Saturday, April 5, 2014

A Few Thoughts on the SCOTUS Campaign Finance Ruling

The United States Supreme Court recently struck down cumulative limits on direct contributions to political candidates, but left in place individual candidate contributions and donor disclosure requirements. 

In its editorial on the decision, the NJ Jersey Star-Ledger called the ruling a blow to democracy. Here are some excerpts:

    These justices, the majority, decided that a First Amendment right was at stake here; that the Founding Fathers had intended the superrich (sic) to be able to donate $3.6 million every two years, instead of the previous cap of $123,200. So they ruled to kill the limits meant to keep fabulously wealthy people from overpowering our democracy.
    What this means is that rich donors will have virtually unlimited power to pick political contenders; that a few people will hold a giant megaphone in our elections, drowning out the voices of ordinary citizens. It’s true that to a large degree, this already happens. But this week’s decision could only make it worse.
    The one consolation is disclosure. These unlimited contributions cannot be anonymous, unlike all the money mega-donors such as the Koch brothers spend on attack ads through shadowy private groups.

I left these comments:

There is a clear distinction between direct contributions to candidates and independent spending for private advocacy. The term "shadowy private groups" illustrates clearly the state supremacist leanings of the anti-spending—meaning anti-free speech—crusaders. In a free constitutional republic, it is the government, its officials, and its workings that should be transparent. Private citizens have a fundamental right to their privacy. Calling private groups "shadowy" represents an inversion of a basic principle of a free society that any dictator would approve of.

The First Amendment is unequivocal—"Congress shall make no law . . . abridging the freedom of speech, or of the press." Spending one's own resources is clearly integral to this freedom. Restricting the use of private resources means restricting free speech. Clearly, the Founders didn't intend to insulate the political class from the voices of the governed, by restricting the means by which those voices can be exercised. "Giant megaphones" are good for the democratic process in a free republic, and the more the better. Far from "drowning out the voices of ordinary citizens," they bring issues, opinions, and information to the wider public, enhancing the public discourse and debate. They give voice to people who agree with the message, and stimulate opposing views among those who disagree. The identity of the donor is irrelevant, except to people whose only form of "debate" is ad hominem.

There may be a case for restricting direct campaign contributions and requiring candidate donor disclosure (I'm still undecided on that). But restricting independent private spending violates rights and is very dangerous to a free republic. We need not fear big spenders "overpowering our democracy." We should fear a government overpowering our liberties. Insulating the political class from the most effective private voices would only entrench the political incumbents and increase their power.

I view the ruling as a narrow one. The fundamental premise that the government may limit direct political contributions into candidates' campaigns and that donors (or the candidates) must disclose their identities was not overturned. The court merely eliminated the restriction on total contributions.

In other words, as the Washington Post reports, the prior limit of $2600 per candidate per election cycle remains in effect. The court merely said that individuals "should be able to contribute that amount to as many candidates as he chooses." The prior aggregate limits of $48,000 for candidates and $74,000 for political parties and committees prevented individuals from doing so.

I see nothing unreasonable about this ruling. Nor do I view it as anywhere near the equivalent of the major victory for free speech that the Citizens United decision was.

Related Reading:

Making Private Donations Anonymously is a Right

Money is Not Speech, but a Means to Speech

Why Forcibly Limiting Campaign Spending is Censorship—And Why it Matters—Ari Armstrong @ The Objective Standard

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