The 1st Amendment Protects Nude Dancing, So Why Not Political Speech?

On Tuesday, October 8, the second day of the Supreme Court's new term, the Justices will hear a case about free speech and political donations. In McCutcheon v. Federal Election Commission the law at stake is the aggregate limit on individual campaign donations. Under current campaign finance law, individuals can contribute up to $5,200 to a single candidate (half for a primary and half for the general election). This limit is not directly in dispute. Instead, at issue is a limit on the total of all contributions from a single individual to candidates and to political committees.

As the law stands at the moment, you are only allowed to donate a total of $48,600 to individual candidates within a two-year election cycle and an additional amount of $74,600 to political committees. The case at hand was brought by a donor claiming that this ceiling on aggregate giving illegally limits his First Amendment right to free speech by arbitrarily restricting the number of candidates that he can financially support.

The First Amendment says the government shall not make a law "abridging the freedom of speech." This freedom is right next to the protection for the press. These two protections are listed together because they are both designed to ensure an informed citizenry and that people can influence the political process; remember that back in the time the Bill of Rights was written "press" included pamphleteers and propagandists, not just newspapers (and obviously not television, radio, or internet journalism).

If the Founding Fathers wanted to protect free speech and freedom of the press it was not because they were worried that the government might stop us from looking at cats on the internet or reading a review of the new Italian restaurant in town. Political speech and criticism of politicians and government was exactly what the First Amendment was meant to protect. So restricting campaign contributions certainly seems to run counter to the First Amendment.

At the most basic level, I fail to see the reason to have any limits on campaign contributions. Particularly with modern technology, requiring rapid disclosure of all donors in a format that is easily searchable should handle any worries about undue influence. If voters believe that a candidate will be too beholden to a large contributor, the correct response is simply to vote for another candidate.

After all, if the First Amendment protects nude dancing as a form of speech (which courts have repeatedly said it does), then funding speech by a political candidate should be protected as well. And protected means protected, not allowed under Congressionally-specified limits. Limits on individual or aggregate contributions both look to me a lot like a law that is "abridging" free speech.

Further, it is hard to see how limiting the number of candidates supported by a single donor accomplishes any beneficial purpose. Even if you believe there is a point in limiting the contributions a donor can make to a single candidate (which is a separate debate from whether such a limit is constitutional), why restrict the number of candidates to which a donor can contribute that limited amount?

Finally, beyond the simplistic position that unfettered campaign contributions should be allowed because that is what the Constitution says, removing the limits would also remove the unintended consequences of all the legislative attempts to regulate political speech. All the 527 groups, PACs, and other vehicles that have been created by smart campaign finance lawyers and political strategists to allow wealthy people to funnel large sums of money into election campaigns exist because of the campaign finance rules that limit direct contributions to candidates.

One of the most important rules to learn about economics and politics is that people are smarter than the government. Politicians can write as many laws as they wish; somebody will find a way around them if they have enough of an incentive. With government influencing so much of society today, there is more than enough incentive to want to influence elections. The only way to get the money out of politics would be to make politics less important (i.e., make government smaller and less intrusive). Since that seems unlikely to happen, the money is here to stay.

Passing laws that limit contributions does not stop people from trying to financially support candidates. It only means that it is more complicated to accomplish the goal. Also, because people who are determined to speak with their wallets will find a way, campaign finance laws lead to the creation of new groups, organizations, and methods that make it much harder to follow the money and to determine who is behind which group.

Even worse, when groups that are (officially) independent of candidates participate in elections, the candidate is not directly responsible for the messages sent using the donors' money. If campaign contributions were not limited, people would be much more likely to simply donate money to the candidates of their choice rather than work indirectly through some independent group. This would ensure we know who the donors are and also would likely make the campaign ads and other messaging stay on a higher plane since the candidate would have to take responsibility for what is being said.

The law seems very simple to non-lawyers. If the Constitution says the government cannot limit free speech and if political contributions are free speech (which courts have confirmed), then campaign contribution limits would seem to be unconstitutional.

Unfortunately, once a room full of smart lawyers and judges gets involved, the law can become very complicated. However, just because courts find a contribution limit on donations to a single candidate reasonable does not mean that a person should be unable to donate the allowed amount to as many candidates as a donor wishes. The Supreme Court should rule against the Federal Election Commission in McCutcheon.

Funnily enough, the people who are so eager to limit campaign contributions also decry all the new and creative ways people find to get around the campaign contribution limits designed to thwart free speech. If the Supreme Courts remove the limits on direct contributions to candidates, most of these shadowy and indirect ways to influence elections will disappear.

Ironically, the best way to stop these independent expenditures is not legislation to create more barriers but to remove the legal barriers to direct campaign donations. If people can legally donate all they want to the candidates of their choice, there will be no need to make indirect contributions and independent political groups illegal. The easiest way to dry up the money flowing to these independent groups is to let the money flow straight to the candidates.