The Supreme Court today delivered a big victory for the First Amendment over campaign finance laws that protect the entrenched political class at the expense of free speech.
In McCutcheon v. Federal Election Commission, the Court struck down a limit on the total amount individuals could contribute to all candidates or political committees in a two-year period. In effect, this means Americans can now legally donate to as many candidates as they like.
The law the Court struck down capped total direct contributions to candidates at $48,600, meaning you could give the maximum donation of $2,600 to just 18 candidates in two years before running up against the limit.
Supporters of such convoluted campaign finance laws act as if the restrictions defend the big against the small in politics. But who benefits more from rules that cap political giving — the incumbents, who have no trouble using their positions to raise money from far and wide, or their lesser known, lesser-funded challengers?
The Supreme Court in recent years has begun striking down these restrictions, which amount to incumbent protection laws, as violations of the First Amendment. After all, if the First Amendment protects any speech, it certainly ought to protect political speech — the kind most in need of protection from the politicians.
The Court’s landmark Citizens United decision in 2010 held that the Constitution guarantees Americans’ free speech rights any time they join together as corporations or private associations, and not just when those corporations have names like The New York Times Company and MSNBC.
Today’s decision continues that progress by affirming that Congress cannot restrict the number of candidates or issues an individual may support. Unfortunately, the Court leaves in place the $2,600 cap on donations to each candidate. Its decision argues that these “base limits” are justified to prevent corruption and the appearance of corruption.
The reality since Citizens United, however, is that although the system is freer than it was before 2010, it “appears” more corrupt to normal Americans than at any time since Watergate. Maintaining the limits on direct contributions to candidates mean that large donors now donate millions to independent “SuperPACs” which advocate on behalf of their preferred issues or candidates. These contributions take place in secret (at least for a time), and the SuperPACs are unaccountable to the candidates they exist to support.
While this situation is better than the blatantly unconstitutional campaign finance laws that came before it, it still makes a farce of our elections and muddles the political process for normal Americans, who can’t know who is really behind the billions of dollars’ worth of ads they see on television.
This secretive, confusing system is already shaping up to make a mess of the 2016 presidential elections, as many of the likely candidates on both sides establish supposedly “independent” SuperPACs run by their former staff and loyal supporters that will spend hundreds of millions on activities the candidates themselves can claim they’re not responsible for.
A far better solution would be the one Justice Clarence Thomas advocates in his concurring opinion to today’s ruling: we should abolish the meaningless distinction between “contributions” to specific candidates and “expenditures” on their behalf (the kind of work SuperPACs do today, such as running attack ads against opponents and distributing mail encouraging supporters to vote).
In practice, this would mean allowing unlimited contributions directly to campaigns, so Americans could hold the candidates themselves responsible for how the money is spent. I’d add the provision that all significant contributions should be reported publicly on the Internet in real-time, which would make for a far more transparent and accountable campaign finance system than we have today.
Our elected officials should not be in the business of limiting our political speech, and the Court’s decision today is an important step in defense of the First Amendment. Now if only the system governing that speech could be simple and clear, as well as unrestrictive.
Newt Gingrich is a former speaker of the U.S. House of Representatives and a host of CNN’s “Crossfire.” He is the author of Breakout: Prison Guards of the Past, Pioneers of the Future, and the Epic Battle that Will Decide America’s Fate. He writes two weekly newsletters available at GingrichProductions.com.
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