The Supreme Court has ruled several times that free speech includes making political contributions.
These rulings get many people upset, mostly people without a lot of money. They believe that everybody has their own voice, but only a relative few have enough money to buy themselves a loudspeaker called television or social media or mass mailings.
One lesson from these rulings is that the U.S. Senate is naive when it accepts assurances from Court nominees that all they will do on the bench is apply the Constitution, not make law.
Last November, the Court dealt with an Alaska Republican complaint that the cap on campaign contributions to state elections was too low. In the search for a fair limit, Maine and a few other low-limit states were reviewed.
Because the Court finds that such contributions are an exercise of free speech, it accepts few limits on them just as it would accept few restrictions on spoken or written speech. A limit must be justified based on a strong possibility that large contributions would promote corruption.
The nine justices of the country’s highest court focused on just how much money would be too much. The Constitution governs free speech, including campaign giving, in each state, so the court fine tunes the amount suitable for each state.
In the Alaska case, the Court considered $400 might be too low, compared with $500 used in some Maine races. And it said the ceiling should be adjusted for inflation. Will it find the Constitution empowers it how to choose among the many inflation indexes?
The justices have no problem with ensuring on a case-by-case basis that the limit is not so low that it interferes with the full exercise of democracy. For them, one measure of defending rule by the people is how much they can spend on election campaigns. This is the justices’ view of merely “applying the Constitution.”
But this constitutional understanding raises a couple of problems.
So long as a contribution is not made directly to a campaign, but merely in support of it, the Court has practically lifted all limits. Its view is that, in spending money independently, a person’s free speech right is unlimited. Let’s not worry about corruption or buying influence.
If this logic is more generally applied, as seems quite possible, the Court could strip Alaska and Maine of any reasonable limit on state election contributions.
The Supreme Court has also been asked to review state decisions drawing congressional district or state legislature boundaries to favor a single party. One of the clearest examples came in North Carolina where the Republican leadership openly admitted designing districts to boost the GOP.
When that case came to the Court, it recognized the problem but found that the Constitution gave it no power to combat political gerrymandering by ordering fair and compact districts rather than oddly shaped districts meant to favor one party.
It perceives a difference between contributions as speech and districting as politics. It leaves districting issues up to the states, but not the state election giving that leads to the legislatures that draw district lines.
It has adopted a broad definition of speech, allowing corporations a free speech right to unlimited political spending, but it declines to extend that definition to the act of creating voting districts. Whatever way a person thinks these decisions should go, they seem inconsistent.
President Trump says there are Obama judges and Trump judges. Chief Justice Roberts tries to convince Americans that the Supreme Court is not partisan, that there are no Republican or Democratic justices. However well-intentioned, he only sugarcoats Trump’s truth.
Both decisions, wiping away limits on political contributions and allowing political districting, favor Republicans. The Court majority justices, making these decisions, are GOP appointees.
Of course, the justices could claim their views were not a matter of partisan Republican support but appropriately reflect their conservative views, which the president appointing them wanted to dominate the federal judiciary. The result is the same.
They would have been more honest in admitting their partisan conservatism during confirmation hearings. Instead, they hide by refusing to take positions on issues that might come before the Court – just about anything – or their seemingly restrained commitment only to “apply the Constitution.”
Nothing proves the Court’s partisanship more than Senate Majority Leader Mitch McConnell continuously and successfully blocking Obama nominees and now greasing the way for Trump picks.
As a moderate, Republican Sen. Susan Collins says she almost always supports the nominees of any president. But, when she does, that comes just after McConnell has done his deed.