Greensburg Daily News, Greensburg, IN

Columns

July 10, 2014

Polarization, part III: decisions on 'political speech'

Editor’s note: This is the third and last in a series on political polarization.

Do the recent Supreme Court decisions in Citizens’ United and McCutcheon, both regarding campaign-finance reform, contribute to political polarization? Or do they enhance the opportunity for greater political speech and thus encourage greater civic engagement?

Citizens United was, and still is, a highly controversial decision put forth by the Court in June 2010. Essentially, the Court ruled unconstitutional portions of the McCain-Feingold law that prevented corporations (and in effect labor unions, too) from spending money to broadcast what is termed “electioneering communications.”

McCain-Feingold, also known as the Bi-Partisan Campaign Reform Act of 2002, placed restrictions on when and how corporations could spend money advocating for the election or defeat of a candidate, requiring full disclosure of donors.

With minimal exceptions, the Court ruled that corporations and union have the First Amendment right to free speech just as any person does, and this right includes the ability to spend unlimited funds.

In McCutcheon (2014), the Court ruled that all “aggregate limits” related to campaign-finance spending and contributions were unconstitutional, thus allowing individuals to contribute as much as they want to candidates for federal office, political parties and even political-action committees, or PACS.

In the majority opinion, Chief Justice John Roberts argued that “there is no right more basic . . . than the right to participate in electing our political leaders.” This includes, the majority said, making campaign contributions. Only quid pro quo corruption, e.g., bribery, can be legislated against. Giving money in order to “gain access to” or “influence” elected officials does not constitute corruption.

Dissent in both cases was strong. Justice Breyer in McCutcheon stated unequivocally that the decision “eviscerates our nation’s campaign-finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy . . .” The ability to give unlimited amount of money, he contended, isolates the vast majority of Americans from participating in the American democratic process.

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