Thursday, April 10, 2014

Campaign Finance and the First Amendment: Why Justice Thomas Was Right

by Gerard Emershaw


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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