Strike Down All Contribution Limits

This article appeared on The New York Times (Online) on October 7, 2013.
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The First Amendment protects political speech and the use of resources (printing presses, the Internet, money) to facilitate that speech. Yet when someone wants to engage in the most obvious kind of political speech — supporting election campaigns — the government restricts this important constitutional right. These limits on political donations aren’t supported by any compelling governmental interest.

In the seminal 1976 case of Buckley v. Valeo, the Supreme Court held that such limits are justified when tied to preventing quid pro quo corruption or the appearance thereof. But the court also decided that restrictions on campaign spending put a heavier burden on political expression, one which the government couldn’t justify. One of the plaintiffs’ arguments in McCutcheon v. Federal Elections Commission is that contribution limits are simultaneously a limit on expenditures — a position that the Cato Institute supports in our amicus brief.

We argue that Buckley’s distinction between contributions and expenditures is problematic. Not only does it allow infringements on the freedom of speech, but it has led to an unbalanced and unworkable campaign finance system.

Various justices over the years have engaged this point. Justice Clarence Thomas in particular has assailed the distinction, pointing out that both contributions and expenditures implicate First Amendment values because they both support political debate. Moreover, candidates spend an inordinate amount of time fundraising instead of legislating because they face an unlimited demand for campaign funds but a tapered supply. At the same time, money has been pushed away from politically accountable parties and candidates and toward unelected advocacy groups, leading to a warping in political competition.

In a free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. The Supreme Court should strike down contribution limits and give those who contribute money to candidates and parties as much freedom as those who spend money independently to promote campaigns and causes.

Ilya Shapiro

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor‐​in‐​chief of the Cato Supreme Court Review.