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What Luke Wachob Gets Wrong On McCutcheon

Seth Endo

In a recent op-ed at Forbes, Luke Wachob touts the decision in McCutcheon v. FEC as a victory for free speech. The problem with Wachob’s analysis (which mirrors the same flaws in Chief Justice Roberts’s McCutcheon opinion that were pointed out by Justice Breyer) is his assumption that the introduction of more money into the political system creates unmitigated First Amendment benefits—a view that makes a few critical misassumptions and ignores evidence to the contrary.

Wachob first asserts that unlimited political spending serves everyone affected by American policy because it produces a better informed and more engaged electorate. But it has been shown that increased campaign spending can lead to more confusion amongst voters. And a plurality of Americans believes that contribution limits protect the integrity of our democracy, a concern that plays into voter engagement.

Wachob also mischaracterizes contribution limits as a veiled incumbent-protection scheme. This ignores research that shows contribution limits reduce the financial bias traditionally favoring incumbents, lead to closer elections, and increase the number of candidates in races.

Most problematic though is Wachob’s conflation of restrictions on the amplification of speech with prohibitions of specific content. Employing this conflation and implicitly suggesting that aggregate contribution limits were designed to silence critics of the government, Wachob asserts that history shows that the power to restrict speech is always used against those who criticize the powerful such as communist sympathizers during the Red Scare.

This statement, however, fundamentally misunderstands the nature of the aggregate limits, which were content-neutral regulations that did not target the dissemination of any particular messages or seek to silence wealthy donors. Instead, the limits merely sought to prevent a small set of powerful donors from using million-dollar megaphones to shout over the members of the public whose unamplified voices were already difficult to hear in the political din.

Furthermore, the aggregate limits impacted just over 1,200 extremely wealthy individuals who themselves are the powerful—a set of individuals who are not truly comparable to the politically vulnerable groups invoked by Wachob.  Illustrating the disproportionate political influence wielded by this small group, a pair of political scientists recently released a paper in which they analyzed almost 1,800 policy outcomes, concluding that “economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while mass-based interest groups and average citizens have little or no independent influence.”

Wachob dismisses the risk of the political domination by the wealthy few by observing that the public does not mindlessly follow advertisements and that all registered voters get one and only one vote on Election Day. But, while those two points are true, they also are not the end of the story. First, as Noble Prize winning economist Gary Becker concluded in his article, “A Theory of Competition Among Pressure Groups for Political Influence,” voter preferences “can be manipulated and created through information and misinformation provided by interested pressure groups.” Accordingly, any reasonable, robust analysis of the First Amendment values at stake must also acknowledge that, in the real world, big-money interests may use advertising to improperly influence voters notwithstanding their general intelligence and sophistication. Second, as demonstrated in a research report authored by my colleague Adam Lioz, these same big-money interests effectively pre-filter the pool of candidates from which voters may choose on Election Day. So, while everybody can cast their vote, there are many other points in our current money-hungry political process at which the financial power of the wealthy gives them a seat at the table that is denied to the general public. And thus the formal equality of each registered voter cannot be considered a true panacea to the political equality problems created by so much money in politics.

Finally, Wachob reiterates that the answer to speech is more speech and that any other response is a perversion of the First Amendment. But, again, this turns a blind eye to the data that shows how the wealthy can use their financial resources to amplify their speech to the point that the voices of ordinary citizens go unheard.

In sum, Wachob’s refusal to acknowledge the costs of the McCutcheon decision suggests a view that is either untethered from reality or tacitly approves a very cynical understanding of the First Amendment and the self-governing democracy it was meant to protec