Many tout campaign finance reform as the last great hope in the fight to fix Washington. As such, the impact of money in politics has long been debated and resisted. The Bipartisan Campaign Reform Act of 2002, commonly referred to as the McCain-Feingold Act, stipulates two major limits on campaign spending. The first of these is a base limit, which caps campaign contributions to any given candidate or organization at $2,600 per election cycle. The second major stipulation limits the amount a single donor may contribute in an election cycle to $48,600 for all federal candidates and $74,600 to political action committees (these figures are tied to the Consumer Price Index).
On April 2, 2014, the Supreme Court ruled 5-4 in McCutcheon v. FEC that the second stipulation placing aggregate caps on individual campaign contributions was unconstitutional under the First Amendment. While supporters hailed the decision as a major win for free speech, others warned that the wealthy now had more power than ever before to corrupt our democracy.
Justice Breyer captured the spirit of the opposition in his dissenting opinion: “[T]he anti-corruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions.”
Although fighting government waste and corruption is definitely important, there are a few problems with this line of thinking. First, it supports the notion (all too pervasive today) that if a goal is deemed important or utilitarian enough, we are justified in overriding Constitutional rights in its name. One may believe that preventing corruption is worth placing restrictions on campaign expenditures, but this value judgment alone hardly makes doing so legal or constitutional.
To be fair, Justice Breyer also argued that the legal precedent set by cases such as Buckley v. Valeo justified the restrictions overturned by McCutcheon. But as the Supreme Court can and does overrule itself to set new precedents, the majority opinion can hardly be deemed out-of-form for doing so in this instance. Regardless of one’s opinion on the ruling, the McCutcheon decision has clearly shown that advocates of campaign finance reform will need to pass a constitutional amendment to limit campaign contributions.
The real issue at hand is whether money is speech. But how could we possibly classify it otherwise?
Few would argue that a pamphlet, poster, or rally is not a form of free speech. But as the economist Murray Rothbard taught, all freedoms of expression – religion, speech, press, and assembly – are largely, if not entirely, contingent on property rights. After all, how can we profess to support a man’s right to free speech while simultaneously restricting the resources he allocates towards traveling, renting out venues, publishing books, securing airtime, making posters, creating videos and financing his staff? The freedoms of expression don’t just protect the grumblings of private individuals. They demand that people have the opportunity to propagate actively and persuade peacefully. As Justice Kennedy wrote in the majority opinion in Citizens United v. FEC, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Yes, Washington is far from transparent and corporatism is alive and well in the Capitol. Money talks – if not directly via bribes and “quid pro quo” agreements, then certainly through the aid interested parties can promise politicians during election season. However, if we focus on placing arbitrary caps on the amount of money a person or group of people are allowed to expend advancing their ideas and principles, not only do we limit the First Amendment, we misdiagnose the problem. Money itself does not imperil our freedom – the offensively large and undue influence the government has in our individual lives and economy does.
After all, why do unions, corporations and the affluent – on both sides of the aisle – find it so profitable to spend billions of dollars on super PACs and lobbyists?
Sadly, it is because in giving government the power to license and regulate to protect our citizens and push for social equality, we have also given special interests strong incentives to shape public policy. In placing restrictions (however well-intentioned) on voluntary associations and exchanges, we have given the most powerful and affluent in our society the ability to use the legally sanctioned coercion of the state to stamp out their competitors and prey upon the weak. We have made it possible for interest groups to write subsidies, loopholes and special deals into law, often into the very legislation meant to restrain their power.
The motivations of those who wish to get the money out of politics are admirable. But getting the power out of politics is much more so, and more effective besides. If we want a free society, we need to restrict the power of the state, not the power of private citizens and organizations.
Contact Josh Jones at [email protected]ord.edu.