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The First Amendment Wins


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In today’s McCutcheon ruling, the Supreme Court struck down limits on the number of political campaigns to which Americans may make the maximum legal contribution of $5,200. Previously, those seeking to further their political principles had been limited to aggregate donations amounting to no more than $123,200 per two-year election cycle. The ceiling on donations to an individual campaign will stand, but the limitation on cumulative donations was thrown out. Democrats have pronounced themselves aghast and complain that the subsequent flow of donations will corrupt our political system — as though allowing free people to use their own money as they choose in furtherance of their own views were somehow anything other than democratic.

Those who object to today’s ruling argue that the law should distinguish the freedom of expression and association from the freedom to use money toward those ends. In any other context, the absurdity of that position would be immediately apparent: We enjoy freedom of the press, but an actual offset printing press of the sort used by the New York Times is soberingly expensive: The Times built a $450 million printing facility in New Jersey and a $280 million facility in Queens within the space of only a few years in the early 1990s, and spends several hundred million dollars each year to print and distribute its newspaper. One of the functions of the New York Times is to influence elections and public policy, usually in destructive directions. If it were limited to spending $123,200 per biennium, or to providing column inches worth no more than $5,200 to any candidate or officeholder during the same period, it would not enjoy meaningful freedom of the press.

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If the exercise of our rights is to be actual rather than hypothetical, then it follows that restrictions upon the means of political expression are inseparable from restrictions upon political expression itself. That is what the McCutcheon case is about, and why conservative groups have been leading the opposition to limitations upon political expression imposed by self-interested incumbents in Washington.

The question of self-interest is worth dwelling on for a moment. We have no doubt at all that large political donors such as the National Association of Realtors have very specific policy interests and that they use their financial resources to attempt to further those interests, which are on occasion at odds with the national interest, e.g., federal housing policy since 1934. Farmers, lawyers, the teachers’ unions (which are reliably the biggest of big-money donors) all have self-interested reasons to want to influence policy. The best way to check those interests is through openness and competition: Tort lawyers have their interests, insurance companies have theirs, and those interests are rivalrous. What is too often overlooked is this: Politicians are self-interested, too. There is a principled objection to campaign-finance restrictions — i.e., that Americans enjoy the right to dispose of their own property in the furtherance of projects protected under the First Amendment — but there is a structural objection as well: It is deeply foolish to allow political incumbents to set the rules under which citizens are allowed to criticize them or to compete with them. The Left hated the Citizens United decision, which was at its heart a case about whether an organization should be allowed to show a film critical of Hillary Rodham Clinton in the run-up to an election. It takes a particularly warped view of the relationship between citizen and state to conclude that justice and fairness require the censorship of those who would criticize men and women of great power.

The McCutcheon case, like so many politically charged cases, came down to a 5–4 decision, with the so-called liberals on the Court staunchly defending the illiberal position. Which is to say, our First Amendment freedoms are one black-robed vote away from being made contingent upon the political whims of the very people in Washington against whom the Bill of Rights is designed to protect us. The Senate, and thus the fate of any Supreme Court nominations that might be made between now and the end of the lawless presidency of Barack Obama, is in the hands of those who would limit our First Amendment liberties, from free speech to the free exercise of religion. There is an opportunity to change that this year, and it is worth remembering exactly who it is who wants to exercise police control over the means of political speech.



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