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Wednesday, May 23, 2018
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Tom Jackson Columns

The Right Stuff: Freeing the First Amendment, one shackle at a time

Tom Jackson’s conservative opinion column is published each Sunday. The Right Stuff blog is updated throughout the week at tbo.com/tomjackson/

Politics, rude, rollicking and messy by nature, is likely to get even more so in the aftermath of the U.S. Supreme Court’s decision this week that eliminates caps on the aggregate amount of money individuals can donate to candidates and political parties. I know, hell, hand basket, etc. Easy there.

The ruling also left in place (over Justice Clarence Thomas’ energetic dissent) perfectly arbitrary limits on how much candidates for federal office can accept from each donor, $2,600 per race; $5,200 per year. One shackle at a time. Rescuing the First Amendment from imprisonment by a jealous political class egged on by a mass-media monopoly is, like defusing an intricately wired bomb or performing neurosurgery, a delicate task.

Still, the eventual outcome — a full unraveling of Washington’s decades-long attack on political speech — seems inevitable.

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Because one is required to support dissemination of the other, the court long ago equated money with speech. That being the case, it was perfectly logical, as well as philosophically appropriate, for the five justices forming the majority in McCutcheon v. Federal Election Commission to rule as they did.

Many legal scholars see McCutcheon as a natural extension of the court’s 2010 ruling in the Citizens United case, which scuttled a prohibition against corporations spending money on campaigns after an FEC statute blocked distribution of a documentary about Hillary Clinton. Those who thought Citizens United was properly decided also approve of the McCutcheon verdict, and those who didn’t like the first really, really don’t like the latter.

The way forward for those horrified by McCutcheon is clear: Draft an amendment to the Constitution. Until that’s done and ratified, the glorious, re-emerging original stands with its unequivocal command: “Congress shall make no law” that compromises the people’s rights to publish, speak, assemble and petition. And within those rights, they should be able to bring whatever qualities, talents, know-how or material well-being they have to the task.

“The First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association,” Chief Justice John Roberts wrote for the majority. “When an individual contributes money to a candidate, he exercises both of those rights.” A Wall Street Journal editorial elucidates: “Restricting how many candidates an individual can support infringes on those rights.” Obviously.

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Those fretting over the coming cacophony of campaign ads should locate the mute button on their remote controls and learn its application. The rest of us will focus on more important things, such as the irrationality of assuming the threshold of corruption lies between contributions to the 18th candidate — allowed by old FEC statute — and the 19th.

Moreover, it strikes me that having the lid lifted from contributions to political parties could actually boost competitiveness. Before, citing scarce resources, parties routinely took a pass on helping their candidates in districts or states where the likelihood of winning was remote. The new rules do not guarantee the bulk of all this new money won’t still go to battleground elections, but both sides probably will be able to take a harder look at races where a well-timed jolt of party cash could make competitive contests that previously would have been sacrificed to harsh financial reality.

Anyone who thinks that’s an unfortunate development didn’t understand the First Amendment’s establishment-busting power, invested in individuals, in the first place. This would include Justice Stephen Breyer who, writing the dissent, suggested donation limits served “the public’s interest in preserving a democratic order in which collective speech matters.” Collective speech? Let’s hope we never tumble down that Orwellian rabbit hole.

No. Washington should no more be allowed to limit what individuals sink into maximizing political speech than it should be able to regulate the media’s reporting of and opining on matters political and governmental.

Meanwhile, many who draw paychecks from the practice of journalism complain about the political spending of freewheeling individuals and never notice the irony. Luckily for them, the First Amendment puts no limits on willful obtuseness, either.

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