Guest Column: ‘McCutcheon’ ruling: A victory for free speech and a win for democracy

April 29, 2014
Supremecourt

By Luke Wachob

In striking down the aggregate limits on contributions to candidates, PACs and political parties challenged in McCutcheon v. FEC, the Supreme Court delivered a victory not only to political donors seeking to support more challenges to incumbents, but to everyone who is affected by American politics and law. The reason is a key and often forgotten point about the First Amendment: it protects speech, not speakers.

Freedom of speech is often treated as a contemptible burden in American politics; something that must be endured, but not respected. When hateful speech is heard, or a wealthy individual spends huge sums of money on speech we disagree with, we commonly ask why they ought to possess a right that we feel does more harm than good. This was the general reaction to the McCutcheon decision: why does anyone need the right to spend more than $123,000 (the limit declared unconstitutional) on political contributions?

This misses the point by focusing solely on the speaker and ignoring the broader social benefits that result from a free and uninhibited exchange of ideas. Speech is constitutionally protected and unlimited because society benefits from the increased knowledge that is generated by it, and because the government cannot be trusted to decide what speech is “good” and what speech is “bad.” Chief Justice John Roberts writes in the McCutcheon decision that “The First Amendment does not protect the government, even when the government purports to act through legislation reflecting ‘collective speech.’”

The wisdom of this principle has been borne out by history, which teaches us that the power to censor is always used against those who criticize the powerful. This was true a century ago when the government prosecuted pacifists in World War I and communist sympathizers in the Red Scare. It is just as true today, when protesters at political conventions are put in caged “free speech zones,” such as at the 2004 Democratic National Convention, and when a majority of the nation’s universities maintain unconstitutional speech codes used to punish criticism, such as occurred in 2007 when Valdosta State University had a student “administratively withdrawn” (expelled) for criticizing the construction of a parking garage on campus.

Speech restrictions of all kinds exist to protect those in power from criticism. In the case of contribution limits, incumbents are protected from challengers. Despite its reputation as a tool of the establishment, money spent on political speech actually creates an opportunity to challenge entrenched political interests by increasing voter knowledge. This is especially valuable for outsider candidates running grassroots campaigns without the aid of connections to the ruling class or major media corporations. Pessimism about politics might lead us to think money spent on political advertising is wasted, but research shows that spending in campaigns is correlated with higher voter turnout and higher levels of public knowledge. This should not be surprising; the more advertisements you see about a candidate, the more likely you are to want to figure out what all the commotion is about and discuss the race with your friends.

This is how unlimited political speech comes to benefit everyone affected by American public policy: through producing a more informed, engaged electorate. Yet, when cases like McCutcheon are discussed in the public sphere, they are presented as “wins” for large donors and “losses” for the rest of us.

This is nonsensical — speech is not a zero sum game. We all benefit from the exchange of ideas, regardless of their source. That is why cries of “corporations are not people!” are not an adequate response to the Citizens United decision, which allowed corporations and unions to spend unlimited sums of money on political speech. The entity speaking does not matter, the speech itself does.

It is an unfortunate indication of our culture’s declining respect for the First Amendment that a ruling that removes an unnecessary restriction on the ability of citizens to participate in the political process is vilified. Perhaps that would begin to change if we recognized that more speech for Citizen A creates ripple effects increasing political participation throughout the system. He often speaks for thousands or millions of others who agree with him, and those who disagree may still be informed or motivated by his message. We must remember that voters are not robots who treat ads as orders, and in this social media age, people can nearly instantly respond, rebut, subvert and lampoon the speech with others if the message is false or unpersuasive. And on Election Day, everyone still gets exactly one vote.

The answer to speech is more speech. The First Amendment should mean that the government does not get to say “you’ve said enough.” With McCutcheon v. FEC, the Supreme Court has brought us one big step closer to living up to that ideal.

Luke Wachob is the McWethy Fellow at the Center for Competitive Politics.

Posted April 30, 2014

3 Comments

  1. Red Nail

    May 1, 2014 at 7:30 am

    By making free speech a “pay to play” game… it diminishes the voices of the masses while amplifying the voice of the wealthy.

    The only ideal this ruling brings is closer to is corruption. Mr. Wachob and elitist mentanlities akin to his are the problem. The solution is revolution.

  2. Kraig Kircher

    May 5, 2014 at 6:39 am

    If you are swayed by this letter, please do some research. The organization where Mr. Wachob is a fellow is a conservative think tank with Koch Brother ties. Is it any wonder that Mr. Wachob finds that the McCutcheon decision is so wonderful? This decision is the second in an apparent trilogy that allows unlimited money to be injected into our political system under the guise that money is speech. The right wants to be able to attempt to buy elections through unlimited spending; when coupled with the right to lie in electioneering, it distorts our electoral process. Keep in mind that some who support this position have actually proposed that that the wealthy should have more votes. This is a dangerous move away from a representative government and toward a government run for the benefit of the oligarchy. Instead, support a constitutional amendment to overturn Citizens United and McCutcheon by clarifying that money is not speech, and imposing limits on spending.

    • Joe Trotter

      May 7, 2014 at 3:03 pm

      Kraig,
      We at CCP are not among those who “support this position” that “the wealthy should have more votes.” Simply put, we believe that the government should not be limiting the freedom of speech and association for anyone. Again: anyone. That includes the wealthy, the poor and everyone who falls in between.

      I’m surprised that out of one side of your mouth you’re complaining about an “oligarchy” and out of the other side tout a constitutional amendment that would cede Americans First Amendment rights to speak and associate about politics to control by the ruling class. There is little that would set our democracy down the path to a true oligarchy more than enabling politicians to control the extent and manner in which Americans can speak and associate politically.

      Don’t let politicians pull one over on you.

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