Inside the First Amendment, by Gene Policinski

There’s little question that “money talks” as long as you can pay a bit more for a better service at a top restaurant or to get a first-class seat while traveling — but there’s an ongoing First Amendment battle over how loudly it should speak in politics.

On April 2, the U.S. Supreme Court decided to eliminate caps on total contributions. The 5-4 decision in McCutcheon v. Federal Election Commission had no effect on a $5,200 maximum in a two-year federal election cycle on contributions to any one candidate.

Then on April 7, the justices declined without comment to review a long-standing ban on direct corporate contributions to candidates.

And all of this takes place against a decision in 2010, in Citizens United v. Federal Election Commission, in which the court said the First Amendment’s protection of freedom of speech keeps the government from limiting independent political expenditures by corporations, labor unions or associations.

To sum up: In elections for Congress and the presidency, you and I face a limit of $2,600 in contributions to any one candidate in that year — but can give to as many candidates as we choose. Corporations, unions and associations can spend as much money as they want on issues or in indirect endorsements of candidates, as long as those actions are not coordinated with specific campaigns or candidates.

From two “spokesmen” for the differing views on McCutcheon and the issue at-large:

“There is no right more basic in our democracy than the right to participate in electing our political leaders,” Chief Justice John Roberts wrote in the McCutcheon opinion. “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects.”

“The Supreme Court in the McCutcheon decision today overturned 40 years of national policy and 38 years of judicial precedent … ,” said Fred Wertheimer, president of the campaign finance watchdog group Democracy 21. “ … the Supreme Court majority continued on its march to destroy the nation’s campaign finance laws, which were enacted to prevent corruption and protect the integrity of our democracy.”

Some suggest immediate and transparent reporting as part of a solution suggesting a contribution or independent support for a candidate can be less subversive if everyone knows about it. But effective transparency also wars against another long-established American tenet — anonymous political speech.

One argument for limits on the money involved in politics does resonate with First Amendment rationale. The nation’s founders provided such strong protection for political speech because they saw such involvement by citizens as fundamental to self-governance. But advocates for limits say the need for massive sums to run a campaign obscures the voices of regular citizens, or even most citizen groups, in favor of wealthy elites and big companies.

The 2013 edition of the reference publication Vital Statistics on Congress reports that in the 2012 election, winning Senate candidates spent an average of $10.3 million, up 62 percent adjusted for inflation from 1986. The report also documents that an average of $1.6 million was spent to win a House seat in 2012, a 344 percent increase since 1986.

One approach to settling the issue would be a constitutional amendment creating an “exception” to the First Amendment to permit the kinds of limits that Roberts and four other justices now see as outside the law. But such a change would be the first ever such action to directly limit First Amendment freedoms. And, it could open the door to other such constitutional mischief on issues from flag desecration to violence in entertainment — and more.

First Amendment authorities Ronald K.L. Collins and David Skover published an e-book about McCutcheon and the history of regulating money in politics, “When Money Speaks,” within 48 hours of the ruling. As they note, “Absent some change in the conservative makeup of the court … the decisional die has been cast. As legend has it, Julius Caesar spoke the words alea jacta est as he crossed the Rubicon. It signaled a ‘point of no return,’ the very point the Roberts Court may have now reached in McCutcheon. It was a fact: money would remain in politics — much more money.”

The proverbial “alert and engaged citizenry” may yet prove the ultimate, most-effective method of monitoring, evaluating and — if one is so inclined — opposing the impact of “big money” in politics. The Web offers audience reach and impact unknown in any earlier era, and “going viral” doesn’t take a big treasury to accomplish.

We may well ultimately find that once again, the best antidote to speech one doesn’t like — even in the form of piles of dollar bills — is more speech, not less.

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.