Money and Politics: Are Campaign Contributions Speech?

Thursday, April 03, 2014

Cornell Woolridge holds signs as he rallies against money in politics before the Supreme Court hears arguments in McCutcheon v. FEC on October 8, 2013 in Washington, DC. (Drew Angerer/Getty)

The Supreme Court’s campaign finance decision in McCutcheon v. Federal Election Commission has reignited a debate about the role of money in politics. Some equate campaign donations with speech and argue that campaign finance restrictions violate the First Amendment. Others believe that campaign finance restrictions are the only way to prevent political corruption. 

Paul Sherman, senior attorney at the Institute of Justice, argues the former. He debates Jamin Raskin, a professor of constitutional law at American University, senior fellow at People for the American Way and state senator representing Montgomery County in Maryland.  

"This decision constitutes a virtual wipe out of what's left of our federal campaign finance laws," says Raskin. "Essentially, this applies to a tiny percent of the population–less than one percent of one percent—who give at that level. They were allowed to give up to $123,000, essentially, if you add all the different aggregate levels together. Now they're going to be able to give millions of dollars directly to candidates. There's very little left of the campaign finance regime."

But Sherman doesn't see eye to eye with Raskin. 

"One thing that not a lot of people know is that the overwhelming majority of American states do not have aggregate contribution limits like the federal aggregate limit," says Sherman. "There is not a shred of evidence that was presented in this case, or even that was not presented in the case, finding that those states are either more corrupt or less well governed than states that do have such limits."

Sherman says that when analyzing the majority opinion, Chief Justice John Roberts is arguing that hypothetical corruption cannot be the basis for aggregate limits. 

"In the real world, there's no evidence that our 40 years of campaign finance restrictions have done anything to actually reduce corruption or the appearance of corruption in politics," says Sherman.

Sherman says that there is something that stands between massive political donations and elections: Voters.

"Ultimately, no matter how much people are giving to campaigns, it's up to voters to decide if the messages that they're hearing are persuasive and compelling," says Sherman. "If they don't, than those candidates who are receiving those contributions aren't going to be elected. As to whether we need to have a broader definition of corruption, I don't think so. I think what we're seeing with Justice Breyer's dissent is an interpretation of corruption that would swallow the rule established in the First Amendment that we protect the individual's right to decide for themselves how much they want to participate in the political process."

Raskin, however, says that line of thinking produces a bit of a quagmire.

"On that definition of corruption, the one that Chief Justice Roberts is pushing and I think Paul [Sherman] is agreeing with, it's hard to see why there should be any campaign finance laws other than laws against bribery," says Raskin. "Even laws against bribery, by the way, I think would be suspect under their definition—after all, if money is just speech and giving money is just an act of political association or expression, why shouldn't I be able to give $5,000 or indeed $1 million directly to a politician to express how strongly I feel about a particular issue?"

In his rebuttal to Raskin's theory on bribery, Sherman says there is a fundamental difference between giving money to a candidate for an election and giving money to a candidate for personal use. He says that the former implicates the First Amendment strongly, the latter does not.

"In any event, there's very little campaign finance law left," says Raskin. "I think for people who do believe in what Justice Breyer is talking about, which is representative democracy where politicians are not beholden to donors but are beholden to people and should be governed by reason and communication rather than money, we have to figure out a way to rebuild an meaningful system of political equality in terms of the campaign finance regime."



Jamin Raskin and Paul Sherman

Produced by:

Jillian Weinberger


T.J. Raphael

Comments [10]

Michael from Rhinebeck, NY

With respect to the recent Supreme Court McCutcheon decision and the advance of corporate personhood during the past century: Is the Second Amendment the next frontier in corporate rights? Surely a dystopian thought! We really would be regressing to feudalism or even pre-feudalism.

May. 02 2014 11:18 AM

I would make a distinction between money spent directly on political advertising, which I think is fairly characterized as free speech, versus money given to candidates and parties. In the latter case, a strong argument exists that such giving leads to the appearance and possibility of corruption. In my mind, the best solution is adequate public financing of campaigns to eliminate or reduce the dependence of politicians on those who donate to them.

Apr. 03 2014 03:57 PM
Max G. Mahaffee from Charleston, SC

Regarding the decision earlier this week, my question is where are all of the people that worry about the Founding Fathers (they would never dream that such crap as DONATIONS as set down by the US Supreme Court is "freedom of speech") and where are those that complain about "activist judges" (the latter regarding Roe versus Wade decision years ago on abortions)? In other words, the justices (the 5 in the 5 to 4 decision) are severely deviating from the strict construction of the U.S. Constitution and are being activist judges but unfortunately ruling for the rich yet again, and disguising it under "Freedom of Speech." The slippery slope of the United Citizens decision not too long ago has lead to the current "stuff" being spewed by this overtly activist five justices on the US Supreme Court! But those who shout about the "Founding Fathers" and "activist judges" are those who sought the most recent decision and have been handsomely paid--in our liberty! Thus, they remain silent, but I do not.

Apr. 03 2014 03:49 PM
Larry Fisher from Brooklyn, N.Y.

Freedom of Double Speak

Apr. 03 2014 02:28 PM
Anon from Midwest

People won’t buy (vote for) what they do not want (1985 reformulated Coca-Cola), so campaigns aren’t always bought, but is the marketing industry successfully selling bridges when they get people (non-biological/corporations) to buy Super Bowl Commercial ads at $133,000 per second? Are the “people” buying those bridges being duped or expecting a return on their investment?
Disingenuous arguments for the Supreme Court decision would be complimented by the aged retort of “If you are so smart, why aren’t you rich?” The rich are smarter, or at least smart enough to have won a Supreme Court decision, to say nothing of having gotten bailed out of the financial crisis. Achieving is rewarding.

Apr. 03 2014 02:24 PM
Michael from Austin, TX

How to get ALL money out of politics, more importantly, out of governing...a radical concept in three steps...

1) No parties, only independents...No party apparatus = no party loyalties. No party loyalties = representatives who vote on behalf of their constituents.

2) Term limits for everyone. If you're not trying to make a career out of being a politician, you're more likely to cast votes based on what your constituents sent you there for.

3) Make all votes in Congress secret. That is, we never know how our representatives vote. In a truly representative democracy we rely on those we send to Congress to vote for our interests, our interests in general, not specific interests. If special interests never know how a politician votes, they will not give the politician money to vote a particular way.

Radical but refreshing!

Apr. 03 2014 01:13 PM
Jordan from Portland

My young daughter wants to know the connection between money and speech(free or otherwise). Does more money give one more rights of free speech?

Apr. 03 2014 12:55 PM
Vince from New jersey

The answer to the issue of money in government is to have all campaigns directly funded by the government with a limited time for campaigning, and term limits for every office. Money totally corrupts every level of government in this country.

Apr. 03 2014 12:54 PM
Kay Merkel Boruf from Dallas

Founding Father$ How wealthy were the men who founded the US? Money always has power. At the wealthy 100 year old girls school where I taught 38 years, I met responsible, wealthy families on both sides of politics and I met a few who were drunk on the power their wealth "temporarily" gave them, until the next divorce or scandal or stock market dip. Let people give all the money they want. In 2014, with Twitter, FB, and every journalist a key-stroke away, campaigns can't be bought.

Apr. 03 2014 12:53 PM
Kelvin Armstrong from Dallas Texas

Just as 1/5 of a man and seperate but equal was law of the land, I am not surpised such ignorance exists in today's Court process of Judicial Review.

Apr. 03 2014 12:29 PM

Leave a Comment

Email addresses are required but never displayed.