Political Speech Triumphs in McCutcheon Decision

Chalk up one more win for the First Amendment. In McCutcheon v. Federal Election Commission, decided on Wednesday, the U.S. Supreme Court ruled unconstitutional federal limits on the aggregate amount of money individuals can contribute during a two-year election cycle.

As such, the court—albeit by a divided 5-to-4 majority—took one more step toward getting Congress out of the business of limiting spending on its own elections.

The court remains deeply divided over the regulation of campaign spending and the First Amendment. The Democratic appointees view campaign finance laws as "good government" measures limiting corruption, while the Republican appointees view political speech—which necessarily includes spending money on politics—as perhaps the most central value the First Amendment is designed to protect.

In general, I think the majority has the better argument. No, money is not speech. But no sitting Supreme Court justice rests on that principle, and for good reason. As leading First Amendment scholar Eugene Volokh and others have observed, the right to counsel wouldn't mean much if Congress could prevent you from spending your own money on your legal defense, and no supporter of a constitutional right to abortion thinks it would be fine and dandy for Congress to prevent people from paying for an abortion procedure.

To be sure, government corruption is definitely something to worry about—and it always will be. In recent weeks, Charlotte, N.C., mayor Patrick Cannon and California state Senator Leland Yee were separately arrested after federal investigators caught each of them taking bribes in exchange for political favors.

But free elections mean little without free speech—which means money to communicate to the public—and politicians are experts at writing rules that function to entrench themselves. In the post-Watergate campaign law stricken down in part by the Supreme Court in its 1976 campaign-finance decision Buckley v. Valeo, Congress set maximum "campaign expenditure limits" just below the lowest level spent by a successful challenger in the prior election.

The real-world effects of McCutcheon's majority holding will be rather limited. On the margins, parties will be able to raise more money directly from well-heeled individuals. Such individuals will get greater "access" to the politicians they support.

But so do newspaper editorialists, interest groups like the NRA and NAACP, celebrities like Oprah and Jay-Z, those who "bundle" contributors by opening up their Rolodexes, and those who spend money on politics independently as permitted under Citizens United. It's hard to see how the ruling will generate an appreciably greater potential for public corruption.

More broadly, the main reason politicians have to spend so much time on fundraising today is the campaign finance laws themselves. Under existing law, candidates cannot raise funds from a small, wealthy group of donors (unless, like Steve Forbes or Michael Bloomberg, they're wealthy enough to finance their own campaigns)—so they have to spend all their time going hat in hand. In a future case, the court should consider Justice Clarence Thomas's position in McCutcheon, which would reverse Buckley's holding permitting individual-contribution limits. For now, this small step for the First Amendment will do.

This piece originally appeared in National Law Journal

This piece originally appeared in National Law Journal