base limits, across multiple candidates, parties, and committees. The effect of aggregate limits was to limit the number of candidates, parties, or PACs a donor could contribute to (without having to reduce contribution amounts to comply with the aggregate limit).

As the Court’s opinion, written by Chief Justice John (“Obamacare is really a tax”) Roberts,  lays out,

For the 2013—2014 election cycle, the aggregate limits in BCRA (the Bipartisan Campaign Reform Act, also known as “McCain-Feingold”) permit an individual to contribute a total of $48,600 to federal candidates and a total of $74,600 to other political committees. Of that $74,600, only $48,600 may be contributed to state or local party committees and PACs, as opposed to national party committees. All told, an individual may contribute up to $123,200 to candidate and non-candidate committees during each two-year election cycle.

As of today, those limits no longer exist.

The majority’s decision is a tremendous blow for political liberty and free speech — which is no doubt driving Democrats crazy at this moment. Just wait until you read the next round of “The evil Koch Brothers” panic coming to MSNBC and an editorial page near you in the next several hours.

The opinion’s key summary paragraph, which must be quoted in its entirety in order to understand the Court’s full-throated defense of our Constitutional rights, is this:

Significant First Amendment interests are implicated here. Contributing money to a candidate is an exercise of an individual’s right to participate in the electoral process through both political expression and political association. A restriction on how many candidates and committees an individual may support is hardly a “modest restraint” on those rights. 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. In its simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits. And it is no response to say that the individual can simply contribute less than the base limits permit: To require one person to contribute at lower levels because he wants to support more candidates or causes is to penalize that individual for “robustly exercis[ing]” his First Amendment rights.

A few more highlights:

  • “Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”
  • “(G)iven the substantial mismatch between the Government’s stated objective (to prevent quid pro quo corruption and its appearance) and the means selected to achieve it, the aggregate limits fail…” In other words, the Court determined that aggregate limits do not prevent corruption (or the appearance of corruption) and therefore are unconstitutional because there is no other legitimate government purpose in regulating political contributions.
  • “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties.”
  • “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.”

But of everything the Court said, nothing has more wide-ranging impact — and nothing should cause more careful consideration by the would-be censors, levelers, and silencers — than this statement for the ages, which I see as at least a partial redemption of Roberts (who I hope feels some need of redemption):

In assessing the First Amendment interests at stake, the proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The whole point of the First Amendment is to protect individual speech that the majority might prefer to restrict, or that legislators or judges might not view as useful to the democratic process. [Emphasis added.]

This is largely in response to the liberal justices’ dissent, written by Justice Stephen Breyer, in which he argues that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”

Breyer adds that the government’s interest (and therefore the Court’s interest) includes creating “a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.”

Breyer’s argument is a remarkably anti-constitutional argument in favor of a “tyranny of the majority” which the Founders were determined to prevent; sadly he got three other members of the Court to agree with a viewpoint that would make Madison and Jefferson shudder.

But Chief Justice Roberts would have none of it.

Roberts pointed out that a majority could pass laws that restrict free speech, which would not be acceptable even if they reflected the views of a majority of people or, of course, the views of the government. Further, “the whole point of the First Amendment is to afford individuals protection against such infringements. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting ‘collective speech.’”

For a Justice whom so many, including this columnist, pilloried for wishy-washy thinking in his effort to save Obamacare, Roberts’ statements in McCutcheon come through with dazzling clarity: “The degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process. The First Amendment does not contemplate such ‘ad hoc balancing of relative social costs and benefits.’”

The dissenting liberals suggest that the aggregate limits do in fact help limit corruption, and that “donors can and likely will find ways to channel millions of dollars to parties and to individual candidates…” Roberts says that the dissent’s scenarios “are either illegal under current campaign finance laws or divorced from reality.”

Roberts subtly chides the liberals’ confused logic on this issue: “The dearth of FEC prosecutions, according to the dissent, proves only that people are getting away with it.” William of Ockham might suggest that a lack of prosecutions for a particular kind of crime more likely means that it isn’t being committed very often. (This is especially true under the current administration: A group that would target conservative citizens with the IRS and subpoena reporters’ phone records would certainly go after supporters of Republicans who were committing real crimes, if that was actually happening.)

Not surprisingly, Justice Clarence Thomas, the most faithful-to-the-Constitution member of the Court, concurred in the judgment but scolded the Court for not taking this case as an opportunity to “reexamine” the constitutionality of campaign contribution restrictions more broadly.

People across the political spectrum are suspicious about the huge amounts of money that get poured into political campaigns. A presidential campaign may never again cost less than a billion dollars. For some donors, it’s about principle. But for many, such as unions and the lobbying organizations for particular industries, it’s about making sure that government listens to their concerns. It is not unreasonable to worry about where the line gets crossed from “listening to” a lobbyist versus implicitly taking orders from him.

The problem with the entire campaign finance discussion is that it begs the question (using the proper definition of that phrase) of whether government is performing its proper and constitutional functions — and no more. In other words, campaign finance restrictions assume that government should do what it does, including its continual interference in free enterprise, whether through the tax code, earmarks, legislation or regulation, and therefore that those entities that may be impacted by government action have an interest in buying control of, or at least the attention of, people in government.

Rather than trampling on First Amendment rights while worrying about corruption, the right answer is given succinctly by economist Don Boudreaux who says, “If you want to get the money out of politics, you have to get the politics out of money.”

Get Congress out of picking winners and losers, directing taxpayer money to its favorite corporations and unions (who return the favor with contributions), over-regulating everything from food to health care to how to paint your house, giving tax loopholes to its friends, and so on.

Get rid of most of the federal government’s regulatory power; implement a flat personal income tax with a bare minimum of exemptions/deductions; abolish the corporate income tax; truly end earmarks. You get the idea.

If liberals are so desperate to get money out of elections, the answer is not to prevent people from spending their money as they see fit — doing so is no more effective than throwing a rock into a river and assuming the water will stop.  Instead, remove the incentive for those evil corporations (without whose products our lives would be far worse) and those evil conservatives and libertarians to give money to politicians.

Of course the only way to do that is to take away most of the coercive power of government, which is something no good Progressive would ever consider. Because nothing says “progress” like “do it my way, or else.”

It is surprising and disturbing that in a nation founded by men whose primary goal was to permit, even encourage, political differences and the free speech required to debate those differences, almost every form of speech is today more protected than political speech.

Today’s Supreme Court decision is an important step toward reasserting those Founding principles.

Like this Article

Print this Article

Print Article
About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.