Money and Politics: Are Campaign Contributions Speech?

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Cornell Woolridge holds signs as he rallies against money in politics before the Supreme Court hears arguments in  McCutcheon v. FEC on October 8, 2013 in Washington, DC.
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The Supreme Court’s campaign finance decision in McCutcheon v. Federal Election Commission has reignited a debate about the role of money in politics. Some equate campaign donations with speech and argue that campaign finance restrictions violate the First Amendment. Others believe that campaign finance restrictions are the only way to prevent political corruption. 

Paul Sherman, senior attorney at the Institute of Justice, argues the former. He debates Jamin Raskin, a professor of constitutional law at American University, senior fellow at People for the American Way and state senator representing Montgomery County in Maryland.  

"This decision constitutes a virtual wipe out of what's left of our federal campaign finance laws," says Raskin. "Essentially, this applies to a tiny percent of the population–less than one percent of one percent—who give at that level. They were allowed to give up to $123,000, essentially, if you add all the different aggregate levels together. Now they're going to be able to give millions of dollars directly to candidates. There's very little left of the campaign finance regime."

But Sherman doesn't see eye to eye with Raskin. 

"One thing that not a lot of people know is that the overwhelming majority of American states do not have aggregate contribution limits like the federal aggregate limit," says Sherman. "There is not a shred of evidence that was presented in this case, or even that was not presented in the case, finding that those states are either more corrupt or less well governed than states that do have such limits."

Sherman says that when analyzing the majority opinion, Chief Justice John Roberts is arguing that hypothetical corruption cannot be the basis for aggregate limits. 

"In the real world, there's no evidence that our 40 years of campaign finance restrictions have done anything to actually reduce corruption or the appearance of corruption in politics," says Sherman.

Sherman says that there is something that stands between massive political donations and elections: Voters.

"Ultimately, no matter how much people are giving to campaigns, it's up to voters to decide if the messages that they're hearing are persuasive and compelling," says Sherman. "If they don't, than those candidates who are receiving those contributions aren't going to be elected. As to whether we need to have a broader definition of corruption, I don't think so. I think what we're seeing with Justice Breyer's dissent is an interpretation of corruption that would swallow the rule established in the First Amendment that we protect the individual's right to decide for themselves how much they want to participate in the political process."

Raskin, however, says that line of thinking produces a bit of a quagmire.

"On that definition of corruption, the one that Chief Justice Roberts is pushing and I think Paul [Sherman] is agreeing with, it's hard to see why there should be any campaign finance laws other than laws against bribery," says Raskin. "Even laws against bribery, by the way, I think would be suspect under their definition—after all, if money is just speech and giving money is just an act of political association or expression, why shouldn't I be able to give $5,000 or indeed $1 million directly to a politician to express how strongly I feel about a particular issue?"

In his rebuttal to Raskin's theory on bribery, Sherman says there is a fundamental difference between giving money to a candidate for an election and giving money to a candidate for personal use. He says that the former implicates the First Amendment strongly, the latter does not.

"In any event, there's very little campaign finance law left," says Raskin. "I think for people who do believe in what Justice Breyer is talking about, which is representative democracy where politicians are not beholden to donors but are beholden to people and should be governed by reason and communication rather than money, we have to figure out a way to rebuild an meaningful system of political equality in terms of the campaign finance regime."