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McCutcheon Campaign Finance Decision: Reaction Roundup

By William Peacock, Esq. on April 07, 2014 9:05 AM

The impact of last week's decision in McCutcheon v. FEC is obvious: There will be a lot more money injected into politics. Those who can afford to donate will, which realistically means that the rich will have an even louder voice.

Chief Justice John Roberts didn't seem particularly concerned about the impact of his controlling plurality opinion, noting that Congress may not "restrict the political participation of some in order to enhance the relative influence of others," while Justice Stephen Breyer predicted doom and gloom, stating that the decision "eviscerates our nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve."

Outside the bench, the reactions are equally (yet predictably) split:

Republicans: Most Love It

We all know the general perception here: Republicans favor lower taxes, small government, and therefore, the rich. The rich, who can afford to go beyond the now-invalidated aggregate contribution limits, are therefore more likely to favor Republicans.

House Speaker John Boeher (R-Ohio) summed up his take, saying "freedom of speech is being upheld," reports Politico.

"You all have the freedom to write what you want to write, donors ought to have the freedom to give what they want to give," Boehner told reporters.

Of course, not all Republicans praised the decision. Sen. John McCain, one of the architects of campaign finance reform and restrictions, expressed disappointment in a released statement and predicted that "there will be scandals involving corrupt public officials and unlimited, anonymous campaign contributions that will force the system to be reformed once again."

Democrats: Hate It

Politico has a roundup of Democrats' reactions, but suffice it to say, they aren't pleased. Reactions included renewed discussion of a constitutional amendment that would empower Congress to regulate campaign finances, a law that would require disclosure of contributions of more than $1,000 to the Federal Election Commission within 48 hours, and another law that vaguely promised to "amplify small-dollar donations to congressional candidates."

Are We Looking at This From the Wrong Angle?

Understandably, many are focused on the likely ends or consequences of the Supreme Court's ruling. Republicans are happy about more donations, Democrats are worried about rich folks buying (even more) influence, and big donors and lobbyists are mad that their favorite excuse ("I've already contributed the maximum") is no longer valid -- they're worried about the inevitable shakedown.

But what about the means to get there?

Floyd Abrams, the legendary First Amendment attorney, was more disturbed by Justice Breyer's dissent. Breyer argued that the First Amendment was also about "preserving democratic order in which collective speech matters." In essence, he's fine with restricting the speech of some in order to allow the other voices to be heard.

Abrams makes a compelling argument on SCOTUSblog that this view is frightening from a First Amendment perspective, as "only one side [of the Court] believes that the best protection for democracy is more rather than less speech." He cites two cases in which speech was unconstitutionally restricted or compelled in order to promote the views of those who would otherwise not be heard, both of which would be untenable had Breyer's dissenting viewpoint prevailed.

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