No, the sky isn’t falling: A level-headed guide to McCutcheon v. FEC

While this may sound initially attractive, a moment’s thought makes it clear that this view is untenable. Elected officials cannot be trusted to fairly regulate the process upon which their jobs depend and the government could have no meaningful principle to determine how loud someone should be allowed to speak or even what the “voice of the many” is saying. As Chief Justice Roberts wrote, “the degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process.”

The frightening thing about McCutcheon is that a near-majority of the Court holds this view that turns the First Amendment on its head. If we don’t limit the doctrine of corruption to actual candidates, if we empower the government to regulate a “corrupt” marketplace of ideas, then there is no reason to limit it to elections. The subscription base of the New York Times is certainly too large, perhaps we should limit how many copies can be printed? And, Oprah, well she is certainly too influential, so while we’ll allow her to speak privately, we’ll make it illegal for her to use her network for political speech.

Campaign finance law may be complex, but what’s at stake is simple. It is too bad that four justices don’t seem to understand this.