by Jack Lee
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Yesterday, Thursday the 21st day of January, the United States Supreme Court in a 5/4 decision struck down a campaign law that has stood for 76 years. Whether you were for or against this decision one thing remains true, it was monumental and it will have a dramatic effect on how all future elections are conducted.
Let’s take a look at what happened and review some of the arguments pro and con, and then you decide if this was good or bad for America. ( As always, your comments are welcomed and will be posted as quickly as we can. )
The Supreme Court said basically this to the people: The First Amendment does not permit government to decide the “proper” quantity of political speech. And on the face of it this seems like rock solid logic. So why then were their four learned justices that took strong exception to the ruling? Obviously, this was a difficult case and right or wrong may have yielded to political bias, but for now lets not go there.
Corporations, businesses, unions and every entity that is not a non-profit may now contribute as much as they wish to support or oppose a candidate or legislation. Such entities pay taxes and it’s therefore defensible they should have some say in elections. However, many illegal aliens also pay taxes and so do foreign entities that import goods, shall this theory extend to them as well?
The 1st Amendment of the Constitution provides protection for free speech, although it does not specifically define what speech ought to be free. Criminal law defines that part, so we know there are limits to free speech. Criminal law limited free speech under the Harm Principle.
John Stuart Mill, an English philosopher, political theorist, and a member of Parliament was a Classical liberal thinker of the 19th century whose works on liberty justified freedom of the individual in opposition to unlimited state control. Mill makes a strong case when he tells us that any doctrine should be allowed no matter how immoral or absurd it may seem to everyone else.
“If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”
Such liberty should exist with every subject matter so that we have “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological”
Then Mill suggests that we need some rules of conduct to regulate the actions of members of a political community. The limitation he places on free expression is “one very simple principle,” now usually referred to as the Harm Principle, which states that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. This why you can’t yell “Fire” in a crowded building or slander someone.
If you look closely you will see that all previous reforms to campaign finance laws are founded on the Harm Principle. In the case of John McCain (R-Ariz.) and Russ Feingold (D-Wis.), they recognized the wisdom of existing laws preventing an entity such as a union or a corporation or even an individual — from making large contributions to a candidate’s coffers that would have an undue influence on outcome. The logic went like this, when candidates raise campaign money from thousands of regular voters rather than from a few special-interest sources, there’s less chance that an election can be unduly influenced in such a way that it causes harm to an otherwise fair election.
McCain-Feingold sought to close a loophole: Large contributions from single entities that could not be given legally to candidates were instead given to political parties with instructions to use it in a specific way to influence the election outcome. This was called a “soft money” contribution and it was more often used during the final weeks of a campaign for ads that purported to discuss issues rather than promote personalities, but that in fact attacked opposition candidates. McCain-Feingold limited such end-of-the-race expenditures. They were trying to keep elections in the hands of the many voters rather the few special interests and in doing so, prevent harm.
The argument against McCain-Feingold is the same argument that swayed the Supreme Court. This was seen as an impediment to free speech and five Justices felt government should not be allowed to control, contain or impede political speech as that would be a restriction on free speech. Their decision was in keeping with the 1975 Supreme Court decision, Buckley verses Valeo. In that decision the Court concluded ‘the First Amendment simply cannot tolerate [the] restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy’ whether the source of his money is personal wealth or funds raised from legal contributions.”
The Supreme Court may have ignored a crucial element and that is, there’s a profound difference between human beings with an inalienable right to self-expression and what we may possess in terms of money or other forms of property. Democracy is simply not sustainable in any society that confuses the second with the first. Power will always drift to those with the money and this brings us back to John Stuart Mills Harm Principle.
As a West Virginia lawmaker recently said, my district isn’t that large and its represented by just one television station. It’s possible that a corporation could spend two million dollars and buy up all the time for political ads. If that happened I would have no way to counter it.
“Money can purchase one medium for ideas, named in the U. S. Constitution as speech. In other words, money can turn up the volume. It can take a small idea and, for good or bad, magnify it in the public eye. It can do so through genuine outreach or perverse spin, authentic promulgation or sleazy publicity. Either way, it can blast out an idea so loudly and persistently that it drowns out all other voices.”
The test of right or wrong as it pertains to money and free speech ultimately rests in the answers to the following questions:
Is it possible that money can purchase so much advertising as to drown out ideas and overwhelm the oppositions ability to respond effectively? Does the raising large amounts of money from a few sources create an undue influence on a candidate? Do we have evidence that large money contributions have actually influenced an election outcome? Has large money contributions been linked to legislation that favored only a few and if this has happened, how often?
If any of these questions were answered in the affirmative, has it had a significant, continuous and harmful effect upon the free flow of ideas, speech and the citizen’s right to participate fairly in our representative government as the Constitution intended? You decide.