Accuracy • Independence • Integrity

October 23, 2016   |   Ithaca, NY


Guest Commentary: Court ruling drowns out free political speech

Last week, in the case McCutcheon v. FEC, the U.S. Supreme Court decided 5–4 to strike down limits on the total amount of money individuals can donate to candidates and political committees.

While startling, the majority’s ruling is not quite surprising considering the court’s precedent of interpreting money as speech, first introduced by its 1976 decision in Buckley v. Valeo. By the court’s logic, campaign finance laws intended to limit the influence of wealthy individuals and special interests on elections, and subsequently public policy, are unconstitutional restrictions of Americans’ freedom of speech.

In 2010, the Supreme Court notoriously ruled in the Citizens United v. FEC case that corporations and unions could spend unlimited amounts of money on political elections. In the 2012 elections, independent political spending topped $1 billion for the first time ever, seven times more than in the 2008 elections.

Wealthy interests were able to bankroll and entrench politicians in their positions. It’s no coincidence that we’ve recently experienced some of the most polarized and unproductive congressional classes on record, with lower public approval ratings than traffic jams and root canals.

In his McCutcheon dissent, Justice Stephen Breyer forewarned, “If Citizens United opened a door, today’s decision, we fear, will open a floodgate.”

Already, just .0001 percent of the country accounted for more than 25 percent of the total $6 billion identifiable political contributions in 2012. According to the Sunlight Foundation, 85 percent of those donors gave more than 90 percent of their money to one party or another, which is to say their contributions are highly polarized and encourages more congressional gridlock. Not a single House or Senate member was elected without receiving contributions from that group of mega-donors and “84 percent of those elected in 2012 took more money from these 1 percent of the 1 percent donors than they did from all of their small donors (individuals who gave $200 or less) combined.”

Also, in 2012, only 646 individuals reached the maximum overall donation limit of $117,000 abolished by the McCutcheon ruling. After last week’s ruling, Senate Minority Leader Mitch McConnell argued the decision would “expand the playing field” and “enable more citizens to get involved.” In reality, however, it now just allows those 646 individuals to impose their influence further and drown out everyone else by spending unbridled amounts on elections.

More than this individual ruling, what is most problematic is the underlying money as speech doctrine established in Buckley v. Valeo and reinforced by subsequent decisions. Interpreting political spending as free speech betrays the notions of universality and equality the First Amendment was created to protect, by creating unequal tiers of political rights.

The First Amendment was intended to apply to all citizens equally, so that everyone had identical political rights. But in a capitalist society, individuals naturally have differing levels of wealth, meaning that if an individual has more money, they have freer speech. And the McCutcheon ruling allows individuals to cement that upper hand to an unlimited degree.

Of course political spending and campaign contributions are necessary for a healthy democracy. They encourage grassroots participation and give people a chance to support the people and policies that will best serve them.

But allowing unlimited political spending by the wealthiest Americans drowns out the political “speech” of others —  the exact suppressive effect on political participation and expression these misguided decisions supposedly aim to ensure against.

Even if we concede the money as speech interpretation, decades on decades of constitutional law have allowed some regulation of speech given a “compelling government interest.” I can think of few more compelling interests than preserving the integrity and legitimacy of our democracy. There are plenty of other countries that enjoy just as, if not more, expansive freedom of expression rights, yet find that preventing the distortive and corrosive effects of money on politics a compelling enough interest to regulate it, if they even entertain the money as speech argument. Norway, for example — ranked third in the Press Freedom Index, whereas the United States is 46th — publicly funds all elections and bans outside political advertising. Similarly, other European nations also believe that democracy is best served by limiting the influence of money on politics.

Last week’s ruling is another erroneous step helping a tiny proportion of the population increase its already augmented control over who benefits from our public policy. It’s nothing short of a democratic travesty.