The dark cloud behind the silver lining in the U.S. Supreme Court’s latest campaign finance ruling

Yes, the U.S. Supreme Court ruled correctly in striking down a law limiting the total amount of money a campaign donor can contribute to candidates. But Alex Adrianson at the Heritage Foundation’s “Insider Online” blog takes note of one analysis that highlights the disturbing views held by four justices who dissented in the case.

The five-justice majority in McCutcheon v. Federal Election Commission ruled that the aggregate limits bore little relation to the legitimate government interest of preventing quid pro quo corruption. Trevor Burrus explains:

Given that every one of [McCutcheon’s] contributions was below the individual limit, was [the aggregate limit] preventing any quid pro quo corruption to allow him to give $1,776 to eight more candidates, but not nine, 12, or 200? The obvious answer to that question seems to be “no,” and it is the answer that five of the nine justices gave, thus striking down the limit.

Burrus points out that the remarkable thing about the decision wasn’t that five justices ruled in favor of more free speech, but rather that the four justices in the minority now believe the First Amendment empowers the government to police the marketplace of ideas:

Writing in dissent, Justice Stephen Breyer, joined by Justices Kagan, Sotomayor, and Ginsburg, argued that a new version of “corruption,” that is, the corruption of the marketplace of ideas, should become part of the Court’s jurisprudence. In that version of corruption, the government is affirmatively in charge of making sure “a few large donations” don’t “drown out the voice of the many.”

While this may sound initially attractive, a moment’s thought makes it clear that this view is untenable. Elected officials cannot be trusted to fairly regulate the process upon which their jobs depend and the government could have no meaningful principle to determine how loud someone should be allowed to speak or even what the “voice of the many” is saying. As Chief Justice Roberts wrote, “the degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process.”

The frightening thing about McCutcheon is that a near-majority of the Court holds this view that turns the First Amendment on its head. If we don’t limit the doctrine of corruption to actual candidates, if we empower the government to regulate a “corrupt” marketplace of ideas, then there is no reason to limit it to elections.

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