The First Amendment and Campaign Finance Laws

One of the first cases heard by the Supreme Court this session was McCutcheon v. FEC, a case which deals with campaign finance laws. The main question is whether campaign contributions are a form of speech, and whether it is legitimate for Congress (through the Federal Election Commission) to place limits on the total amount that an individual can contribute in any election year.

This case raises two important issues regarding First Amendment rights, and by implication all constitutional rights.

First, all rights, even constitutional rights, are not absolute. There are many, many limits on our right to free speech. This is true, even though the First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” There are literally dozens (if not hundreds or thousands) of laws passed by the U.S. Congress, and by the states, that restrict or limit the ability to speak freely. Copyright laws limit speech, as do defamation laws (slander and libel), obscenity laws and broadcast decency laws. Localities have what are called “time, place, and manner” restrictions on speech. These allow a city to prevent a person from driving around in a sound truck late at night blasting their message. A city also has the ability to limit and control parades, and limit demonstrations to certain locations. All of these laws, and many others, limit the right to speak freely, and seem to directly in the face of the explicit language of the First Amendment.

The reason that these laws can exist – as most lawyers know but most political commentators ignore – is that all rights, even enshrined constitutional rights, are subject to reasonable limitations. Otherwise there would be chaos. Imagine if your neighbor decided that he wanted to let his son’s band practice at full volume on the front lawn every night. There has to be some limit on rights, and the question is balance. For restrictions on First Amendment rights the balance is if there a reasonable opportunity to express an opinion and whether the restrictions are content neutral and not unreasonably burdensome?

This same balance should apply in deciding whether campaign contributions can be limited. The question in this case is whether there is a legitimate social interest in the restrictions on money in politics, and whether the ‘speaker’ (in this case the donor) has a reasonable opportunity to express an opinion and if the particular restriction is burdensome.

I honestly don’t know the answer to that, which brings me to my second point:

Just because something is allowed as a “constitutional” right doesn’t mean that it is automatically good. Even important rights can produce negative consequences. We know this from the First Amendment. We know that some speech, or some expression, can be harmful. That’s why we allow limits on obscenity.

The free-for-all of American culture is the byproduct of the First Amendment. And there is no doubt that vast segments of our culture are a squalid wasteland. The right may be valid, but that doesn’t mean that every by-product is inherently good. And so, in this case, the First Amendment may protect the right to give freely to political candidates, but that doesn’t mean the end result will be good, just that it is constitutional.
Finally let me note that this idea applies to all rights. All rights, even constitutional rights, are subject to reasonable restrictions. And just because something is allowed by the Constitution doesn’t mean that it is socially beneficial.

Author: Mike

I am a patent attorney in Lexington, Kentucky. My law firm web site is I ran for State Representative in 2010 and lost in the primary. Many of these posts are based on writing that I did for that election. Rather than delete it all, I decided to dump it onto the internet.

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