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Today, in McCutcheon v. FEC, the Supreme Court opened the door to even more money infecting the political process by invalidating campaign finance laws that "limit on how much can be contributed to all federal candidates put together — $48,600 — as well as the total that can be given to political parties and PACs."  The Court's decision includes the following statements:

"Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated interest."

The Court must “err on the side of protecting political speech rather than suppressing it.”

I am a lawyer, (not a Constitutional lawyer, though I play one sometimes on Kos), and this is my initial gut reaction to this decision, with minimal research.  But it strikes me that if the Court is going to construe money as speech under these broad principles, it should follow that voter ID laws and other voter suppression laws violate the same interests as those that were protected today in the McCutcheon decision and earlier in Citizens United.

What can be more "political speech" than the act of voting itself?  Why is spending money to encourage votes for a candidate any more an act of speech than the vote itself?

In probably his most serious mistake, in 2008, Justice Stevens upheld Indiana Voter ID laws in Crawford v. Marion County, based on the view that the law in question was not shown to impose enough of a burden on voting to violate the equal protection clause of the 14h Amendment.  My quick review of that case did not find specific reference to a First Amendment argument, however.

Perhaps my argument is naive, but I wonder if the Roberts' Courts' very expansive definition of "free speech" in Citizens United and McCutecheon, and the Court's strong language that such speech must be protected, provides an opening for defeating the Vote ID and other voter suppression laws being passed around the country.

And, unlike Bush v. Gore, McCutcheon and Citizens United do not have the weasel language of the 2000 case that its holding is "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."


Adam B?
Its the Supreme Court Stupid?



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Comment Preferences

  •  We have a secret ballot. (0+ / 0-)

    Thus, voting inherently can't be speech, I'd think.

  •  voting (1+ / 0-)
    Recommended by:

    if thought of as a kind of speech, is permitted to some, but not all people.

    For example, children, non-citizens and felons don't get to vote. Certainly those people can still speak all they want about politics.

    So i don't really think it works.

  •  Speech is Variously an Artifact or an Activity (3+ / 0-)
    Recommended by:
    Bethesda 1971, Bob Love, jayden

    that is not necessarily one "of the people" which makes it different from peaceable assembly or the bearing of arms. Those are rights of the people.

    It's the speech that must be free, doesn't matter who or what the speaker is. Nobleman, corporation, supercomputer.

    But our "court" "traditions" of modern times raise another interesting question.

    Since both money and land are property, and money is Constitutionally also speech and cannot generally be restricted, can we get a decision recognizing freedom of land?

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Apr 02, 2014 at 09:58:17 AM PDT

  •  I agree (3+ / 0-)

    And if there are no limits on how much free speech is allowed then I should get to vote as many times as I like.

    As my father used to say,"We have the best government money can buy."

    by BPARTR on Wed Apr 02, 2014 at 10:14:53 AM PDT

  •  But you've already stated the counter-argument (1+ / 0-)
    Recommended by:
    Liberal Capitalist

    The burden of Voter ID laws are weighed against the governments compelling interest.

    In many states we used this specific test to strike down plenty of voter restriction laws.  The impact on the voting citizenry far outweighed the compelling regulatory interest of the State.

    In Indiana, as you specifically cited, Stephens (and the rest of the majority) found that the requirements as detailed in the statute was not a significant burden and therefore is overruled by the State's compelling interest to enforce fair elections.

    I'm not sure what new challenge you are making to the current reading of the law/Constitution.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Wed Apr 02, 2014 at 10:34:42 AM PDT

    •  I don't think voting has yet been (0+ / 0-)

      construed as a fundamental right.  In fact there have been amendments proposed to make it that.  I think the expansion of the definition of speech in the finance decisions could be an argument that voting is in fact a fundamental right and requires a higher burden.

      Steve Gilliard Lives.

      by Bethesda 1971 on Wed Apr 02, 2014 at 10:51:34 AM PDT

      [ Parent ]

  •  "Voting is power and power ought to be checked" (1+ / 0-)
    Recommended by:
    Bethesda 1971

    At least that's how conservatives see it.  I will paraphrase:

    "Billionaires spending piles of money to put ideas and candidates out there is the same as bringing new products to market: in and of itself, an objectively good thing that can only increase choice.  Liberals struggle to do it because there's little demand for their product and therefore little money in it; hence their appetite for ever more government to mandate and impose what they cannot sell and to squeeze out the competition."

    But voting.  Voting is judgment.  It is the means by which the country is led to greatness or to ruin, much as individual people find happiness and success or misery and failure based on their own choices.  While having more things to choose from is always good, the choice itself is fraught with moral implication and practical consequence.  And people who are casual about their own affairs, ignorant or indifferent to the future and the world around them, and interested only in what they can get from someone else will bring that attitude into the voting booth with them ...

    ... and vote Democrat."

    Domestic politics is the continuation of civil war by other means.

    by Visceral on Wed Apr 02, 2014 at 10:46:31 AM PDT

  •  Excellent information and analysis of this case (1+ / 0-)
    Recommended by:
    Catte Nappe

    at Here is a link:

    "let's talk about that"

    by VClib on Wed Apr 02, 2014 at 11:22:29 AM PDT

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