Lack of Proximity Between Money and Speech — Not A Factor in Court’s McCutcheon Decision

SONY DSCThe U.S. Supreme Court today issued another ruling, in the vein of Citizens United vs. FEC, which further deregulates monetary contributions to support political activities. The case is McCutcheon vs. FEC.

In McCutcheon, the Supreme Court today struck down restrictions in federal law on the aggregate contributions individuals may make to candidates, political parties and committees. The decision did not strike down limits on contributions to individual candidates for President or Congress, set now at $2,600 an election.

Chief Justice John Roberts said the aggregate limits “intrude without justification on a citizen’s ability to exercise `the most fundamental First Amendment activities.” Further information is available here.  Critics of the Court’s decision in Citizen’s United said the decision involved (inappropriate) judicial activism, was a usurpation of powers that (more properly) reside in the political branches, and was the antithesis of conservatism, in that it over turned decades of law, passed with bi-partisan support. Supporters said the Court repealed regulations that stood in the way of the free exercise of political speech, performing its function to enforce the first amendment to the Constitution.

More concretely, critics of Citizens said the Court’s reasoning, that corporations should be treated as persons for purposes of first amendment, free speech, rights, was without basis or precedent.  However, even opponents of Citizens, found it more difficult to challenge the Court’s equation of money and speech, under the particular facts of that case. In Citizens, the plaintiffs were actually trying to fund speech – they wanted to air a film critical of Hillary Clinton, and to advertise the film during television broadcasts. Regulations at the time got in the way.

One can offer many good arguments questioning whether corporations are persons. But it’s more difficult to argue that spending money to directly air a political viewpoint on television is conceptually different from paying to print a pamphlet or buying the soap box and megaphone for the guy on the downtown street corner.

Though McCutcheon involves individual, rather than corporate, spending on “speech,” there is no apparent proximity between the money and speech. Even if you think that was a mere fig leaf in Citizens, it’s altogether gone in McCutcheon. The plaintiff in McCutcheon wanted to make more (general, indiscriminate) contributions to candidates and political committees. He felt constrained contributing to just a few candidates.  Not a word in his argument for funding a movie, a book, pamphlet, or soap box.


3 thoughts on “Lack of Proximity Between Money and Speech — Not A Factor in Court’s McCutcheon Decision

    1. Irv Lefberg

      Yeah, Kurt. I think all the rhetoric we;ve heard over decades about the Warren Court’s judicial activism, lack of restraint, inclination to usurp the political branches, invention of concepts and doctrines that have little or no basis in the words of the constitution……all of those are exactly what this Court has done,



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