Charles C.W. Cooke
April 3, 2014
The Court vindicates freedom of speech.
Providing another dramatic example of its readiness to protect freedom of speech, the Roberts Court yesterday struck down a campaign-finance regulation that limited the total amount that an individual may donate to political candidates, thereby nixing a rule that had been in effect for more than 40 years. The plaintiff in the case was one Shaun McCutcheon, a conservative businessman from Alabama who argued that limits on his aggregate spending represented a violation of his constitutional right to free expression. The court agreed, 5–4.
If the Citizens United case serves as any indication, the word “McCutcheon” will soon be hurled liberally around the political scene by critics and champions alike — a three-syllable shortcut for all that is held to sustain or to ail the republic. Such, it seems, is the questionable fate of those who seek to provoke legal precedent. But, in a more just world, another name would share the burden: that of Mitch McConnell, the minority leader in the U.S. Senate and a tireless crusader against laws that would restrict what citizens may do with their property and energy come election time.
“This is an issue that I’ve been involved in for more than 25 years,” McConnell tells me. “I was a part-time teacher at the time that the Buckley v. Valeo case came down, so I initially started studying it from an academic point of view, and then later, in politics, I saw the practical implications of the Congress trying to micromanage political speech.”
Since he was first elected in 1986, McConnell has participated in 20 filibusters against campaign-finance limitations. Most famous, perhaps, was his effort in September 1994 to block a bill that would have effectively facilitated a federal takeover of the election system. “The Congress, then controlled by the Democrats, with President Clinton in the White House, tried to push through public funding and spending limits for congressional campaigns,” McConnell recalls. “That was just twenty years ago. I led the all-night filibuster against that, which succeeded. But that’s how close we were to a total government takeover of congressional races.”
Today, things are looking up for the First Amendment. Just ten years ago, though, the outlook was grim. In 2002, John McCain and Russ Feingold introduced the Bipartisan Campaign Finance Reform Act — a comprehensive bill that established new limits on the amount that individuals were allowed to contribute to candidates and to electioneers, restricted the political involvement of corporations, and limited the role of “soft money” in the system. The bill quickly made its way through the Democratic Senate (60–40), the Republican House (240–189), and past the signature of a Republican president, prompting observers to conclude that restrictions on campaign funding were now a bipartisan preference. McConnell, who remained a severe critic, nevertheless recognized the scale of his defeat. The measure’s being “passed in a Republican Congress and signed by a Republican president” represented “a huge disappointment,” he tells me. “And as if that wasn’t enough,” he adds with a dry laugh, “the name of the case upholding it bears my name!”
That case, McConnell v. FEC, was decided by five votes to four, with Justices Breyer, Stevens, O’Connor, Souter, and Ginsburg concluding that the restrictions imposed by the law did not violate the protections inherent in the First Amendment. The opinions were unusually fractious. Antonin Scalia submitted his own dissent purely in order to make it clear how “extraordinarily important” he considered the issue to be, while Clarence Thomas contended acidly that the Court had indulged the “most significant abridgment of the freedoms of speech and association since the Civil War.”
A decade later, the tables have been turned. Now, the law is in tatters, as are others that complemented it. What has changed? “The big breakthrough at the Supreme Court on this particular issue was when Sam Alito replaced Sandra Day O’Connor,” McConnell explains. “Now we’ve had a series of decisions that I think are consistent with what the Founders surely would have meant when they were talking about freedom of speech. You’ve got five pretty solid defenders of robust political speech: You saw it in Citizens United, you saw it again today. What the court said this morning was that the Congress can’t micromanage how many candidates or parties you choose to support. This is very sound thinking in my view. We’ve now got a Court that fully respects the possibility of everybody participating in the political discourse.” McConnell disagrees vehemently with those who claim that the courts have sided with the powerful over the weak. “If you go back to Citizens United,” he argues, “it had always been possible for multi-millionaires to spend as much as they wanted to — backing causes, supporting candidates, whatever they wanted to do — and the Court basically said that there is no special carve-out for corporations that own newspapers. Today, they said that it’s not the Congress’s business to tell an individual how many party committees or candidates that he or she chooses to support.”
Since Alito and Roberts were added to the Court, McConnell has been involved in six attempts to dismantle campaign regulations. Six times he has prevailed. He filed amicus briefs in the cases of Randall v. Sorrell, Wisconsin Right to Life v. FEC, Citizens United v. FEC, McComish v. Bennett, and American Tradition Partnership, Inc. v. Bullock — all of which limited the state’s role in regulating campaign finances. In the McCutcheon case, he went one stage further, not only submitting a brief but also persuading the justices to allow his lawyer, Bobby Burchfield, to participate in oral arguments — an unusual request for the Court to grant, and a concession that demonstrates how interested in this subject the justices have been.