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Originally published April 8, 2014 at 5:23 PM | Page modified April 9, 2014 at 1:31 PM

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Guest: Supreme Court McCutcheon ruling protects political speech

The U.S. Supreme Court decision in the McCutcheon case is consistent with the First Amendment and with America’s long tradition of unrestricted political speech, writes guest columnist William R. Maurer.


Special to The Times

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THE U.S. Supreme Court’s decision in McCutcheon v. Federal Election Commission was only out a few minutes before elected officials and campaign-finance reformers began condemning it as another disastrous step toward an American oligarchy.

But Americans should not be alarmed by the ruling. The decision is consistent with the First Amendment and with America’s long tradition of unrestricted political speech.

The case concerned a federal law that restricted how many candidates or political committees a donor could support with a maximum campaign contribution.

Shaun McCutcheon, the plaintiff in the case, contributed the maximum amount to 16 federal candidates, but the law made it a crime for him to contribute a single cent more to another candidate. He sued, arguing that the law violated his First Amendment right to support the candidates of his choice.

In a 5-4 decision, the Supreme Court agreed.

The law’s demise will have little practical effect. Donors rarely reached the aggregate limit. According to a statement by the Federal Election Commission, only 646 donors reached the biennial limit of $123,200 in 2012. The additional contributions the decision permits will still be subject to limits on how much money someone can contribute to an individual candidate. Moreover, the laws regulating Washington state elections do not have this kind of aggregate limit.

Opponents of the decision argue that it is still wrong, based mainly on slogans like “money isn’t speech” and an ill-founded concern that treating financial contributions as protected under the First Amendment will allow billionaires to buy democracy or drown out the voices of speakers with less money.

In a narrow sense, these opponents are correct about one thing: Money is not speech. But money enables speech, and that is why the right to make political contributions is protected by the First Amendment.

This is an enormous and heavily populated country. The Puget Sound region alone is home to 3 million people. In order to communicate with voters and for voters to hear from candidates, it takes money.

Try publishing a book, making a video or printing a flyer without spending one penny. It cannot be done. This means that if the government can restrict how much money one can spend in disseminating a political message, it can effectively silence any speech that carries beyond the sound of your voice.

The opponents’ other arguments are not just wrong, but patronizing. Take the claim that political spending allows billionaires to buy democracy. Under this view, Americans are nothing but mindless receptacles who will simply do whatever advertising tells them to do. If that were the case, we would be driving new Oldsmobiles, drinking Pepsi Clear and reminiscing about President Ross Perot.

The uncritical cheerleaders of campaign-finance restrictions also overlook the severe costs the restrictions impose on speakers, particularly speakers of more modest means than the plaintiffs in McCutcheon.

First there is the monetary cost: Only the well-off can afford the lawyers, accountants and bookkeepers necessary to follow the maze of complex rules and regulations that apply to campaigns.

But there are also other, more insidious costs: These rules are often applied for purely political purposes.

For instance, in Washington, state law gives politically interested private parties the ability to sue their opponents for purported violations. Faced with ruinous fines and even the possibility of criminal charges for getting something wrong, many people of modest means simply sit out the entire process.

McCutcheon rests upon the idea that the government has a very limited role to play in restricting peaceful political activity. That is the point of the First Amendment. And for proponents of open and unrestrained political debate, the decision is something to celebrate.

William R. Maurer is an attorney with the Institute for Justice in Bellevue. He practices First Amendment law and successfully challenged Arizona’s system of taxpayer-financed campaigns at the U.S. Supreme Court.



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