Recently in McCutcheon
v. FEC, the Supreme Court voted 5–4 along ideological lines to overturn
a campaign finance law which limited the amount that an individual could donate
in a two-year election cycle to a total of $48,600 to candidates and $74,600 to
political action committees. However, the Court ruled that the legal imposed
limit of $5,200 to any individual candidate—$2,600 for primary election and
another $2,600 for general election—was constitutionally valid.
In his concurring opinion,
Justice Clarence Thomas argued that the Court should have also ruled this
$5,200 limit on donations to any one individual candidate unconstitutional.
Justice Thomas was correct.
The rationale for limits on how
much an individual may donate to a single federal political candidate can be
found in Buckley v. Valeo
(1976). In that case, the Court ruled that the limiting of political donations
that individuals can make to a candidate is a justified limitation of First
Amendment rights for the following reason:
Under a system of
private financing of elections, a candidate lacking immense personal or family
wealth must depend on financial contributions from others to provide the
resources necessary to conduct a successful campaign. The increasing importance
of the communications media and sophisticated mass-mailing and polling
operations to effective campaigning make the raising of large sums of money an
ever more essential ingredient of an effective candidacy. To the extent that
large contributions are given to secure a political quid pro quo from
current and potential office holders, the integrity of our system of
representative democracy is undermined.
Justice Thomas focuses mainly on
issues related to the First Amendment and the appropriate standard of review
that should be imposed upon campaign contributions. Justice Thomas objects to
the view in the Buckley ruling which
stated that “[t]he quantity of communication by the contributor does not
increase perceptibly with the size of his contribution,” and “[a]t most, the
size of the contribution provides a very rough index of the intensity of the
contributor’s support for the candidate. Instead, Justice Thomas claims that campaign
contributions do increase the quantity of communication by allowing the
candidate in question to amplify his or her voice. He also claims that larger
contributions express the level of approval a donor has for the candidate in
question. Justice Thomas also objects to the practice of limiting contributions
but not limiting direct expenditures by a candidate because the two are just “two
sides of the same First Amendment coin.”
What Justice Thomas
does not discuss is the aforementioned worry about corruption. Without doubt if
donors were allowed to give unlimited contributions, it would increase the
worry that such a donor could “own” a candidate by having that candidate “in
his [or her] pocket.” However, on the other side of that is the First Amendment
which states: Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the government for a redress of grievances.
While the Court far too often
allows other considerations to outweigh free speech, they are wrong in doing
so. The First Amendment says “no law.” It does not qualify this by saying “unless
the government has a more important objective which outweighs the value of free
speech.”
The real problem is this. The
government has grown far beyond its Constitutional boundaries. The President is
akin to a Caesar. The executive branch agencies do most of the true legislating
in violation of Article I of the Constitution. Congress has surrendered most of
its power to the executive branch, but it uses the Commerce Clause to do the
bidding of its corporatist campaign contributors. So, how does Congress and the
Supreme Court address all this unconstitutionality? By violating the
Constitution once again by limiting free speech. This is wrong. Two wrongs do
not make a right. This is a political version of swallowing the spider to catch
the fly. The real question is why does the Court keep allowing the federal
government to swallow that fly?
A Constitution-sized government
is not a powerful government. The President as defined in the Constitution is
no Caesar. The executive branch is not a one-headed legislator with a multitude
of tentacles. Congress is very limited in what it can do. The Tenth Amendment
further limits the power of the federal government. A Constitution-sized
government has elected civil servants who do not have enough power to be worth
buying. Even if they did, there is nothing preventing the people from amending
the Constitution to enact term limits for members of Congress as was earlier
done with the President. It would not even be impossible to further limit the
President to merely one term if necessary. This would further the amount of
time that elected federal civil servants could accept anything akin to bribes.
The bottom line is that unless and until the people limit the power of the
federal government to what is stated explicitly in the Constitution, bribery
and corruption will be the rule rather than the exception regardless of any
campaign contribution limits. There will always be ways around those.
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