The intersection of the First Amendment and campaign finance can seem like a murky crossroads. Good news: Help is here to understand what the Supreme Court is up to at this critical legal juncture.
On Wednesday, a divided high court struck down overall campaign contribution limits in a case called McCutcheon v. FEC, the most important political money ruling since the justices’ 2010 decision in Citizens United. A quick tally shows that this is the sixth time the court under Chief Justice John Roberts has poked holes in legislation designed to stem the flow of money into the election system.
What is the conservative Roberts majority up to? How far do they intend to go?
The best, most concise explanation I’ve heard came from Michael Waldman, the president of the Brennan Center for Justice at NYU Law School. “The court narrowed the conception of corruption to an infinitesimally small concept. It needs to be like American Hustle or Abscam … handing a suitcase full of money to a member of Congress and getting an explicit agreement to do something,” Waldman said on PBS NewsHour. “Other than that, Chief Justice Roberts said trying to use your money to get influence with members of Congress is the heart of the First Amendment.”
There you have it. Roberts and his four ideological compadres see campaign spending and contributions as a form of expression protected by the First Amendment. One may disagree with that concept, but it is now enshrined in the constitutional law of the land.
The only limiting principle Roberts & Co. seem to perceive to the First Amendment’s reach in this regard is quid pro quo corruption: when money buys a specific favor from a particular politician. Then cash, checks, and wire transfers cease to be simply political expression and morph into bribery—the roguish influence peddling at the heart of the highly entertaining American Hustle and the real-life Abscam sting on which the movie was loosely based.
Congrats to Waldman for providing such a vivid aid for comprehending what’s going on in Washington. Condolences to him, the Brennan Center, and other liberal fans of campaign finance restrictions for their losing streak at the Supreme Court, one which will likely continue as long as Chief Justice Roberts commands a majority.