Since the passage of McCain-Feingold and subsequent regulations by the Federal Election Commission, courts have been steadily whittling away at these policies’ blatant infringements on First Amendment assurances of free (political) speech.
Although GW Bush appointee Janice Rogers Brown criticized the other two justices (another GWB appointee and a Reagan appointee) for their “sweeping interpretation of First Amendment issues,” she ultimately agreed with their conclusion.
Many observers expect the Supreme Court to strike down even more of McCain-Feingold’s provisions when it rules on a case heard last week. (See WSJ article)
Two Cases
The two cases mentioned here enjoy both similarities and dissimilarities. The DC case involved a nonprofit pro-abortion group, while the SCOTUS case addressed the question of free speech rights exercised by corporations and unions.
Both courts seem to show a preference for treating nonprofits as if they enjoy free speech rights similar to those of individuals. After all, what is a nonprofit besides a group of individuals banding together in a common cause? How can we say that individuals acting as a group allows the government to infringe on their rights?
The amendment says nothing about individuals anyway. It simply says, “Congress shall make no law … abridging the freedom of speech….” That’s it. No law abridging free speech. Period. It doesn’t say “individual free speech.” It just says “free speech.”
While many suppose that SCOTUS will weaken restrictions on corporations and unions, there is a serious question about whether it is appropriate to treat such organizations as analogous to individuals with respect to free speech rights. (See CS Monitor article) They too are organizations of individuals bound together, but many see basic motivational differences between them and nonprofits.
Regardless of how SCOTUS rules on this case, it will not take long before corporations and unions figure out how to work through nonprofits to skirt current campaign finance laws. Of course, the DC case could also be appealed to the appeals court’s full panel and to the Supreme Court. So that story isn’t over yet.
Options
While some whine about the decline of campaign finance laws, it must be understood that one of the main reasons such laws exist is to protect incumbents. The laws do nothing to limit spending by candidates. They mainly limit spending by those opposed to incumbents. These laws create a false sense of security among the public, which is led to believe in the bizarre distortion that the laws keep the bad guys out of politics.
There is no shortage of people that tell us that the solution to all of this is public funding of campaigns. In a country where free speech is guaranteed, this simply won’t work. The courts have repeatedly recognized that the ability to spend money to get a message out is equivalent to free speech. Restrictions on campaign spending violate the First Amendment. In short, public funding would require a constitutional amendment, and that’s simply not going to happen.
Some tell us that the best answer in a political system like ours is transparency. Let anyone give any amount of money they want to any candidate or political cause, but require immediate and complete disclosure of each donation.
This sounds good, but what about privacy rights? A number of people that gave money in support of California’s Proposition 8 last year found themselves the targets of terroristic threats and activities after the proposition passed, thanks to California’s campaign transparency laws. (See NY Times article) Of course, this kind of thing can backfire. Public support tends to wane once it becomes known that some have threatened the safety and livelihood of those with differing political opinions.
What we ultimately want is a healthy republic with healthy underlying democratic institutions. This requires a balancing act between rights and responsibilities. And that requires constant adjustment.
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