Over the last several years the Supreme Court of the United States has had an
opportunity to rule on several cases that have changed the landscape of Federal elections
nationwide.
Without going into the specifics of each case, the essence of the Court’s rulings have
been that corporations and labor unions are people; that people have the right to donate to the party and to the candidates of their choice; and that donating money to a campaign or a
candidate is an exercise of Freedom of Speech and therefore, the amount should not be
curtailed.
There still are some contribution limits and there are still some reigns on the
unfettered right to donate as much money as one wishes to a specific campaign. However,
given the Pacs and the Superpacs along with what is called soft money, there really are no
limitations on how much a person, corporation or union can donate. Some of it may be by
direct donation, and others may have to be by donation to the political party as a whole or to
those Pacs.
Yet the Supreme Court’s pronouncements on these subjects are still disturbing. As
everyone who has read this column knows, we are certainly advocates of the First
Amendment. We might take issue with the Supreme Court equating donating of money and
political speech. However, there is an argument to be made that donating money is political
speech as it represents somebody’s desire and volume of how they wish to express
themselves about a specific candidate. Of course, the argument could be made that the
donation of money to a candidate is not speech but is merely an action.
Again, we will not quibble with the Supreme Court’s ruling that donating of money
to a candidate is political speech. What we will address and what we do have problems with
is that the Supreme Court seems to have no problem with the wealthiest of us being able to
speak louder than the poorest of us. The well-heeled being able to donate large sums of
money while the less fortunate may not even have the ability to donate any to a campaign.
What we have a problem with is that the Supreme Court’s attitude and rulings now require
money to be able to speak, while that has never been a requirement of the democracy in this
country.
Certainly, it would be argued that everyone can speak and those with money just have
the right and the ability to back their candidate with funds. Certainly, it can be argued that everyone can speak with the same volume but the wealthy will have the ability to have that speech amplified by the amount of money that they have and their access.
Many commentators have given their opinion as to the Supreme Court’s rulings
allowing the wealthiest of us to have unfettered donations to the candidates of their choice
and therefore, have an undue influence on the elections. We have not heard any analysis of
the situation in the manner that we intend to herein.
The Supreme Court, through cases such as the City of Renton v. Playtime Theaters,
and United States v. O’Brien, have instituted rules and tests whereby First Amendment
expression can be silenced or curtailed to certain times, places and manners. The essence of
these tests revolve around what has been called “adverse secondary effects”. Under this
guise, the Supreme Court and the lower courts have allowed adult entertainment which does
have Constitutionally protected expression, to be relegated to certain areas of the town, to be required to be certain distances away from schools and churches, etc.; to have their hours of operation curtailed and even have what is allowed to be disseminated inside restricted. The justification is based upon the belief that these types of establishments cause blight,
downgrading of property, increase in crime, etc. Therefore, regulating these establishments
as noted above is not a curtailment of First Amendment Freedoms, but rather an answer to
a problem that they cause.
In that same vein, the Supreme Court of the United States, while concluding that
speech is implicated in donations to political candidates, could have easily ruled that by
allowing the wealthiest few to donate exorbitant sums of money to a specific campaign, that
those people in effect could cause or change the outcome of a specific election or elections.
The Supreme Court could have easily stated that donations to political campaigns could be
capped at a certain level and that for all elections a person may only donate a certain amount
by citing to the adverse secondary effect that allowing this type of unfettered speech in the
form of donations is detrimental to democracy. Which is the most important thing that this
country stands for.
Although the Supreme Court is supposed to be party-less and only issue oriented, it
is not surprising that the 5/4 decisions that have allowed for this state of unfettered politicaldonations by the wealthiest, all the Justices appointed by Republican Presidents voted infavor, while the four Justices appointed by the Democrats voted against. It is telling that these decisions have been favored by the Republican Party, who stand the most to gain from the wealthiest of the wealthy, having unlimited say in our political process.
The only hope for fair elections under the current format is that there is a chance that
so much money now will be donated to all parties and to all candidates in all elections, that
the saturation point will be reached. This is when it does not matter how many more ads for
a specific candidate you see or hear, because it stops to register since you have heard so many from that candidate. Conversely, you’ve also heard so many from the opposition candidate
that it doesn’t matter how many that candidate has put on the airwaves. In essence what
happens is you hear enough ads from both sides, that one having more ads does not matter
and all the ads seem to cancel each other out.
