The United States Supreme Court Ruling Expands Freedom of Expression by Striking down the Overall Cap on Political Contributions

           The Supreme Court provided another victory for freedom of expression earlier this month by striking down the cap on each citizen’s campaign contributions to congressional candidates overall per election cycle as an unconstitutional infringement on the freedom of speech.  The cap was part of the elaborate and burdensome system of campaign finance laws enacted by Congress and signed into law by Presidents over the years, starting with the 1975 post-Watergate liberal Democratic Congress.

            In addition to the limits donors may make to individual candidates for Congress, a cap of less than $50,000 was placed on the total amount donors could give to all congressional candidates each election cycle.  Therefore, a candidate could give many congressional candidates a small amount of money or the maximum to only a few dozen.  The cap was thus effectively a limit on the number of candidates to whom a citizen could donate to the maximum allowable limit.  As a result, citizens could not necessarily donate the maximum contribution of about $2,300 to all of the congressional candidates from their party in their state or all of the female candidates across the Union or all of the candidates of a particular ethnicity or religion, or all candidates who are veterans, or all the candidates who support a particular position. 

While retaining the limit on citizens’ contributions to each individual candidate per cycle, the Supreme Court ruled that the amount of the overall cap was arbitrary and the cap itself served no compelling government interest.  The majority of the Court struck the cap down as unconstitutional because it violated the freedom of speech.  The Court has previously defined making political contributions as exercising free speech.  Because the Supreme Court allowed the limits to contributions citizens can make to congressional candidates to remain, the Court hardly undermined the post-Watergate campaign finance laws cherished by the Left, as many liberals have hysterically alleged.  If a citizen cannot unduly influence one candidate, which is the basis of the supposed concern behind the laws, by making no more than the maximum permitted contribution, then neither can he unduly influence several candidates.

I would have agreed with Justice Clarence Thomas, however, who concurred with the plurality in a separate opinion, that the federal government lacks the constitutional authority to limit the contributions made by citizens at all, just as it lacks the authority to regulate campaign spending by citizens.  Therefore, he argues, all limits on campaign contributions should be struck down as unconstitutional restrictions on the freedom of expression. 

I would also argue that although contributing and spending money are types of political expression, they are not necessarily exercises of the freedom of speech, but of the press (i.e. the printing press), which means the freedom to print, or more broadly, to publish, as distinct from strictly oral communication.  Thus, print advertisements, television or internet ads or even radio ads are exercises of the freedom of the press.  Just as one must spend, and presumably raise, money to operate a printing press, one must raise and spend money to publish electronic ads.  Nonetheless, the Supreme Court ruling is a victory for the freedom of expression, however it is defined, for all citizens or combinations of citizens. 

The ruling will also have the practical effect of making campaign fundraising easier, as one of the unintended consequences of liberals’ regulation of campaign contributions to reduce what they regard as the corrupting influence of money and specifically the disproportionate political influence of wealthy donors was that by limiting contributions, a candidate needs more donors to raise the equivalent amount of money he would have been able to raise absent the contribution limits.  As a result, campaign finance laws had the opposite effect of what was intended by making each maximum contribution all the more significant and thus more influential, as well as causing candidates to have to be even more concerned about raising money, and thereby to be even more vulnerable to its supposed corrupting influence.  Because of the Court’s ruling, each maximum contribution will constitute a less significant portion of a candidate’s total contributions, which, consequently, minimizes the influence of each individual donor, and each congressional candidate will be less vulnerable to the corrupting influence of money because it will now be easier to raise.