McCutcheon Got Your Tongue?
Free speech. Ain’t it grand? The right to speak your mind, no matter how
unpopular your words may be. It is more
than a Constitutional right, it is as American a virtue as you can find, the
very quintessence of who and what we are and what we have fought for.
You can see this ideal best
illustrated by Norman Rockwell in his “Freedom of Speech” painting. One man stands alone at a town hall
meeting. He’s young, but his ruggedly
handsome face is a bit weathered, which fits with his plaid shirt, open at the
neck, and earthen-colored suede jacket with a folded pamphlet in the pocket. His hands are those of someone who works
hard, his head is tilted slightly back, presumably looking up at someone at a
podium. Surrounding him in the audience
are his neighbors; a woman in a hat, some older men in white shirts and narrow
ties.
“Freedom of Speech” was part of a
quartet (a reverent Freedom of Religion, a Thanksgiving setting for Freedom
from Want, and a scene of parents tucking in two small boys in Freedom from
Fear) drawn from FDR’s 1941 “Four Freedoms” State of the Union Address.
The “Speech” painting is the
strongest of the four. It has Rockwell’s
peculiar ability to make the observer both a viewer and a participant: you can
see yourself there. I would contrast it
with the statue of Daniel Webster in Central Park. Webster was the most famous orator of a great
oratorical age, the man who even faced off against Satan himself in Stephen
Vincent Benét’s “The Devil and Daniel
Webster.” The statue shows Webster,
formally dressed, his right hand in his jacket, high above the ground on a tall
plinth, “Liberty and Union, One and Inseparable” engraved at the base. Webster is remote and timeless. Put a toga on him, and he could easily be in
the Roman Senate. Your task is only to
admire him. He will speak for you. But Rockwell’s imagery is more potent. In America, any person, of any standing, may
speak and be heard, and be treated with respect, even if he speaks alone.
No doubt, Chief Justice John
Roberts, in his plurality opinion in McCutcheon et al. v. Federal Election Commission, was inspired by Rockwell’s vision of the common man speaking his peace,
free from the enveloping tendrils of an oppressive government. McCutcheon is the second
leg (after Citizen’s
United) in the Court’s conservative
wing’s relay race to place money, legally, at the highest rung of political
speech. If free speech is a good thing
(and we all agree with that) and even more free speech is better, so, it
logically follows that the more money that is spent in politics, the more free
our speech really is. Giant campaign
contributions from the well-heeled looking for political influence should be
seen not as corrosive, but rather as higher acts of patriotism and fealty to
the original intent of the Founders. Given
the sound of war whoops from the GOP (the “et al.” in “McCutcheon et al.”) happy days are really here again.
If the reader detects a certain
level of cynicism in the above, it is (somewhat) unintentional. I believe that there is clear majority on
this Court that is quite conservative, with Justice Kennedy sometimes taking a
middle road. That does not mean that I
believe that Justice Roberts is a reflexive partisan who puts his thumb on the
scale so as to benefit the GOP. We have to be really careful with the idea
that Supreme Court Justices rule according to their voter preferences, rather
than their ideological predilections. There is a difference, and a critical one
at that. The holding in McCutcheon, and, for that matter, in Citizens United, is fairly
straightforward, and not, per se, partisan. The gloves are off for both
sides. It’s just a question of who has
bigger fists.
In McCutcheon, four
Justices (Roberts, Kennedy, Alito and Scalia, with Thomas providing the fifth
vote) joined in an opinion that struck down limits on the total amount that an
individual could give to federal candidates, parties, and certain political committees
in an election cycle. The opinion stated
that the caps were invalid under the First Amendment because they seriously
restricted participation in the democratic process.
Roberts
expressed solicitude for the poor billionaires who’s speech had been so
impeded. He allowed that those of us who
admire the Rolls Royce Phantom, but prioritize other, more essential spending,
might be a little aggrieved at the idea that a Koch, an Adelson, or a Soros
were free to buy politicians in bulk.
But, that is exactly why the First Amendment is so critical—it protects
unpopular speech from an oppressive majority.
I
understand the Chief Justice’s reasoning, and I am intrigued by the idea, no
matter how far-fetched, that I am part of an oppressive majority. If he has simply stopped there, I would have
seen McCutcheon in the same vein as I saw Citizens United—unpleasant but possibly
right on the law. But Roberts,
in needing to further eviscerate both Congressional action and the Court’s own
decision in Buckley vs. Valero, went a
step too far. The original campaign
finance rules, and Buckley, were
about corruption. In plain language, the
Congress and the Supreme Court recognized that giant sums of cash bought access
and favorable legislation. The Chief
Justice expressly rejected this, undercutting the Buckley rationale by saying aggregate caps do not further the
government’s interest in preventing quid pro quo corruption or the appearance
of such corruption.
I
have to say that portion of the ruling is ludicrous. The idea that money doesn’t buy access, that
money doesn’t buy Ambassadorships, and no-bid contracts, and favorable
legislation, and tax preferences is so far-fetched as to shock the
conscience. Roberts himself admits that
“[t]he line between quid pro quo corruption and general influence may
seem vague at times.” But, the “distinction must be respected in order to
safeguard basic First Amendment rights.”
If
there is one truly pernicious aspect of McCutcheon
that has the most lasting impact, it will be that. Who can truly say what is quid pro quo and
what is constituent service? When the
Republican-controlled government of Wisconsin passed a bill that gave the
mining company Gogebic Taconite (GTac)
to right to strip mine and dump tailings in the most sensitive watershed in the
state, while at the same time freeing them from environmental impact hearings
and absolving them from paying most taxes, was that a “quid pro quo?” Or was it just a group of Republicans
philosophically friendly to business and hostile to the environment? And was GTac’s outspending of their opponents
by a reported 600-1 (not a typo) just another pat on the back for an ideology
well thought out?
We
all know the truth. Money corrupts, and
big money corrupts even more. It doesn't
matter who is giving or getting. One of the most interesting, and surprising, comments
I read was from a big Republican donor who didn’t want to be identified. He was unhappy. He can no longer tell all the askers with outstretched palms that he’s
capped out. McCutcheon just raised the price for
“general influence.”
The
gates to the sewer were opened wider last week.
Somehow,
I don’t see Norman Rockwell approving.
Michael
Liss (Moderate Moderator)
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