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Yesterday, the Supreme Court occasioned much gnashing of liberal teeth by striking down one more piece of the federal campaign finance laws. At issue was the fact that, while the law limited an individual’s contributions to any candidate to $2,600 per election, it also sets a ceiling of $48,600 in cumulative giving to candidates.
A five-Justice majority — Roberts, Scalia, Kennedy, Thomas, and Alito — struck down the law as a violation of the First Amendment’s guarantee of freedom of speech. In an opinion representing four of the Justices, Chief Justice Roberts said that the government purpose of preventing a quid pro quo between the donor and the candidate justified the limit on an individual donation of $2,600, but that that purpose could not justify the $48,600 cap on giving to multiple candidates, since each one was still only receiving $2,600.
I tend to think that reasoning leaves the court thrashing around in unconstitutional thickets. As Justice Thomas’s separate opinion argued, the Court’s fundamental mistake is finding that a) campaign contributions are speech; but that b) they can be subjected to fewer protections than apply to other forms of speech.
I can understand the argument that money is not speech. I don’t agree with it, but it is at least a principled basis for upholding campaign finance laws. Once the Justices equate the two, however, the Court should give contributions the same protections it gives other forms of speech — and under regular free speech case law, restrictions on the amount of speech would not survive. To do otherwise simply puts the Court in the role of a policymaker. Chief Justice Roberts’s opinion is full of efforts to judge how well the means (contribution limits) advance the end (anti-corruption). This form of balancing inevitably involves policy judgment, which the Court could easily avoid simply by using the regular free speech tests to protect campaign speech.
Thus, while the Court reached the right outcome, it used the wrong reasons. And in so doing, it has doomed itself to many more years of wading through the unconstitutionality of government limits on the very electoral process used to elect that government.