Monday, March 11, 2013

The Supreme Court’s opportunity in McCutcheon v. FEC to strengthen the First Amendment and enhance political speech

As Snowquester-weary Washington stays home, according to some media outlets and liberal lawyers, a different Armageddon will approach the Capitol this fall when the Supreme Court hears McCutcheon v. FEC.

In the case, Alabama resident Shaun McCutcheon and the Republican National Committee are challenging the aggregate biennial limits that currently restrict how much an individual can give to various candidates and political groups every two years. 

Immediately after the Court’s decision to hear the case, the usual players were at the ready with moralistic denunciations and portentous predictions.  

Unsurprisingly the New York Times lead the way describing the Court’s review as “deeply worrisome.” The Washington Post dutifully followed, solemnly cautioning the case could be the “new Citizens United.

Not to be outdone were the lawyers who earn livings thwarting the First Amendment. Fred Wertheimer of Democracy 21 opined a pro-liberty ruling would create “a system of legalized bribery.” Another lawyer, Tara Malloy, choose to attack the integrity of the Court’s Justices: “It has become readily apparent that there are a number of justices who are willing to usurp Congress’s role as legislator when it comes to matters of campaign finance.”

Predictably, the ominous forecasts ignore much of the story and distort the rest.

The challenge does not involve the limits an individual can give to a particular candidates, parties, or committees. The Supreme Court in Buckley v. Valeo considered the constitutionality of those limits and found them noncorrupitng. The challengers here seek only give those Court-sanctioned amounts to additional candidates and committees who support their favored policy positions.  

As lead attorney James Bopp states, the aggregate limits put political parties and candidates at a disadvantage compared to Super PACs. “A voter can vote against a candidate, but they can’t vote against a super PAC . . . Candidates should be central to our system, but they are the ones limited, while super PACs and advocacy groups can just go wild.”

Brad Smith, founder of the pro-First Amendment Center for Competitive Politics, reinforces the claim of disadvantaged parties and candidates with hard numbers. In a debate with Mr. Wertheimer he noted the limits for candidate contributions is about half what it was when first enacted in 1974, after adjusted for inflation. The political party limit is even more disparate: about one-quarter.
Despite the demagogic hyperbole, what a victory for Mr. McCutheon would do, is allow people who donate to political campaigns greater freedom and discretion. It would also place more accountability and transparency in the system by redirecting some political money back to the candidates and parties. Additionally, it would force incumbents to be more responsive to their constituents by easing the threshold burdens on challengers. Finally and most importantly, it would be a victory for freedom of speech and association by solidifying individual liberty to participate in politics against government mandates and coercion.

By Paul H. Jossey: please follow me on Twitter.

Disclosure: My firm DB Capitol Strategies is counsel to Mr. McCutcheon.

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