Freedom of speech must not be limited

Published 9:58 pm Friday, October 11, 2013

The basic principle is simple. The freedom of speech is good. With very few exceptions, policies that make speech more free are therefore good.

That’s not to say we’ll always agree with what’s being said. The freedom of speech applies to nothing, if it doesn’t apply to speech that others might disagree with.

But the principle is sound. We regard the freedom of speech as a bedrock of our democracy.

Another longstanding principle is that in some cases, money is speech. That’s particularly true in politics. When we give money to a candidate or to a cause, we are making a statement. When government tells us we can’t support a candidate or a cause, it is limiting our freedom of expression.

That’s why a case heard by the U.S. Supreme Court on Tuesday is vitally important. Like the Citizens United case of last term, this will no doubt be scrutinized by the left (and some on the right), and if it’s not decided the way they think it should be, it will be vilified as Citizens United is.

But McCutcheon v. Federal Elections Commission is an important case, because it’s another chance for the Supreme Court to lift arbitrary restrictions on our freedoms.

“The First Amendment protects political speech and the use of resources (printing presses, the Internet, money) to facilitate that speech,” says Ilya Shapiro of the Cato Institute. “Yet when someone wants to engage in the most obvious kind of political speech — supporting election campaigns — the government restricts this important constitutional right. These limits on political donations aren’t supported by any compelling governmental interest.”

In McCutcheon, the plaintiff says rules that limit how many people (or campaigns) an individual can contribute to are not justified.

He’s right. The prevailing presumption on Washington is that money in politics is bad. That may or may not be true; it’s certainly true no one on the left is out there turning down contributions.

But the truth is that money is a part of politics, and more importantly, it’s a part of our freedom of expression. The presumption should always be against restrictions, rather than in favor of them.

The aggregate limits imposed by the FEC — the limits being challenged by McCutcheon — are certainly not succeeding in keeping money out of politics, or preventing big contributions. In fact, campaign finance rules as a whole do little but restrict some people while enabling others.

The fear here, of course, is that money is a corrupting influence in politics (as if politics needs the help). Again, that may or may not be true. What’s certainly true is that allowing money from some people, while barring it from others, is the very definition of corruption. That’s privilege, or “private law,” which applies to some but not to others.

Some want to make the process “fair” by allowing only publicly funded elections. That opens up a whole new discussion about freedom and corruption.

But for now, we must default to freedom. The Court should throw out the FEC rules on aggregate limits.