Freedom of speech and campaign finance reform

People can donate money to an unlimited number of candidates during a federal election, but there are limits on how much an individual can spend on each candidate. This is the result of the Supreme Court’s decision in McCutcheon v. FEC on Wednesday. The per-candidate limit was already in place.

President Barack Obama and Mitt Romney spent over $1 billion each during the 2012 election. This might seem like a waste. And indeed, the amount of money spent on political campaigns is a great concern for many Americans. But spending money on political campaigns is an extension of the freedom of speech and press protected in the United States Constitution.

The First Amendment prevents Congress from passing any law abridging the freedom of speech or the press. Courts must tailor any restrictions on free speech and a free press to when national security is directly threatened, like publicizing troop movements in a time of war.

Limits on campaign donations are only justified in exceptional situations, too — there must be evidence of corruption. Corruption in political campaigns is giving money with the expectation of receiving a direct benefit in return, not just the appearance of increased access to a candidate.

It might seem like the decision in Citizens United v. Federal Election Commission (2010), — addressed in McCutcheon v. FEC — giving corporations equal First Amendment protection as people, was wrong.

But corporations, like The New York Times in New York Times Co. v. Sullivan (1964) and New York Times Co. v. United States (1971), have helped win the expansive First Amendment protection that exists today. (I give credit for this idea to my reading of various works by Floyd Abrams, the famous First Amendment lawyer.)

Free speech and freedom of the press are both freedom of thought, which includes the right to express yourself clearly.

For anyone who lacks time or ability, but wants to spread their beliefs in writing, pictures, sounds, film, or by any other means, they can pay someone to do it for them. Likewise, companies, unions, or groups of people gathered for a common cause are able to spend money attempting to convince others that their product, service, or idea is best.

Any individual can create a Political Action Committee (PAC) and donate as much as he or she wants to a political campaign. Companies and unions must form PACs to donate to political campaigns. PACs create a degree of accountability. If companies, unions, or other non-political groups were to spend directly on political campaigns, using funds indistinguishable from those used for non-political purposes, the views supported by the organization would not necessarily represent its constituent members; there would also not be anyone with direct accountability for how the money was spent.

Speech in the First Amendment is not just speech: First Amendment speech includes writing and speaking. The First Amendment’s press is not just what operates printing machines: the press can include websites or blogs. People have a right to free thought and speech in its various forms, and if people join together, they do not lose that right.

U.S. citizens must allow opposing views to be voiced. They sacrifice the ability to think for others, even when they believe they are right and others are wrong. Politicians and public figures must suffer harsh criticism; if one of them wants to seek damages, the Supreme Court found in Branzburg v. Hayes (1972), he or she must prove a statement was both false and that the person making the statement acted with reckless disregard for the truth. 

Anyone in the U.S. can offer an opinion. Information that someone or a certain group wishes to keep secret can be made public. The right to free speech and a free press is balanced with rational consideration of circumstances to decide when restrictions must apply. But a democracy’s strength is in meeting the highest burden before imposing any limitations on free expression.

A great amount of money is spent in the U.S. on political campaigns. Yet, money can not buy votes —  the Supreme Court has held that the Constitution prevents it —, nor does superior funding guarantee a successful election. No amount of money can buy acceptance of an idea, and ideas are currency in politics.

There are many burdens a free society suffers to protect its freedom. Inflated and possibly irrational spending on elections is one of these burdens. If it is wasted spending, however, capping political campaign expenditures is not a remedy. Spending on an idea that a person chooses to believe in is an extension of free thought and free speech; the Supreme Court’s removing a limit on the number of candidates an individual can contribute to during a federal election expands the First Amendment right nearer its widest acceptable margin. This is where it and every other right guaranteed by the Constitution belongs.