If the government wants to regulate speech, it better have a very good reason.
“There is no right more basic in our democracy than the right to participate in electing our political leaders…and those who govern should be the last people to help decide who should govern.” Thus begins the Chief Justice’s majority opinion in McCutcheon v. FEC. This outcome of this case, decided by the Supreme Court this morning, struck down a law that limited the freedom of Americans to financially associate with the candidates, parties, and political organizations of their choosing.
The case decided today turned on a substantial infringement on our First Amendment right to freely associate.Already, those favoring more political speech restrictions have begun denouncing the decision, armed by Justice Stephen Breyer’s irresponsible suggestion that McCutcheon “eviscerates our Nation’s campaign finance laws.” There’s no serious reading of the Chief Justice’s opinion that supports such hysterical exclamation.
The case turned on a substantial infringement on our First Amendment right to freely associate — the so-called “aggregate contribution limit.” The aggregate contribution limit should not be confused with “base limits.” Base limits restrict the ability of any individual to give unlimited sums to a candidate, party, or PAC. Under current law, not affected by McCutcheon, a donor may only give $2,600 to any given candidate for each election, and $5,000 to a political action committee (PAC). Corporate and union contributions to candidates are prohibited, another restriction that was not at issue in today’s decision.
The “aggregate limit,” however, stacked another cap over the base limits, and prevented any donor from, for example, giving the maximum legal contribution to nine candidates in both the primary and general elections. As Chief Justice John Roberts recognized, such a rule is nonsensical. “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.” And it is pretty hard to see how, if the first nine candidates are not corrupted, candidate 10 will be corrupted by the same size contribution.
In a desperate effort to defend the constitutionality of the aggregate limits, the government offered the Court a series of wild hypotheticals, completely unbound from common campaign practice or common sense. These examples, and others suggested at oral argument by Justices Breyer and Elena Kagan, involved elaborate Rube Goldberg giving schemes. These theories all had two things in common — either existing regulations made them entirely implausible, or existing regulations made them entirely illegal. It’s a testament to how complex the remaining campaign finance regulations are that four Supreme Court justices were unable to recognize how quickly their hypotheticals would place the conspirators involved at the top of the FEC’s enforcement priorities.
Indeed, as the Chief Justice noted, few states have aggregate contribution limits. Yet, the government could point to zero examples of activity similar to the scary stories in Justice Breyer’s minority opinion. In response, Justice Breyer suggested that the ne’er-do-wells are simply too smart and cunning to be caught.
If nothing else, the real takeaway from today’s opinion is that federal and state governments are not permitted to squelch First Amendment rights based on a fear that monsters are under the bed. Regulatory advocates both on and off the Court have long credulously accepted wild fears as a substitution for hard facts in this area. This has led to a tremendous regulatory overkill. For example, in recent years, governments have defended contribution limits against the deceased, demanded the donor lists of groups which print nonpartisan voter guides, and forced four citizens to register with the state in order to run $600 worth of radio ads. But from now on, governments will have to defend their campaign finance statutes with grounded, concrete reason and facts — not flights of fancy.
For too long, governments have been able to defend constitutional deprivations under flimsy reasoning that would be laughed out of court if applied to a law restricting virtually any other liberty protected by the Bill of Rights. (Can anyone imagine a court refusing a shoplifter’s release under Miranda merely on the grounds that he might commit, hypothetically, another — perhaps even worse — crime?; or a court allowing warrantless searches because of the “appearance of criminal activity”?)
As the Court noted, some may find the existence of money in politics “repugnant,” but “[i]f the First Amendment protects flag burning, funeral protests, and Nazi parades…it surely protects political campaign speech.” And if a government wants to regulate such speech — it better have a very good reason.
Bradley A. Smith is the Chairman of the Center for Competitive Politics, and the Copenhaver Chair of Law at West Virginia University. From 2000-2005 he served on the Federal Election Commission.