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The First Amendment’s Protection of Political Speech Extends to Both Donations and Spending

April 3, 2014 in Economics

By Ilya Shapiro

Ilya Shapiro

What kind of bizarro world do we live in where a near majority of Justices of the United States Supreme Court criticizes a First Amendment ruling for being overly concerned with “the individual’s right to engage in political speech”? Where these same jurists instead elevate “the public’s interest in preserving a democratic order in which collective speech matters”? Are these four reactionary horsemen who won’t countenance anti-war protestors, marches against oppressive laws, and other anti-establishment speech-acts? Or perhaps they’re censorious troglodytes inveighing against flag-burning, nude dancing, and other emotion-riling forms of expression?

It turns out no, that this statist-majoritarian cant is the highest explication of so-called “liberal” dissent. We’ve always been at war with Eurasia (at least until those in charge decree that our eternal enemy is Eastasia), etc.

In a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office.”

Rubbish. Just as the government can’t limit the number of hours that Oprah broadcasts or issues that The New York Times publishes — lest they “unduly” influence our political system — it can’t restrict the money that someone wants to spend on campaign donations lest he “skew” the marketplace of ideas. Heck, I’ve been part of enough SCOTUSblog symposia that I’m sure glad there’s no federal limit on how much analysis someone can provide on a website that’s read by all the key opinion-making eyeballs!

Despite the alarming five-to-four split among the Justices, McCutcheon is an easy case if you apply well-settled law (let alone the political-speech-protective first principles upon which this nation was founded): (1) Preventing quid pro quo corruption (or the appearance thereof) is the only valid basis for regulating the finance of political campaigns; (2) restrictions on the total amount an individual may donate to candidates and party committees don’t serve that bribery-prevention interest and thus violate the First Amendment; (3) that’s it; case closed.

The only surprise here is that the ruling wasn’t a unanimous rejection of the government’s incredible claim that, somehow, someone who “maxes out” to nine congressional candidates “corrupts the system” by giving more than $1,800 to any others. (Or maybe it’s those nine candidates who are corrupted by the jealous knowledge that they’re no longer unique snowflakes, that their benefactor has Benjamins for literally anyone who agrees with his political positions?—I could never fully grasp the logic.)

In any event, Chief Justice Roberts provided the nut …read more

Source: OP-EDS

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