Consider This A Warning: Supreme Court Restores Freedom

Thomas Warns*

Today the Supreme Court issued an opinion in the case McCutcheon v. Federal Election Commission. McCutcheon was challenging a campaign finance law that limited the amount any individual could donate overall to candidates, parties, and PACs at $123,200 per each two year election cycle, as well as a cap on contributions to candidates at $48,600. McCutcheon had donated $1,776 to fifteen candidates from Congress, but could not give the same amount to twelve more people as desired because of the cap on contributions to candidates.

Political contributions count as protected speech.

Political contributions count as protected speech.

The Court sided with McCutcheon in a 5-4 decision that was written by Chief Justice Roberts. The opinion struck down both the overall cap and the cap on contributions to candidates, but kept intact the limitation on donations to an individual candidate which currently stands at $2,600 per election cycle. Justice Thomas agreed with the majority but wrote a separate opinion to say that he would have struck down the entire law.

Following four years after Citizens United, there was no shortage of people claiming the end of free elections was at hand. The truth of the matter is however, that the Supreme Court got this decision right. As Chief Justice Roberts noted (while quoting Buckley v. Valeo), the law attempted to intrude upon a citizen’s ability to exercise one of “the most fundamental First Amendment activities.” Donating money to political campaigns is an exercise of free speech, and a freedom that is available to everyone. Of course some people have more money than others, but that shouldn’t restrict people unduly from exercising their rights to the maximum they are able and willing to exercise it. Should we ban all campaign contributions because the poor man on the corner begging for change has zero dollars to give to a campaign? It seems unfair for Max Weber to be prevented from donating to Hillary Clinton in 2016 because he can contribute more to his candidate than other people can.

Should we really be prevented from expressing ourselves past a certain point because someone else exists that can spend more?
— Thomas Warns

This decision will also have other beneficial side effects. It could help break America away from the two-party system. Currently, the two major political parties are entrenched and can collect enough donations from different people to dominate the electoral landscape. Now a credible third (or fourth) party could emerge since it would be easier for a limited number of people to raise enough money and challenge the establishment.      

 Keeping the limit of $2,600 per candidate per election cycle is defensible, as it hard to imagine a Congressman not feeling beholden to a millionaire that writes him a $10,000,000 check. At least by donating to parties and PACs, there is one layer of remove present, even if it is a flimsy layer at times. Of course, transparent disclosure laws could also effectively deter such uncomfortably large donations.

But think about this in the context of campaign finance restrictions in general: I can walk to the corner and yell “Vote for Rand Paul in 2016” and no one would say that is illegal. I could also hold up a sign saying “Vote for Rand Paul in 2016” on said corner and no one would say it is illegal. I could further buy a billboard on that street, or purchase air time on the radio, or distribute literature supporting Rand Paul with my own dime. I am exercising my freedom of speech, as I believe that Rand Paul will be the best candidate. But if I give money to Rand Paul so that his campaign may get that message out more effectively, at some point I am exceeding a limit and breaking a law. Who gets to set that limit, and why? Should we really be prevented from expressing ourselves past a certain point because someone else exists that can spend more, and might be more influential?

*Thomas Warns is a J.D. Candidate, class of 2015, at NYU School of law, Staff Editor on the NYU Journal of Law & Liberty , and author of the weekly column "Consider This a Warning."