The Supreme Court’s ruling last month that total limits on campaign contributions were unconstitutional has produced great alarms and hand-wringing by partisan activists.
I welcome the opportunity to defend the decision—not only because my name is on the case.
The alternatives and harsh rhetoric that we have heard from critics in recent days are among the gravest threats to our fundamental liberties--chiefly the First Amendment--in the nation’s history.
The Court has firmly spoken for itself, of course. In the ruling by Chief Justice John Roberts, the majority supported the appeal that I filed with the Republican National Committee.
The First Amendment, he wrote, protects the public’s “right to participate in democracy through political contributions.” Although those rights can be curbed to guard against corruption or the appearance of corruption, Roberts added, “We have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”
But some Senators and their interest-group allies said recently that they aren’t prepared to accept the Court’s well-stated constitutional findings. During a hearing of the Senate Rules and Administration Committee, chaired by Sen. Charles Schumer (D-N.Y.), he said that a series of Supreme Court rulings since 1976 “is trying to take this country back to the days of the robber barons... That needs to stop.”
Those adverse consequences seem a figment of the critics’ imagination. Without offering details, Schumer ominously warned that these Court decisions “could result in the end of any fairness in the political system as we know it, and open the door to an era of corruption like we haven’t seen in this country in over a century.”
The response, he added, will be a Senate vote later this year on a proposed constitutional amendment by Sen. Tom Udall (D-N.M.)—with 35 co-sponsors, all Democrats--that would permit unspecified regulations in the raising and spending of money for election campaigns. As Udall said, he wants to reverse the Supreme Court’s “green light” that “a billionaire in one state gets to influence the election in 49 other states.”
I am a citizen and small businessman in Alabama, though my bank account is a few zeroes short of a billionaire. The ambitions and the talking points of these big-government Senators and their allies are a heavy-handed threat to our nation and its founding freedoms—a far greater threat than their speculation about prospective corruption, which incidentally would already violate federal laws.
Although money may finance speech, we the people just want to pay outright for our free speech and political communications--unlike the Senate insiders. How many hundreds of thousands of dollars do we pay annually for the government to promote Udall’s “free media” while he is office?
In their eagerness to permit federal and state governments to regulate campaign finances, including limitations on political activity, these “speech police” contend that they do not intend to restrain freedom of the press. That is a noble objective, though their prospective campaign restrictions undoubtedly would impose severe limits on media advertising.
It’s funny to me how so many long-time incumbents in both parties with huge war chests of money want to stop free people from spending a mere $5,200 per candidate on political ideas. It seems that they just don’t want hear any better ideas.
The proposed constitutional amendment would significantly impair the First Amendment’s free-speech rights, which the Supreme Court has diligently sought to protect. The so-called reformers fail to mention this point, which is self-evident. As described by Schumer, the proposal is a license for endless regulations. The government that couldn’t manage computers to oversee health-care insurance now has plans to dictate how you spend your money in politics.
This could be the worst constitutional folly since Congress imposed Prohibition early in the 20th Century and then reversed itself a decade later. Our Bill of Rights deserves better.
The fear-mongering was on display last week during a hearing of Schumer’s committee that accompanied the unveiling of their legislative strategy. Some of the same players who helped to write the 2002 Bipartisan Campaign Reform Act, otherwise known as McCain-Feingold, have further raised the stakes in response to the Supreme Court ruling. They want to impose even more draconian rules to restrict our liberties.
It’s hard to escape the irony that many leaders of both parties have welcomed the Court’s ruling on my challenge. They moved quickly and privately to alert their contributors that the “aggregate” ceilings have been removed, though the individual contribution limits that were enacted in 2002 remain in effect.
At the same time, some officials in each party have publicly attacked the decisions with their dangerous nonsense. Not surprisingly, the same leaders occasionally have taken both sides. That’s just politics, right? As I have discovered, hypocrisy is a common feature of the Washington scene.
Politics also provide context for the harsh criticisms that have extended to the judicial reasoning of the Chief Justice and Justice Anthony Kennedy—who wrote the 2010 campaign-finance decision in Citizens United.
Less than a year ago, some of the same critics hailed those two Justices for separately joining the Court’s landmark 5-4 rulings supporting the Affordable Care Act, and same-sex marriages.
These situational appraisals reveal that some Court observers react with results-oriented judgments and ignore the Justices’ constitutional analyses.
Ratifying any constitutional amendment requires two-thirds votes in the House and Senate and approval by legislatures in three-fourths of the states. That would be an uphill effort. The proponents contend that their latest alternative is the last hope to avoid political apocalypse.
What are they waiting for? If they are serious, they should move their proposal now—rather than using it as a campaign stunt.
I’m an electrical engineer, not a public official. When I decided to file my claim about the constitutionality of a federal law, I took a crash course in federal law and the courts as I began what initially seemed a steep challenge. That was hard and serious work. I ultimately prevailed. It wasn’t the theatrical showboating that has been on display in the Senate.
Those who have created the campaign-finance mess in recent years should be the last to dictate restrictions of our freedoms. Nor should they impose new rules designed to protect their reelection.
“The last people we should be asking for advice at this hearing are those who helped write the law that created the problem in the first place,” Sen. Pat Roberts (R-Kan.) aptly told the Senate committee. “Let’s stop this fool’s errand of speech regulation. Let’s stop trying to prevent people from criticizing us.”
Big government is not a new idea. It is a very old idea and it always ends the same way—with poverty and conflict.
A constitutional republic that limits mob-rule mentality and protects the people from an egregious government is really the newest idea.
Shaun McCutcheon was a successful plaintiff in McCutcheon vs FEC. He is author of "Outsider Inside the Supreme Court."