I have a very high regard for to US Supreme Court. I believe the members of the Court have done a good job over the two centuries of its existence in interpreting the law with minimal political bias. My trust, however, is being shaken.
In two high profile cases (Citizens United and this week’s McCutcheon) the Roberts Court has expanded very dramatically the probability that our nation’s politicians will be using their votes to appease wealthy donors. Many of us, myself included, think the problem is already ugly enough and is becoming worse.
At issue is an understanding of the rights guaranteed in the Bill of Rights. The First Amendment says (among other things), “Congress shall make no law . . . abridging the freedom of speech.”
Conservatives tend to interpret at least some of the Amendments in a very strict, literal sense, even though common sense and the decisions of the Supreme Court over the years have made clear that there may be limits to these freedoms. In the famous case of Schenk v US (1919), chief Justice Oliver Wendell Holmes, stated the limitations on free speech very concisely.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
He has rightly noted that limitations on free speech may be imposed by Congress if the proscribed speech is “of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Do massive campaign donations constitute such a clear and present danger? I confess it is difficult for me to envision anyone thinking otherwise. Of course they do.
TV advertising is very expensive and few can afford it. The reason it is so is that such advertising is far more effective than any other kind of advertising. If that were not true, why would companies spend millions of dollars on TV advertising?
If you exercise your right to free speech in such a way as to drown out my right, you have exceeded the rightful limits on free speech.
And if you exercise your rights in such a way as to subvert American democracy, you have exceeded those limits.