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Free Speech Or Bribery?

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Cross-posted from To The Point Analyses


The Roberts Court, October 2010
(Image by SOURCE: SUPREME COURT)
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Part I -- Legalizing Bribery 

On Wednesday, 2 April 2014, the U.S. Supreme Court took another step toward the destruction of campaign finance reform with a five-to-four decision known as McCutcheon v. Federal Elections Commission. One gets the feeling that this is part of a general campaign, waged by class-biased, ideologically committed conservatives, against government regulation, which they see as somehow a violation of their constitutional rights. As if to suggest that this is so, the Court majority rationalized their decision in the name of "free speech." 

What does this ruling do? 

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First, the ruling removes limitations on overall campaign donations given in an an election cycle. The wealthy can now sit down and write checks to unlimited numbers of candidates and political organizations and thereby make themselves indispensable in an electoral process dependent on the raising of large sums, particularly for television advertising. Indeed, in this way the influence and demands of wealthy donors continue to be more powerful and persuasive than the solicitations of ordinary constituents whose interests the elected official is pledged to serve. In other words, McCutcheon vs. FEC  pushed forward the process of legalizing bribery within our political system -- a phenomenon which already is well along in its development.

Second, the ruling corrupts the notion of free speech by equating it with the use of money. Thus, the Court majority confuses free speech with that very act of bribery noted above. They seem to be pretending that we are dealing with the transparent efforts of constituents seeking to convince their political representatives of a certain point of view. This is an illusion. We are dealing with donor individuals and organizations funneling millions of dollars to politicians in need of small fortunes just to maintain their professional positions, and to do so in exchange for political and legislative favors. That is the exercise of free speech only if you equate it with the suborning of elected officials. It is hard to believe that the five Supreme Court Justices who voted in the majority do not know this. And if they do, they are guilty of using the Constitution to rationalize criminal behavior. 

Part II -- The Specific Arguments and Their Flaws 

Argument One -- "Contributing money to a candidate is an exercise of an individual's right to participate in the electoral process through both political expression and political association." 

In taking this line of argument the justices ignore an established principle that operates in the social (as well as physical) realm -- that quantity can shape quality and in so doing "act as a causal mechanism in social behavior." For instance, you can say that contributing of money to campaigns and parties is an inherent part of the right to political participation. However the quality of that right, that is, its consequence, is dependent on the quantity of the donation and its source. 

Thus, this form of political participation has different consequences if a multitude of citizens give small amounts to various candidates and parties than if a few citizens, cleverly bundling their donations, give millions. The former is unlikely to skew an election through overwhelming, and often distorting, media advertising or to compromise the integrity of the candidate once elected. The latter is almost certain to do these things. In other words, so much money coming from a few sources into an electoral process dominated by the need for money transforms donations into bribes and payoffs. This transformation is exactly what effective campaign finance reform is designed to prevent.

Argument Two -- Restricting contributions is like restricting the number of endorsements a newspaper can make. "Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse."  

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The problem with this assertion is that newspapers do not usually trade in favors. Big donors almost always do. Newspapers usually do not expect those they endorse to change the regulatory environment in which the newspaper operates. Big donors almost always do. By making the comparison between newspaper endorsements and the actions of large donors, the Justices are making a false analogy. They are mixing apples and oranges. 

Argument three -- "Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner 'influence over or access to' elected officials or political parties." 

This statement contains one dubious assumption and one misstatement of fact. First, assuming that "spending large sums of money in connection with elections" is not done in an "effort to control the exercise of an officeholder's official duties" and therefore does not result in "quid pro quo corruption" is, at best, dangerously naive. 

Do these Justices really believe that the Koch brothers, Sheldon Adelson and a host of corporations and special interest organizations would spend millions of dollars in an election cycle apart from "an effort to control the exercise of an officeholder's official duties"?  

The claim that "an individual who spends large sums" does not "garner 'influence over or access to' elected officials or political parties" is just wrong. What do these Justices think the American Rifle Association or the American Israel Public Affairs Committee are doing if not buying influence and access? 

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http://www.tothepointanalyses.com
Lawrence Davidson is a history professor at West Chester University in Pennsylvania. He is the author of Foreign
Policy Inc.: Privatizing America's National Interest
; America's
Palestine: Popular and Offical Perceptions from Balfour to Israeli
Statehood
; and Islamic Fundamentalism. His academic work is focused on the history of American foreign relations with the Middle East. He also teaches courses in the history of science and modern European intellectual history.

His blog To The Point Analyses now has its own Facebook page. Along with the analyses, the Facebook page will also have reviews, pictures, and other analogous material.


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