Discussions about the role of money in politics are as old as politics itself. Signs, flyers, television ads, transportation, political consultants, physical facilities, and the countless other resources that are necessary to run a campaign are expensive. Where should the money to cover those expenditures come from? How should it be allocated? And that’s to say nothing of quid pro quo transactions. Just ask George Washington, who spent $195 on alcohol for prospective voters during his 1757 campaign for a seat in the Virginia House of Burgesses (Washington won, but the practice was quickly outlawed by the legislature).
Political contributions are generally broken down into two categories: hard money and soft money. Hard money describes contributions that are regulated by the FEC, such as contributions directly to candidates’ campaigns and traditional PACs, while soft money describes unregulated contributions, such as those to super PACs and some contributions to political parties.
Discussions about campaign finance often come down to a single question: is money speech? Of course, money is not literally speech. But spending money facilitates the expression of speech, just like a car facilitates someone’s attendance of a rally or a computer facilitates the work of the press. If you limit the ability of an individual or a group to spend money on political speech, you are limiting their ability to speak out politically. On the other hand, some people have more money than others, and corporations or unions tend to have a lot of money.
The Supreme Court has spoken on this issue. In Citizens United v. FEC (2010), the Court determined that the government cannot limit the ability of a corporation or labor union to express itself politically, as long as that expression is not directly linked to a specific candidate (they can donate soft money, but not hard money). This means that corporations and unions can engage in electioneering, which is advertising for or against social, economic, or political issues without mentioning a specific candidate. Even though it doesn’t advocate for or against a specific candidate, electioneering can still influence election results.
The worry here, and the reason many continue to push for campaign finance reform, is that the deep pockets of large corporations and unions grant them a louder voice than that of the average voter. Corporations are not required to disclose soft money contributions, so it is hard to quantify this claim, but it deserves consideration nonetheless.
The problem with placing financial restrictions on the ability of organizations to express political opinions, however, is deciding which organizations to restrict. Perhaps a majority of Americans wouldn’t have qualms about restricting rights of expression for ExxonMobil, but what about the Wall Street Journal? Or Fox News? Or CNN? An attempt by the government to restrict a news media organization would be almost universally opposed. How do we decide who deserves protection under the First Amendment and who doesn’t?
In response to the idea that some deserve different First Amendment protections than others, late Justice Antonin Scalia said:
It is passing strange to interpret the phrase “the freedom of speech, or of the press” to mean, not everyone’s right to speak or publish, but rather everyone’s right to speak or the institutional press’s right to publish. No one thought that is what it meant.
In other words, First Amendment protections are to be extended to all, not just some. Yes, the the idea of corporations and unions with too loud of voices is worrisome. More worrisome, however, is that the attempt at silencing a few voices would lead to the silencing of too many. A productive democratic republic relies on the voices of all. As such, all of those voices should be protected.
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