The First Amendment and Political Influence

In the world of post-Citizens United and post-McCutcheon, what are other factors, besides money, influencing elections?  Many liberals believed the sky would fall with the Supreme Court ruling in McCutcheon v FEC where, according to Justice Breyer’s dissenting opinion, the Court “eviscerates our Nation’s campaign finance laws.”  The Senate even went so far as to hold hearings on the future of money in politics.  The First Amendment is at the root of nearly all political influence skirmishes as it protects free speech.

For starters, the most obvious influence in politics is the aforementioned monetary influence.  Money has a two-tiered approach when influencing politics.  First, millions of dollars that are thrust into campaign action funds and committees by outside groups are used for advertising to boost name recognition.  Candidates who have more money can spend it on campaign literature, mass mailers, television ads, billboards, and myriad other outlets for gaining critical name recognition essential for being identified by voters.  Secondly, as in the case of McCutcheon, money can be used to buy favors.  The Supreme Court examined quid pro quo corruption in the McCutcheon case where a wealthy donor may contribute a hefty amount to a candidate during an election in return for legislative support later once the candidate is elected to office, of course.

The media’s role in politics is significantly undermined, however.  A recent pew poll indicated that Fox News maintains a 74% favorability rating among their viewers, who are mainly conservative.  However, as Danny Vinik of the New Republic wrote recently, “A new Brookings and Public Religion Research Institute poll shows just how out of touch Fox News viewers are with both their fellow Republicans and the rest of the country,” meaning the viewers of Fox News are heavily influenced by the personalities on the network.  In the McCutcheon decision, Chief Justice John Roberts wrote, “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”  Newspaper endorsements are huge influencers in elections.  The media played a huge role in the primary defeat of Republican Majority Leader Eric Cantor.  Cantor’s challenger, a virtually unknown college professor named David Brat, had very little name recognition prior to his victory (though some analysts attribute Cantor’s attacks against Brat as a major contributor to his name recognition as opposed to if Cantor simply ignored Brat altogether.)  Conservative talk radio superstars such as Laura Ingraham and Mark Levin rallied behind Brat and provided a real grassroots uprising against Cantor.  Brat’s talk radio boosts completely negated the fact that Cantor outspent Brat 25 to one by some estimates (delegitimizing liberal attacks against campaign finance.)  In fact, Chairman of the House Intelligence Committee Mike Rogers (R-MI) announced over the winter he would be retiring from the gridlock in Congress to become a talk radio host, where he will certainly wield more power and influence.

Then there is the issue of lying.  The Supreme Court this week granted standing, unanimously, to an anti-abortion group named the Susan B Anthony (SBA) List in their challenge against a law in Ohio that prohibits false statements in the context of political campaigns.  The Supreme Court was not ruling on the merits in this instance but rather if SBA List met the constitutional requirements for standing to sue.  By granting standing, the case can move forward with the group’s challenge of the Ohio law.  Many opponents of the law believe it is in complete anathema to the First Amendment’s guarantee of free speech.  The flip side is best demonstrated by the defendant in the SBA List suit, former Congressman Steve Driehaus.  Driehaus complained to the Ohio Election Commission during his unsuccessful 2010 reelection campaign because SBA List had posted on a billboard that Drihaus supported tax payer funded abortion with his vote for the Affordable Care Act – a far-reaching conclusion from the law that was passed and a statement Driehaus believed to be untrue.

Questions that can arise from such a law limiting political speech are: who is to say that a statement is true or false?  Does Ohio’s law require some type of board or truth police to rule on these matters?  Can false speech unfairly influence an election?  These questions will have to be answered in upcoming litigation.

The First Amendment’s protections of speech can sometimes, in the minds of some, be detrimental to the foundation of democracy and politics.  Though constitutional rights are not absolute, the question must be asked, what is more important, integrity to democracy and its process, or civil liberties?  Some value liberty over democracy and thus hold the Bill of Rights in the highest esteem as they were put in place as a bulwark against government intrusion in everyday life.  The argument of speech and political influence breaks down to one of ideology – democracy v. liberty.