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InsiderOnline Blog: April 2014

More Free Speech!

On Wednesday, the Supreme Court struck down the aggregate contribution limits in federal elections. The five-justice majority in McCutcheon v. Federal Election Commission ruled that the aggregate limits bore little relation to the legitimate government interest of preventing quid pro quo corruption. Trevor Burrus explains:

Given that every one of [McCutcheon’s] contributions was below the individual limit, was [the aggregate limit] preventing any quid pro quo corruption to allow him to give $1,776 to eight more candidates, but not nine, 12, or 200? The obvious answer to that question seems to be “no,” and it is the answer that five of the nine justices gave, thus striking down the limit.

Burrus points out that the remarkable thing about the decision wasn’t that five justices ruled in favor of more free speech, but rather that the four justices in the minority now believe the First Amendment empowers the government to police the marketplace of ideas:

Writing in dissent, Justice Stephen Breyer, joined by Justices Kagan, Sotomayor, and Ginsburg, argued that a new version of “corruption,” that is, the corruption of the marketplace of ideas, should become part of the Court’s jurisprudence. In that version of corruption, the government is affirmatively in charge of making sure “a few large donations” don’t “drown out the voice of the many.”

While this may sound initially attractive, a moment’s thought makes it clear that this view is untenable. Elected officials cannot be trusted to fairly regulate the process upon which their jobs depend and the government could have no meaningful principle to determine how loud someone should be allowed to speak or even what the “voice of the many” is saying. As Chief Justice Roberts wrote, “the degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process.”

The frightening thing about McCutcheon is that a near-majority of the Court holds this view that turns the First Amendment on its head. If we don’t limit the doctrine of corruption to actual candidates, if we empower the government to regulate a “corrupt” marketplace of ideas, then there is no reason to limit it to elections. The subscription base of the New York Times is certainly too large, perhaps we should limit how many copies can be printed? And, Oprah, well she is certainly too influential, so while we’ll allow her to speak privately, we’ll make it illegal for her to use her network for political speech. [Daily Caller, April 2]

But, as the majority opinion put it: “the Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” [McCutcheon v. Federal Election Commission, April 2]

Posted on 04/04/14 10:29 PM by Alex Adrianson

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