Where Free Speech Ends and Corruption Begins

Here's a radical idea for campaign finance reform.

By SHARE
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There is a saying in politics that the three most important things to win in an election are money, money and more money.

If the last election cycle is any indication, money doesn't seem to be a problem. In 2012, more than $6 billion was spent on election activity – making it the most expensive election cycle in U.S. history.

This explosion in spending was in large part due to new rules enabled by the Supreme Court's 2010 ruling in the Citizens United case. That decision allowed corporations and unions to spend unlimited (and often undisclosed) amounts of money on election activities, although not directly on a candidate's campaign. Further limitations were imposed on activities that could be coordinated with an individual candidate or party committee. But in practice, the court's ruling opened the floodgates for individual, wealthy donors to pour more than $970 million in 2012 into "independent" super PACs and non-profit organizations seeking to influence the election outcome, largely through negative advertising.

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

The Citizen United ruling was a marked change from the post-Watergate era, when Congress and the Supreme Court passed and upheld laws that protected against the potential of one individual corrupting a candidate or party through large, excessive donations. Corporations were barred from giving directly to candidates and individuals were limited in their giving a federal candidate (currently $2,600 in one election year) and collectively over a two-year election cycle (currently $123,200). All moneys donated would also have to be disclosed – no more brown, paper bags or suitcases full of cash.

Now, we are witnessing another challenge to the laws that could result in even more money flowing into the election system. On Tuesday, the Supreme Court heard oral arguments in McCutcheon v. Federal Election Commission – a case where the plaintiff has claimed that it's a violation of his free-speech rights to have been restricted in his political givings. He has argued that he should be allowed to give the maximum amount to as many candidates as he sees fit.

The truth of the matter is that, as long as the courts maintain that money is a form of free speech, limits on campaign contributions will be viewed as a violation of one's right to express themself freely.

[Read the U.S. News Debate: Should the Supreme Court Uphold Personal Limits on Campaign Contributions?]

In the McCutcheon case, Chief Justice Roberts argued, "Consider somebody who is very interested, say, in environmental regulation and very interested in gun control, [Under] the current system ... he's got to choose. Is he going to express his belief in environmental regulation by donating to more than nine people there? Or is he going to choose the gun control issue?"

The chief justice is right – the current laws restrict us from a full expression of our beliefs.

But, Justice Ginsberg countered by arguing that, "these limits promote expression, promote democratic participation, because what they require the candidate to do is, instead of concentrating fundraising on the super-affluent, the candidate would then have to try to raise money more broadly in the electorate."

She's also right – Barack Obama proved this to be true as 30 percent of his donations come from individuals contributing $250 or less, while raising a total of $1 billion. However, the justice's statement is not likely to carry the argument, as the courts have never found "promoting democratic participation" as a reason to limit campaign contributions. Instead, they have upheld limits to "prevent corruption or the appearance of corruption."

[Check out our editorial cartoons on President Obama.]

It seems that there must be a balance between allowing individuals to express themselves freely, while, at the same time, not allowing a corruption of the system.

Roberts asked the pertinent question, "If one can give the legal limit to nine candidates without violating the government's concern about corruption, why does the 10th tip the scale?"

I believe we have enough money in the system and always will. So why not doing something radical? – Limit individual contributions to $50, but permit an individual to give to as many folks as they choose. This would allow for Justice Ginsberg's notion of encouraging a wide participation without the perception of corruption, but also addresses Justice Roberts's concern for limiting speech.

Probably too radical, but might just be the new paradigm that is needed.

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