If the First Amendment means anything, it’s to protect speech, and that includes political speech. Over the years, political speech has been marginalized by fringe causes like protecting Nazi parades, pornography, Klan rallies and T-shirts emblazoned with obscenities. It was a reminder that the First Amendment does not guarantee nice, fashionable, polite or necessarily responsible speech. It guarantees free speech.
The court on Wednesday took a big step toward refocusing needed attention on political speech by striking down arbitrary limits on political contributions. With this decision, and the 2010 Citizens United ruling, political speech is no longer the redheaded stepchild of the First Amendment.
The fundamental feature of American democracy is the guarantee that everyone shares in choosing our leaders. For some, that means walking precincts and going door-to-door to hand out pamphlets and handbills. It means stuffing envelopes and making telephone calls. Others, who may not have the luxury of time away from family or work commitments, express support for a candidate by writing a check to pay for newspaper advertisements and television commercials.
Shaun McCutcheon was a check writer who learned that federal law limits the number of candidates he could support. Such a limitation violates common sense. The law allows Mr. McCutcheon, a successful businessman in Alabama, to contribute a maximum of $5,200 each to nine different candidates in an election cycle. Writing a check to a 10th candidate, however, would have made him a criminal, in violation of the $48,600 aggregate limit on contributions. Mr. McCutcheon took the Federal Election Commission to court, offering the Supreme Court another opportunity to say, loud and clear, that there’s no constitutional basis for such a limit.
Writing for the 5 to 4 majority, Chief Justice John Roberts recognizes that the First Amendment safeguards an individual’s right to participate in the public debate whether by giving a dollar or a thousand dollars. “The limits,” wrote Chief Justice Roberts, “deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance — clear First Amendment harms that the dissent never acknowledges.”
Justice Stephen Breyer wrote the dissent on behalf of the court’s liberal wing, scolding the majority for focusing on the “individual’s right to engage in political speech,” rather than the “public’s interest in collective speech.” Such language sends chills down the spine of civil libertarians. The Constitution protects the rights of individuals, not the rights of a collective.
Were Justice Breyer’s views consistent, he would have to vote to overturn five decades of First Amendment precedent, to enable judges to decide which causes and forms of speech are worthy of protection, and which are not. But such interpretation tortures the Constitution. “The First Amendment does not contemplate such ‘ad hoc balancing of relative social costs and benefits,’ ” Justice Roberts wrote.
Democrats like limits on political speech because it gives them a competitive advantage. The party can rely on friends in the mainstream media and campaign contributions from compelled union dues. Hobbling grass-roots fundraising is clearly meant to hurt Republicans.
Courts must never interpret the Constitution to achieve a shortsighted partisan goal. It’s a relief that five members of the court once more stopped those who would use the power of the government to limit participation in politics, but four members seem to believe that the federal role is to decide who should be allowed to participate. That’s four too many for comfort.
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