Debate Club

Ditch These Unconstitutional Limits on Campaign Spending

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Advocates of campaign finance "reform," i.e., restrictions on political participation, often tell us that "money" is not "speech." There is a pithy response to this.

So what?

Limitations on campaign contributions do not limit "money";  they limit the ability of persons to combine their resources to speak. The First Amendment would mean little if it did not protect the means by which messages are communicated. The freedom of speech would confer a hollow right if all it protected was the right to stand on the side walk and yell at passing cars.

[Check out our collection of political cartoons on Super PACs.]

The United States Supreme Court has made clear that making contributions to a candidate for public office is a protected exercise of free speech and the right of association. It could hardly be otherwise. A democracy in which citizens could not come together and effectively communicate their preference for candidates or policy positions wouldn’t be much of a democracy at all.

Nevertheless, the court has said, limits on the amount an individual may contribute to a candidate may be permissible because in an effort to prevent the potential for corruption or its appearance. But it has also said that this is the only justification for limiting political spending. It has also made clear that money given to someone other than a candidate does not create a sufficient risk of corruption to outweigh the First Amendment interest in making them.

Once you understand this, it is easy to see that aggregate limits are a regulation that the law has left behind. They can operate to prevent only those contributions to candidates in an amount that Congress (or a state legislature) has decided to permit, i.e., that have been determined not to present and unacceptable risk of corruption or its appearance.

[See a collection of political cartoons on Congress.]

In other words, aggregate limits are an effort to say that a certain amount of free speech and association is too much. After a certain amount of political participation, we should just shut up.

That might make sense if you believe that it is constitutionally permissible to restrict the ability of wealthier individuals to spend money on politics in an effort to level the playing field. It has recognized that the First Amendment creates a strong presumption against the notion that government may decide how and how much it’s citizens may come together to speak.

Aggregate limits do not serve that interest and are unconstitutional.

Rick Esenberg

About Rick Esenberg President and General Counsel of the Wisconsin Institute for Law and Liberty

Tags
Supreme Court
politics
campaign finance

Other Arguments

#2
52 Pts
The Government Shutdown Shows Contribution Limits Are Needed More Than Ever

Yes – The Government Shutdown Shows Contribution Limits Are Needed More Than Ever

Blair Bowie Democracy Advocate at the U.S. Public Interest Research Group

#3
49 Pts
Striking Down Campaign Donation Limits Would Be a Radical Move

Yes – Striking Down Campaign Donation Limits Would Be a Radical Move

Lawrence Norden Deputy Director of the Democracy Program at the Brennan Center for Justice at New York University

#4
46 Pts
Creating a Congress of the Rich and For the Rich

Yes – Creating a Congress of the Rich and For the Rich

Lawrence Lessig Professor of Law and Leadership at Harvard Law School

#5
45 Pts
The Supreme Court Could Be Creating a Right to Bribery

Yes – The Supreme Court Could Be Creating a Right to Bribery

Nick Nyhart , Kurt Walters Research and Policy Analyst, and President and CEO of Public Campaign

#6
34 Pts
A Knockout Blow for Campaign Finance Laws

Yes – A Knockout Blow for Campaign Finance Laws

Susan Lagon Senior Fellow at the Government Affairs Institute at Georgetown University

#9
-41 Pts
Freer Political Speech Strengthens Our Democracy

No – Freer Political Speech Strengthens Our Democracy

Ilya Shapiro Senior Fellow in Constitutional Studies at the Cato Institute

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