By Rachel Brody |
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.
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.
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.
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.
About Rick Esenberg President and General Counsel of the Wisconsin Institute for Law and Liberty
Liz Kennedy Counsel at Demos
Blair Bowie Democracy Advocate at the U.S. Public Interest Research Group
Lawrence Norden Deputy Director of the Democracy Program at the Brennan Center for Justice at New York University
Hans A. Von Spakovsky Senior Legal Fellow at the Heritage Foundation