Once again the Supreme Court has analogized money to speech and once again it has invalidated a law that limits how much private parties may spend on political campaigns. In so doing, the court’s plurality on April 2, in McCutcheon vs. Federal Election Commission, declared, “The government may no more restrict how many causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
The plurality’s analogy of political spending to editorial endorsements is ludicrous. An endorsement does not bear even the faintest whiff of corruption, whereas the role of money in politics assuredly does. It takes colossal nerve, some may call it chutzpah, for judges who may not have ever raised a penny for a political campaign to lecture lawmakers on the subject of money in politics. Instead of showing deference to lawmakers with real-world experience in dealing with the corrosive effects of political fund-raising, the court cuts to ribbons efforts by lawmakers to put even modest controls on a runaway system.
The court concedes that curbs on campaign spending can be justified to prevent corruption, but it defines corruption in the narrowest of terms – donating to a campaign in direct return for a lawmaker’s vote. As was made clear in a lengthy Appendix to Justice Breyer's dissent, “the fact that Members of Congress are intimately involved in the raising of money for the political parties, particularly unlimited nonfederal money donations, creates opportunities for corruption.…[L]arge contributions… provide donors access to federal lawmakers which is a critical ingredient for influencing legislation, and which the Supreme Court has determined constitutes corruption.”
Consider the source is always excellent advice. But increasingly, the identity of the speaker is hidden. Lavish and secret political spending is a toxic combination that puts a for sale sign on too much of the public’s business.
If spending is the same as speech, it follows that, just as more speech is a public good, then the more that is spent on political campaigning, the better. But surely it cannot be healthy for the rich to dominate public discourse. The Supreme Court is on the wrong track in its campaign-spending jurisprudence and needs to correct course.
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