Court Rules that Cheap Speech is Better than Free Speech

Lucas Morel

January 1, 2000

Speaking for the majority, Justice David Souter argued that Missouri need not have shown proof that corruption of the political process had actually occurred or that public “perception of corruption” was pervasive before the legislature enacted campaign finance reform. In McCain-like fashion, Souter concluded that “there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters.”

In his dissent, Justice Thomas called the Court’s decision a ratification of Missouri’s “sweeping repression of political expression.” No fan of the Buckley decision, Thomas would overrule Buckley and apply a “strict scrutiny” test that would find Missouri’s contribution limits “patently unconstitutional” on two counts.

First, by permitting “vague and unenumerated harms to suffice as a compelling reason for the government to smother political speech,” the Court undermined a fundamental right of citizens. Thomas believes that “free exchange” deserves the greatest protection “when it matters the most—during campaigns for elective office.” Instead of securing this core right and responsibility from government interference, the Court gave short shrift to individual freedom regarding “the proper amount and effectiveness of political advocacy.”

Second, Thomas does not see Missouri’s contribution caps as narrowly tailored to reduce political corruption. By lumping individual donors and political action committees together under the same contribution limits, the Missouri legislature “crudely tailored” its approach to campaign finance reform.
Given existing laws against bribery as well as requiring disclosure of donors who give above a certain amount, Thomas concluded that Missouri should not be free “to enact generalized laws that suppress a tremendous amount of protected speech along with the targeted corruption.”

The bottom line for Thomas, whose dissent was joined by Antonin Scalia and in a separate dissent by Anthony Kennedy, is that the Constitution does not vest state or federal government with the power to determine the “the proper amount and effectiveness of political advocacy”; that is left for the people themselves.

The First Amendment states that “Congress shall make no law … abridging the freedom of speech.” In separate opinions concurring with the majority opinion, Justices John Paul Stevens and Stephen Breyer said that money is property, not speech. And therefore money spent on speech does not deserve the same constitutional protection as speech itself.

To his credit, Stevens affirmed that the Constitution and America’s heritage “protect the individual’s interest in making decisions about the use of his or her own property.” Unfortunately, he did not explain why property rights should not be protected to the same extent as speech.

If free speech means anything, it means speech that is free from government interference—and not just outright censorship. Any government regulation that hinders the expression of political opinions, especially those critical of the powers that be, should be immediately suspect. This includes limits on contributions to candidates that make it difficult to finance a competitive campaign against incumbent officeholders.

As Justice Thomas noted, the Missouri contribution limits reduced not only campaign spending (by almost ninety percent in statewide primaries), but also the number of competitive elections. Before the caps were imposed, each of the ten statewide primaries was contested; after the caps took effect,
only one primary election was contested. Ironically, for speech to get cheaper, it had to become less free.

The freedom to discuss political issues and how government has dealt with them is a hallmark of a liberal society. But if government can determine what one is allowed to spend on political speech, it can determine what speech is allowed at all.

As long as citizens have elections to reward or punish incumbents for their votes in office, politicians will have to defend any vote that appears to be a political favor to a special interest as opposed to the common interest. This ruling by the Court further undermines the function of
elections as the principal means by which a free people ensure accountable government.

Lucas Morel teaches politics at Washington and Lee University and is an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.