There has been a lot of talk recently about what legal precedents are up for grabs and what is “settled law.”
But there hasn’t been much dispute when it comes to the money spent on politics: According to the Supreme Court, it’s free speech. That was first established in Buckley v. Valeo in 1976, and it’s been restated and expanded multiple times since then, most notably in the 2010 case known as Citizens United, which found that even corporations have a First Amendment right to spend money on electioneering.
So, it’s surprising to see Sen. Susan Collins claim that a crowdfunding campaign designed to influence her vote on the Supreme Court confirmation of Judge Brett Kavanaugh amounts to a “bribe,” when it’s really the kind of political speech that wealthy donors have been practicing legally for decades.
SENDING A MESSAGE
Collins objects to the “Be a Hero” campaign started by Ady Barkanz, a national health care activist with amyotrophic lateral sclerosis, and local advocacy groups Maine People’s Alliance and Mainers for Accountable Leadership. They have set up a fundraising website to support Collins’ still-undetermined opponent in the 2020 election – assuming that Collins votes to confirm Kavanaugh and plans to run for re-election. If either of those things don’t happen, the money would be returned to the donors.
This is not an attempt to buy Collins’ opposition to Kavanaugh, but it does give ordinary people an opportunity to get on the record saying that they plan to hold her accountable for this vote. It’s an opportunity that 36,000 people had taken by Tuesday, raising more than $1 million, with about three-quarters of the donations coming in the increment of $20.20, a numerical reminder of the upcoming election.
Collins’ office put out a statement calling this “quid pro quo fundraising” and “the equivalent of an attempt to bribe me.” If that’s so, it’s not just Kavanaugh’s critics who might be in legal trouble. Every billionaire who has dumped millions into a super PAC that buys issue ads calling on individual members of Congress to vote a certain way would stand on the same shaky ground. But it’s only the citizens group, not the billionaires, that is accused of breaking the law.
ONE LAW FOR BOTH SIDES
If the Koch brothers-affiliated Americans for Prosperity can spend “seven figures” to let senators know that they should support Kavanaugh if they want their support, or the Judicial Crisis Network, which is funded by unnamed donors, can budget $10 million for TV ads that warn of political consequences for a “no” vote, what’s wrong with named individuals making fully disclosed campaign contributions that deliver the opposite message?
All rights, including free speech, are limited. Some of Kavanaugh’s opponents appear to have gone far over the line in calls and messages to Collins’ office, which have included vulgar insults and threats of violence. That can’t happen. The organizers of the Kavanaugh opposition should denounce those tactics and make sure that the people they work with understand that threatening violence is a crime.
But as much as we would like to see stricter limits on political spending, conservatives have argued – and the courts have agreed – that it is constitutionally protected free speech. Unlike some other areas of controversy, it really is “settled law.”
Send questions/comments to the editors.
