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10/08/2013

Some Doubts about McCutcheon v. FEC
Michael Ramsey

Today's argument in McCutcheon v. FEC suggests that the Court (or at least its five conservative members) may strike down another piece of federal campaign finance legislation -- in this case, a limit on aggregate contributions (that is, how much a person can contribute to all candidates combined).

I have substantial doubts whether there is an originalist argument for that conclusion.   True, the law seems a bit silly -- I can understand limits on the amount on can contribute to one candidate, but what's the harm in contributing a small-ish amount of money to many candidates?  And I'm not persuaded by my former co-clerk Larry Lessig's quasi-originalist argument based on the framers' supposed fear of corruption.  Even assuming Lessig can figure out what the framers collectively thought about corruption, I'm baffled as to how he can translate that into a confident assessment of what they would have thought about any particular aspect of campaign finance law (especially one with as opaque policy justifications as the one in McCutcheon).

My concern about McCutcheon is more basic.  The claim relies on the assertion that campaign contributions are speech (thus protected by the First Amendment).  But what evidence is there for that?  I accept that spending money to convey a message is so closely related to speech that it must be protected; otherwise, the government could effectively ban speech by preventing anyone from spending money to convey a message.  It would be absurd to say that the government cannot ban newspapers and yet to allow the government to prohibit people from spending money to operate a newspaper.  Thus one's own expenditures to convey a campaign-related message are protected, as the Court has held.  But contributions to someone else are a step further, because (a) making a contribution does not in itself convey a message, and (b) while the contribution may be used by the recipient to convey a message, it might not be, and in any event the contributor does not know what the message will be. 

So I think there actually may be something to the much-maligned distinction in Buckley v. Valeo, the old campaign finance case that McCutcheon wants to overrule, between campaign contributions and campaign expenditures.  At least, the distinction seems plausible as a textual matter, and I would want to see some founding-era evidence that it was not consistent with the framers' understanding of the freedom of speech. 

It's worth considering on this point the brief of the Cato Institute supporting McCutcheon (that is, opposing the law), by the very able Ilya Shapiro.  Shapiro makes outstanding, persuasive and I think genuine originalist arguments when he can.  But here he has essentially nothing originalist to say.  Aside from policy arguments, the brief principally relies on the proposition that campaign contributions promote greater political discourse, which the framers wanted.  That's true, but without more I think irrelevant.  The First Amendment says Congress shall make no law abridging the freedom of speech, not that Congress shall make no law restricting anything that promotes political discourse.  The brief dismisses this objection as "playing word games" -- but text-based originalism is, indeed, focused on words.  "Speech" is protected.  Non-speech is not.

In a sense, Shapiro's brief is a close cousin of Lessig's -- an attempt to say, on the basis of a general principle the framers supposedly shared, what the framers would have wanted in a particular case.  That they reach opposite conclusions illustrates the futility of the approach.  Likely the framers wanted robust political discourse and feared corruption.  Unmoored suggestions about how they would have struck a balance between the two are just speculation.