Free speech and free spending vs. fair elections: A Constitutional dilemma

So often we hear about our inherent rights to what is guaranteed in the Constitution. If it’s regarding free speech, we are entitled to say anything because the First Amendment protects us. If it’s about owning a gun, any of us can do so because the Second Amendment guarantees it.

Our founders provided very little guidance in these situations in which one right collides with another. This certainly came to play in the recent McCutcheon v FEC Supreme Court case regarding financial contributions to political campaigns. In a 5-4 decision, SCOTUS ruled that individuals could essentially contribute as much as they wanted to in as many campaigns as they wanted to. The decision was clearly a victory for those who believe that those rights guaranteed by the First Amendment are essentially inviolate. The right to free speech extends beyond the spoken or written word to money, which is now considered another means of expression.

Justice Stephen Breyer, speaking for the minority (which also included Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor) wrote, “The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo.”

The minority argued that the Federal Elections Commission is mandated to “prevent quid pro quo corruption,” and its appearance—was a “sufficiently important governmental inter­est” to place limits to campaign contributions. This means that the right to express oneself through money in a political campaign is not absolute. There comes a point at which society as a whole has the right to take steps to try to keep its electoral process as clean and honest as possible.

We should keep in mind that placing limits on campaign contributions is far from the first time that the Court has ruled that the right to free speech is not absolute. In numerous decisions, the Court has ruled that an individual cannot slander another individual. In other words one cannot knowingly and willfully say something that is false with the intent of harming someone else. And it’s well known that “you can’t yell fire in a crowded theater.” That dictum emanates from Supreme Court rulings that one cannot say something that causes a threat to public safety.

What the Court has not said is that our electoral process (outlined in Article. I., Section 1. and Article. II., Section. 1. of the U.S. Constitution) has as much of a right to be honest as people have the right to free speech. The dilemma of protecting both the right to free speech and the right of citizens to have honest elections clearly come in conflict with one another. In recent years, the Court has ruled that the right to free expression through campaign contributions is of greater value than the right of people to know that their elections are free of undue outside influences.

In practical terms, because Republicans are generally the party of “big money,” they benefit more than Democrats from few restrictions on campaign contributions. However, Democrats have worked to take advantage of the loopholes in previous restrictions on campaign contributions, and Barack Obama was the first presidential candidate to refuse to take public monies for his campaign, so that he could raise an essentially unlimited amount of money from private sources.

In light of the McCutcheon v FEC ruling, we are left with two ways of cleaning up our elections. The first would be a constitutional amendment protecting our right to honest elections by curtailing private contributions and taking additional steps to eliminate electoral fraud. The second would be for candidates to voluntarily refuse contributions and for the public to consider that to be such a positive step that it will back such candidates.

The hurdles that must be cleared for a constitutional amendment that protects our right to free elections to be passed are monumental. It’s highly doubtful that any such amendment will be forthcoming in the near future. So, we must ask candidates and the public to accept the notion that excessive money in politics is a bad thing, and for the public to hold candidates who raise (or their proxies raise) excessive amounts of money to be a stain on their reputations and qualifications to hold public office. That too seems to be asking for too much, but we should at least try.