Supreme Court Restores Free Speech, in Pieces

Today the Supreme Court ruled to overturn a bit more of the labyrinthine regulations on Americans’ right to free speech. This subject is often accompanied by loud gnashing of teeth, but today’s ruling (McCuthcheon v FEC) is actually a tiny step. In fact, the 5-4 decision pulled its punch, meaning that fully free speech is still illegal in the United States, and what a shame that is.  Let’s remember that it was once the ACLU that was defending the freedom of a small group of Americans who ran a newspaper advertisement against Richard’s Nixon’s bombing of Cambodia. The ACLU (back when it care about free speech) said that so-called campaign finance “reforms” were a euphemism for speech control.

Let’s dispense with the usual misleading claims:

1. Campaign Finance rulings give a partisan advantage. Protesters think this a Republican versus Democrat issue.  It’s not.  The campaign finance laws are fundamentally about politics works mechanically, and both parties get equal treatment regardless of the Supreme Court decision. What’ in tension is whether the two major political parties have monopolistic control over campaign dollars. They both prefer such control, but this comes at the expense of outside voices (Tea Party as well as Green) and at the expense of entrepreneurial candidates. Today’s ruling is a small victory against the big parties.

2. Money is not speech. Okay then, the control money crowd says that they reject the very idea of money as speech. They say money is de facto corrupting.  This latter point is what gets them into constitutional hot water because it is baseless, presuming guilt before innocence. The “appearance of corruption” standard is no better than incriminating a young girl for prostitution because of the clothing she wears. Do we put people in jail for the “appearance of prostitution” or the “appearance of manslaughter?” To say this is a superficial standard is so accurate that it insults common sense. And as you might expect, the net result after decades of superficial control of politics is our modern, very superficial politics.

To continue the illogic of the critics, let’s think about the speech standard as applied to the New York Times.  The campaign finance dinosaurs hold that 100 pages of a newspaper cannot be regulated because that is free speech, but a 1/16th page advertisement in that same paper is subject to superficial standards, intrusive regulation, and outright banishment. So if a rich Saudi wants to publish and distribute a newspaper in the U.S. calling for jihad, he is free to say what he wants, but if an American wants to pay for a small “Vote for Kane” ad in the Washington Post, that is a thought crime! This is madness.

3. The open door will become a floodgate.  The bogeyman of money buying politics has been a staple of media reports about U.S. politics forever. Even now, Senator Harry Reid is using the Senate to attack individual Americans by name who dare to give money to his opponents. Yet the supposed “flood” of corporate money after the 2010 Citizens United case failed to, you know, flood. Where’s the story about Exxon or KFC dollars gushing into candidate or PAC accounts?  It never happened.  Instead, the angst is all about the Koch brothers or George Soros. Individuals. Not corporations. The reality is the individual right has never been subject to control by the FEC, and so there’s nothing new with Koch or Soros giving.

Why don’t for-profit corporations flood in?  Because it never really made business sense for public corporations to buy politicians, and so it, contrary to the hopes and dreams of professional angry anti-speech activists, just didn’t happen even after Citizens United allowed it.  Look up the 2012 donation records: no flood.  Non-profit giving is a different story, but that wasn’t torrential and besides, it’s hard to demonize.

Of course, that doesn’t stop the myth of the corporate flood from being repeated. Consider this line, common everywhere, but frustrating to see on the ultra-mainstream CNN today, in this lead story “SKY’S THE LIMIT” :

The Citizens United ruling helped open the floodgates to massive corporate spending in the 2012 elections.

Ultimately, McCutcheon is not nearly as important as Citizens United was, nor does it resolve the biggest restriction on political freedom, which is the freedom of individual candidates to raise unlimited sums from individual donors.  That restriciton, known as “base limits”, continues to hamstring political entrepreneurs.  Mr. McCutcheon, for example, has a base limit of $2600 maximum that can be given to an individual candidate, as well as an aggregate limit of $123,200 per cycle.

To be sure, incumbents can raise unlimited money because they are expert at direct mailing tens of millions of small donors, working back-scratching PAC networks, and milking their big party patrons. An entrepreneur has limited resources, but may have the backing of a visionary investor. But one or two high-net-worth donors cannot, still, give a big check to candidate X. Why? Hamstringing the entrepreneur remains.

At first, I thought SCOTUS had split the baby by just removing the aggregate limit but leaving the base limit in place. To my relief, Justice Roberts explained in his opinion that

This case does not involve any challenge to the base limits, which we have previously upheld as serving the permissible objective of combatting corruption.

That base limit case will come, but it cannot come soon enough.

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