05/20/2014 02:41 pm ET Updated Jul 20, 2014

McCutcheon et al. vs Federal Election Commission and Freedom of Speech

Recently, in McCutcheon et al. vs Federal Election Commission, the majority of the Supreme Court ruled that although "Congress may regulate campaign contributions to protect against corruption or the appearance of corruption....may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others." There are two types of limits on campaign contributions. Base limits restrict how much money a donor may contribute to a particular candidate or committee, and aggregate limits restrict how much money a donor may contribute in total to all candidates or committees.

This case did not challenge the base limits which had been "previously upheld as serving the permissible objective of combating corruption." The Court concluded "however, that the aggregate limits do little, if anything, to address that concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment."

In relation to free speech, the First Amendment says that "Congress shall make no law... abridging the freedom of speech..." What has followed after its ratification are interpretations and the issue is what interpretations fit better the meaning of democracy.

As it is recognized by the Court, political speech is not undertaken just for the sake of it, but to influence the opinion of others. And this influence has consequences not only for the speaker but also for others. The equal right of everyone to speak freely in the shaping of public opinion, is a prerequisite for the functioning of a democratic society. In a democratic community, for the distribution of obligations and benefits to be acceptable to all without coercion, it needs to be the outcome of a discourse where everyone is allowed to participate, free to make any assertion relevant to the discourse, to present evidence in support of his/her assertions, and to question any assertion made by others in seeking to assess the validity, or the likelihood of validity, of claims made by others.

In a large community, it is not feasible to have a discourse where every citizen can participate directly. The direct discourse is mostly substituted by an indirect discourse which involves speech delivered by a number of means, including speeches of politicians traveling the country, the distribution of printed material, door to door campaigning by campaign workers, and mainly the mass media -- radio and television. Although the delivery cost of direct speech is zero to low, that of indirect speech is very high and is covered mainly by campaign contributions.

In direct discourse, money does not influence how much someone speaks -- does not abridge the freedom of speech. In indirect discourse, it does. Under laissez-faire conditions, those who have more money speak more, those who have less money speak less, and those who have no money cannot speak at all -- themselves and their representatives need money to cover the delivery cost of speech.

In Arizona Free Enterprise, the Court recognized that "burdening the speech of some -- here privately financed candidates and independent expenditure groups -- to increase the speech of others is a concept wholly foreign to the First Amendment.... The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom -- the "unfettered interchange of ideas." In McCutcheon et al. vs Federal Election Commission, the majority of the Court recognized that the political participation of some should not be restricted "in order to enhance the relative influence of others."

In indirect discourse, the delivery cost of speech burdens the speech of those who cannot pay, and limits their participation in the "unfettered interchange of ideas". It increases the speech of those who can pay, and enhances in many ways their influence on the outcome of the democratic process.

Those who can pay more can direct the discourse more to the issues of their interest, they can speak more on any issue, and they can speak with limited or no scrutiny of their speech. Campaign contributions affect who is elected and what issues are advanced by those elected.

The speeches of politicians, and television commercials "touting a candidate's accomplishments or disparaging an opponent's character" are a limited substitute of free speech and "unfettered interchange of ideas" in a democratic political discourse.

A substitute for laissez-faire campaign contributions could be an option of unlimited contributions where above a reasonable amount, established after a practical political discourse, the money would be used not to fund the speech of individual politicians or parties, but to fund a real broad political discourse. If those who can afford large contributions are interested in real free political speech, their contributions should be used to finance such a discourse. Rich donors could choose the agenda of the discourse that their contributions would finance, if they would feel that some issues are more important than others, and get the benefit of the scrutiny and of the reshaping that a discourse would provide, as well as the benefit of a well informed public in decision making. Spending large contributions to support what real democratic elections are about would also remove the concern of corruption from large campaign contributions.

The above option would still favor the large campaign contributors in steering the discourse to the issues of their preference. But it would at least allow scrutiny of their speech and a better interchange of ideas on these issues.

It is the need of money that restricts the participation in the democratic process -- of those who cannot afford the delivery cost of speech -- more than restrictions to large campaign contributions, which can be afforded only by the rich. Rules on campaign contributions should restrict speech oligopoly that distorts the democratic process, and should steer the indirect discourse closer to direct discourse. Unrestricted campaign financing makes the saying "government by the people for the people" to sound more like "government by the people and money for the people and money", where money here means the greater representation of those having money.

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