Commentary Magazine


Topic: McCutcheon v. Federal Elections Commission

John Paul Stevens’s War on Speech

Four years after the U.S. Supreme Court’s ruling in the Citizens United case Democrats are still trying to turn back the judicial tide that is running against the campaign finance laws they cherish. In that landmark case, the court spiked the government’s efforts to regulate independent expenditures used to promote issues and to express an opinion about candidates. The court’s recent ruling in the McCutcheon case in which it eliminated the cap on aggregate donations has only deepened their frustration. As far as President Obama is concerned these decisions are all about an effort to allow the wealthy to buy American democracy. As it turns out one of the primary boosters of this point of view is the man who wrote the dissent in Citizens United, retired Justice John Paul Stevens.

Stevens is back in the public eye this month primarily to promote a new book he has written in which he proposes six new Constitutional Amendments which would essentially abrogate much of the Bill of Rights by granting the government broad powers to restrict both free speech (First Amendment) and gun rights (Second Amendment). As such, he was recruited to come to Capitol Hill yesterday to lend support for a futile Democratic effort to create an amendment to overturn the impact of Citizens United. As Seth noted earlier, this is a futile exercise as the chances of any such Amendment being passed are less than zero. But it was nonetheless interesting in that it allowed Stevens yet another platform from which he could promote his idea that “money is not speech.”

These comments were widely applauded on the left, but some of his comments as well as others made during the course of his book tour illustrate the slippery slope that Stevens and his Democratic cheerleaders wish to take the country down. Far from proving his case that what the country needs are more restrictions on the ability of citizens to make their voices heard on issues, the upshot of this debate makes it all the more clear that the real focus here is on silencing views they find inconvenient.

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Four years after the U.S. Supreme Court’s ruling in the Citizens United case Democrats are still trying to turn back the judicial tide that is running against the campaign finance laws they cherish. In that landmark case, the court spiked the government’s efforts to regulate independent expenditures used to promote issues and to express an opinion about candidates. The court’s recent ruling in the McCutcheon case in which it eliminated the cap on aggregate donations has only deepened their frustration. As far as President Obama is concerned these decisions are all about an effort to allow the wealthy to buy American democracy. As it turns out one of the primary boosters of this point of view is the man who wrote the dissent in Citizens United, retired Justice John Paul Stevens.

Stevens is back in the public eye this month primarily to promote a new book he has written in which he proposes six new Constitutional Amendments which would essentially abrogate much of the Bill of Rights by granting the government broad powers to restrict both free speech (First Amendment) and gun rights (Second Amendment). As such, he was recruited to come to Capitol Hill yesterday to lend support for a futile Democratic effort to create an amendment to overturn the impact of Citizens United. As Seth noted earlier, this is a futile exercise as the chances of any such Amendment being passed are less than zero. But it was nonetheless interesting in that it allowed Stevens yet another platform from which he could promote his idea that “money is not speech.”

These comments were widely applauded on the left, but some of his comments as well as others made during the course of his book tour illustrate the slippery slope that Stevens and his Democratic cheerleaders wish to take the country down. Far from proving his case that what the country needs are more restrictions on the ability of citizens to make their voices heard on issues, the upshot of this debate makes it all the more clear that the real focus here is on silencing views they find inconvenient.

Stevens backed up his assertion yesterday that money can’t be equated with speech by claiming that political speech is just one of the things that campaign contributions can be. The example of a non-speech expenditure that popped into his mind was the Watergate break-in that was, he pointed out, financed from contributions to President Nixon’s reelection campaign. Citing Watergate in the context of a campaign finance debate is, in one sense, appropriate, because the entire confusing welter of laws produced by the federal government in a quixotic attempt to keep money out of politics started with the fallout from that incident. But outrageous and unusual examples of criminal behavior like Watergate don’t tell us much about the way politics is practiced in the United States.

After all, liberals aren’t worried that Republicans are raising money to finance squads of comically incompetent unemployed ex-spooks to spy on their campaign headquarters, as Nixon did. Their problem with the effort to overturn these laws is that doing so opens up the public square to far more political speech. Stevens and the Democrats think all this speech is creating an unfair playing field in politics and they want to level it off by making it harder for candidates and independent groups to raise the kind of money needed to get their messages out. According to Stevens, Citizens United’s protection of independent expenditures has created vast amounts of “dark money” that cannot be directly traced back to donors, thus raising the possibility that sinister forces will manipulate and purchase the elections of favored candidates. But as we learned with the recent controversy that drove the CEO of Mozilla from his job because of a contribution to California’s Prop 8 campaign, stripping anonymity from donors is no different than abolishing the secret ballot.

The last 40 years have shown that the main effect of campaign finance laws if not their prime motive is to protect incumbents and to silence outlier movements that seek to protest against the political establishment of both major parties. The campaign finance laws also maximize the impact of the mainstream media that can slant the news or editorialize as much as they like in order to promote or trash candidates and causes.

But while money is not needed to be able to express one’s point of view at a Maine town hall meeting—the example of pure democracy repeatedly cited by Senator Angus King who chaired the committee hearing on the law—it is absolutely necessary if one is to mount a challenge to an incumbent member of the House or the Senate or to get one’s ideas about any issue before the public.

Money has and will always be the mother’s milk of politics and no law will ever be able to change that. But the point here is that it is the primary way in our mass media culture in which to reach other Americans. As such, it has become, more than it ever was before, absolutely essential to the expression of political speech. And if there was anything that the Founders of our republic intended to insulate from government interference it was political speech.

As a feature in the New York Times about Stevens’s book pointed out, the former justice isn’t just interested in restricting campaign expenditures but is willing to listen to arguments about banning or at least placing restrictions on the publication of books about politics. That sentiment alone should raise alarms to Americans about the intent of these laws no matter whether they are liberals or conservatives.

When placed in that context, there’s no question that Justice Stevens’s own book as well as the efforts of Democrats to pass amendments trashing the Bill of Rights isn’t so much about playing fair as it is in waging a war on speech.

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Anger at SCOTUS? Liberals v. Constitution

The rage directed at the U.S. Supreme Court in the last 24 hours is instructive. From the White House to the editorial pages of most of the mainstream media, Democrats and liberals have depicted the court’s ruling in McCutcheon v. Federal Election Commission as a lamentable victory for the wealthy few that contribute to Republican and conservative causes at the expense of democracy. To listen to them, the court’s decision to remove the cap on how much money individuals could give to political parties, PACs, and candidates will create a plutocracy. To them, it seems obvious that the only way to make the system fair is to make it hard for citizens, whether as individuals or as a part of group, to make their voices heard in the public square.

Yet when faced with the ruling majority’s opinion that much of what they seek to achieve with these laws directly contradicts the letter and the spirit of the Constitution, liberals are flummoxed. They say that the justices are either naïve or seeking to promote some nefarious agenda by asking those who defend much of the body of campaign finance legislation to take the basic protections afforded political speech in the Constitution into account. Though the left thinks it is self-evident that campaign contributions are an evil that must be severely restricted if not banned altogether, their problem is that they keep forgetting about the First Amendment and that language about free speech. While we are being told the debate about campaign-finance laws is about the rich versus the “people,” their argument with Chief Justice John Roberts and the four other conservatives who voted with him on McCutcheon is really with the Constitution itself.

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The rage directed at the U.S. Supreme Court in the last 24 hours is instructive. From the White House to the editorial pages of most of the mainstream media, Democrats and liberals have depicted the court’s ruling in McCutcheon v. Federal Election Commission as a lamentable victory for the wealthy few that contribute to Republican and conservative causes at the expense of democracy. To listen to them, the court’s decision to remove the cap on how much money individuals could give to political parties, PACs, and candidates will create a plutocracy. To them, it seems obvious that the only way to make the system fair is to make it hard for citizens, whether as individuals or as a part of group, to make their voices heard in the public square.

Yet when faced with the ruling majority’s opinion that much of what they seek to achieve with these laws directly contradicts the letter and the spirit of the Constitution, liberals are flummoxed. They say that the justices are either naïve or seeking to promote some nefarious agenda by asking those who defend much of the body of campaign finance legislation to take the basic protections afforded political speech in the Constitution into account. Though the left thinks it is self-evident that campaign contributions are an evil that must be severely restricted if not banned altogether, their problem is that they keep forgetting about the First Amendment and that language about free speech. While we are being told the debate about campaign-finance laws is about the rich versus the “people,” their argument with Chief Justice John Roberts and the four other conservatives who voted with him on McCutcheon is really with the Constitution itself.

Of course, it’s not that liberals don’t believe in the Constitution at all. It’s just that they think free speech protections are only somehow relevant to a few specific categories of activity. Liberal jurisprudence has applied First Amendment protections to lots of things that used to be illegal, like flag burning and pornography. They’ve also applied it to activities such as allowing a Nazi march in a heavily Jewish town.

Thankfully, there is also a consensus that the First Amendment clearly applies, as its text indicates, to the right of the press to operate without interference from the government. But, as any media veteran knows, freedom of the press in this country has always meant the right of those who own the press to promulgate whatever views they like. The only way for most of the rest of us to gain some of that same freedom was to pool our money to buy time or space in the media to put forward a different point of view. Though liberal ideologues like Jeffrey Toobin mock the notion that giving money to a campaign is, as Roberts says, “participating in a political debate,” that is exactly what it is. Thus, as Roberts also pointed out in his opinion, the main impact of laws that drastically restrict the ability of individuals to spend money on politics was to disadvantage one group in favor of others.

For liberals, democracy has somehow become dependent on the enforcement of a complex labyrinth of laws first enacted in the wake of the Watergate scandal that have created a bewildering legal landscape for all those who wish to take part in our electoral system. Each new piece of legislation intended to further the principle of good government has created new inequities and anomalies that have further distorted this system to the point where no one but a lawyer who specializes in the field can truly know whether a candidate or campaign has violated them–and even then there is no guarantee that an arbitrary federal prosecution may not ensue. The campaign-finance movement is aimed not so much at the threat from corruption as it is to grant government enormous power over the electoral process. But if the framers of the First Amendment meant anything when they forbade “abridging the freedom of speech,” surely it was to prevent the government from trying to limit political expression.

In his dissent, Justice Stephen Breyer complained that the majority was “eviscerating campaign finance laws.” Though the ruling in McCutcheon was narrow and left standing laws that limit contributions to individual candidates, it may well be that the court will soon take up other related issues as well. But if it does, it will not be because they want to steal from the poor and give to the rich or turn the United States into an oligarchy. It will be because the liberal drive to restrict political speech contravenes basic constitutional principles.

For too long, the courts have let Congress and the growing federal electoral bureaucracy run roughshod over the First Amendment. But contrary to Breyer, “democratic legitimacy” does not rest in allowing the government (which is to say incumbents who always stand to benefit from restrictions that hurt their challengers more than themselves) to distort the electoral process. Democracy means letting everyone speak up, whether we like them or not. It is that prospect that drives liberals crazy. If the Roberts court is bent on preventing them from having their way on campaign finance, the fault lies with not with conservatism or deference to wealth but with the Constitution.

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Court Strikes a Blow for Free Speech and Political Sanity

Liberals didn’t like the U.S. Supreme Court’s 2010 Citizens United ruling that struck down federal limits on political speech from independent groups because they saw it as a the first step toward dismantling the campaign finance regulatory system that aimed to suppress political speech. They will be just as, if not more, unhappy with the court’s 5-4 ruling today in McCutcheon v. Federal Election Commission that rightly held that federal caps on the amount of money individuals could give to candidates, parties, and PACs are unconstitutional.

But while we can expect to hear a chorus of condemnation of the court from the White House, liberal Democrats, and mainstream media pundits who will see this as opening the floodgates to corruption, the warnings that these rulings herald the end of democracy are false. What the court has done today is to reaffirm core constitutional principles that protect the rights of every American to participate in the political system. But just as importantly, by taking the next step toward dismantling a dysfunctional and deeply unfair regulatory system, the court has opened the way toward a saner manner of conducting elections. While all past efforts at “reform” of contributions had driven donors away from the candidates and political parties, the majority opinion in McCutcheon will begin the process of returning them to a central role in campaign finance. That will create a system that is more accountable and freer of overweening governmental regulation of speech. Instead of condemning this sweeping ruling, liberals should be joining conservatives in cheering a step back toward a saner manner of conducting elections.

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Liberals didn’t like the U.S. Supreme Court’s 2010 Citizens United ruling that struck down federal limits on political speech from independent groups because they saw it as a the first step toward dismantling the campaign finance regulatory system that aimed to suppress political speech. They will be just as, if not more, unhappy with the court’s 5-4 ruling today in McCutcheon v. Federal Election Commission that rightly held that federal caps on the amount of money individuals could give to candidates, parties, and PACs are unconstitutional.

But while we can expect to hear a chorus of condemnation of the court from the White House, liberal Democrats, and mainstream media pundits who will see this as opening the floodgates to corruption, the warnings that these rulings herald the end of democracy are false. What the court has done today is to reaffirm core constitutional principles that protect the rights of every American to participate in the political system. But just as importantly, by taking the next step toward dismantling a dysfunctional and deeply unfair regulatory system, the court has opened the way toward a saner manner of conducting elections. While all past efforts at “reform” of contributions had driven donors away from the candidates and political parties, the majority opinion in McCutcheon will begin the process of returning them to a central role in campaign finance. That will create a system that is more accountable and freer of overweening governmental regulation of speech. Instead of condemning this sweeping ruling, liberals should be joining conservatives in cheering a step back toward a saner manner of conducting elections.

For forty years liberals built a mountain of federal laws and regulations that sought to restrict the ability of individuals and groups to make their voices heard on political issues. The campaign finance reform movement was portrayed in the mainstream media as a high-minded force for good government. But the effort to rid politics of the scourge of money was as futile as it was counterproductive. Money is the mother’s milk of politics and the legal labyrinth created by the initial post-Watergate effort and its successors did nothing to curb corruption but it did make the system more and more unaccountable as the laws made it harder to give to individual candidates or political parties. The cumbersome apparatus of campaign finance law made it hard to comply with the law without legal specialists. But most damaging of all was the fact that the thrust of this body of legislation was aimed at suppressing political speech—the one type of activity that the Constitution most sought to protect from the government.

The court held today in McCutcheon that the right to contribute to campaigns is not absolute (Justice Clarence Thomas dissented from the other members of 5-justice majority on this point). But, as Chief Justice John Roberts pointed out today in his ruling, the government  “may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”

The sordid truth at the heart of the campaign finance reform movement is that it has always been more about suppressing the free speech rights of individuals then about cleaning up government. There is no evidence the cap rules prevented corruption. But what they do accomplish is to make it harder to take down incumbents or to challenge the dominant voice of a mainstream media whose First Amendment rights to say what they like about candidates have rightly never been questioned.

Campaign finance laws never succeeded in driving money out of politics. But they have forced donors to resort to more indirect methods of financing candidates and causes they like, making the system less accountable. By removing such limits on donations to candidates and parties, the court will increase the influence of these institutions and allow more money to be put in the hands of those who are actually running the campaigns rather than outside groups. This will make elections more transparent and be good for democracy.

As they did with Citizens United, liberals will lament this ruling because it chips away further at the notion that government has a right to limit political speech. But, as Roberts said, “there is no right more basic in our democracy than the right to participate in electing our leaders.” Political donations are no different from any other kind of protected political speech. Allowing more speech, whether from conservatives or liberals, corporations or unions, won’t harm democracy; it enhances it. By ending the federal caps, the court has struck a blow for more freedom, not corruption.

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Free Speech Can’t Be Redistributed

In the midst of a lengthy press conference rant earlier this week about his refusal to negotiate with Republicans about the government shutdown or the debt ceiling, President Obama took time out to ride another one of his favorite hobby horses: anger at the Supreme Court’s evisceration of restrictive campaign finance laws. The president sounded the usual liberal cries of alarm about the possibility that citizens or groups won’t be stopped from articulating their views in reaction to the Supreme Court’s deliberations on Tuesday. The high court’s 2010 Citizens United decision took down the McCain-Feingold regulations that effectively restricted political speech rights by independent groups and citizens. But the court’s ruling on McCutcheon v. Federal Election Commission could similarly strike down efforts to hamper the ability of individuals to contribute directly to political candidates and party committees.

According to the president and his cheering section at the New York Times editorial page, the likelihood that the conservative majority will rule in favor of McCutcheon’s plea to eliminate specific limits on contributions to candidates and parties is legalized corruption. They believe political speech should be severely limited because free spending will result in the rich or powerful “buying” elections. But at the heart of the campaign finance law impulse is not a defense of democracy but a desire to squelch it. Unrestricted free speech is not inherently Republican or Democratic, conservative or liberal, but what supporters of the current laws want is to make it harder for independent voices to be heard. The campaign finance laws are set up to make it easier on incumbents of all parties and to reinforce the power of establishment media outlets like the Times, which can use its constitutionally-protected bully pulpit to promote ideas and candidates it prefers as much as they like. Just as important, the convoluted web of campaign laws at the heart of the McCutcheon case constitutes a barrier not only to speech but further actual corruption by taking elections out of the hands of the only political players that are truly accountable: candidates and parties.

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In the midst of a lengthy press conference rant earlier this week about his refusal to negotiate with Republicans about the government shutdown or the debt ceiling, President Obama took time out to ride another one of his favorite hobby horses: anger at the Supreme Court’s evisceration of restrictive campaign finance laws. The president sounded the usual liberal cries of alarm about the possibility that citizens or groups won’t be stopped from articulating their views in reaction to the Supreme Court’s deliberations on Tuesday. The high court’s 2010 Citizens United decision took down the McCain-Feingold regulations that effectively restricted political speech rights by independent groups and citizens. But the court’s ruling on McCutcheon v. Federal Election Commission could similarly strike down efforts to hamper the ability of individuals to contribute directly to political candidates and party committees.

According to the president and his cheering section at the New York Times editorial page, the likelihood that the conservative majority will rule in favor of McCutcheon’s plea to eliminate specific limits on contributions to candidates and parties is legalized corruption. They believe political speech should be severely limited because free spending will result in the rich or powerful “buying” elections. But at the heart of the campaign finance law impulse is not a defense of democracy but a desire to squelch it. Unrestricted free speech is not inherently Republican or Democratic, conservative or liberal, but what supporters of the current laws want is to make it harder for independent voices to be heard. The campaign finance laws are set up to make it easier on incumbents of all parties and to reinforce the power of establishment media outlets like the Times, which can use its constitutionally-protected bully pulpit to promote ideas and candidates it prefers as much as they like. Just as important, the convoluted web of campaign laws at the heart of the McCutcheon case constitutes a barrier not only to speech but further actual corruption by taking elections out of the hands of the only political players that are truly accountable: candidates and parties.

As Politico noted yesterday, the main beneficiaries of a victory for McCutcheon would be both the Republican and Democratic National Committees. Since the law specifically restricts the ability of donors to contribute to these national political institutions, money instead flows to unaccountable independents like those protected by Citizens United. There is nothing wrong with independent groups having their say, and the McCain-Feingold effort to stop them was an offense to democracy and, as the court rightly noted, an unconstitutional infringement of free speech. But if those interested in politics are able to give more to the national party committees and the candidates themselves, the result will be that the players in elections can have a greater say in campaigns and therefore be more accountable for what is said on their behalf.

Stopping wealthy individuals from giving more to parties and candidates won’t keep money out of politics. Nothing will do that, especially when you consider that the real corruption in government comes from the ability of politicians to use earmarks and other legislative tricks to dole out goodies to their allies or favored constituencies. The smart way to attack that problem is not by starving non-incumbents who have more problems raising funds than incumbents or making it difficult for others to donate to multiple candidates. Limiting the ability of Congress to play that game with earmarks and other legislative tricks will do more to keep the system honest than 40 years of campaign finance laws have done.

But at the heart of this case is the fundamental drive on the part of the political left to treat political speech as a commodity that can be regulated like interstate commerce. They don’t trust the ability of the people to sort out the varied political messages with which they are bombarded. Instead, they want to dole out political speech in small packages. Liberal Justice Ruth Bader Ginsburg said from the bench on Tuesday that limits on contributions give the “little people” more say. But what she really wants to do is limit everyone’s speech. The Constitution protects the right of all citizens, rich or poor, to speech. The law cannot favor some at the expense of others. Income may be redistributed via the tax laws if the Congress wills it, but free speech cannot be handled in the same manner. That is especially true when one considers that a citizen who spends money on an independent committee has no such restrictions but that one who gives to a candidate or a party is severely limited. Elections are influenced by campaign expenditures just as they are by many factors, but the notion that an office can be bought is given the lie by the failure of many well-funded or wealthy politicians.

The campaign finance laws have created a powerful bureaucracy and a set of laws that force politicians and even private citizens who wish to speak up to hire lawyers if they want to avoid being prosecuted for minute violations of arcane regulations. This does nothing to enhance democracy. The court should follow up on the blow it struck for free speech in Citizens United in McCutcheon. If it does, the only real losers will be those liberals who fear an unrestricted debate of the issues.

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