Political Speech: Why the Supreme Court Might Just Do the Right Thing

The Supreme Court is examining a case that could redefine the relationship between political parties and candidates. Current regulations prohibit parties from coordinating with their candidates, but these rules may soon become obsolete.

A History of Regulating Political Speech

Efforts to control political speech have evolved over time:

Hard Money: Directly given to candidates.
Soft Money: Funds for parties.
Express Advocacy: Independent group expenditures.
Issue Advocacy: Spending on broader issues.

This process is likened to "peeling an artichoke leaf by leaf."

Supreme Court's Stance

The Supreme Court has gradually dismantled these regulations:

1976: Struck down spending limits, recognizing the importance of money in political communication.
Contributions: Initially slow to protect contributions as a form of political participation.

The Core Issue: Coordinated Expenditures

The court views "coordinated" party expenditures as similar to contributions, which can be limited. However:

Contributions cannot buy specific official acts.
Donors cannot earmark contributions for particular candidates.

Research indicates that legislative behavior is primarily driven by:

Ideology
Party affiliation
Constituents' desires

Proving corruption is challenging, as contributions typically align with candidates' existing positions.

Impact of Current Regulations

Limits on coordination weaken parties, leading to:

Increased reliance on super PACs.
Parties' diminished effectiveness.
Worsening political polarization.

Financial Disparity

In the 2020 election cycle:

Parties raised $2.5 billion.
Total spending on federal races: $15.1 billion.

The Danger of "Reform"

In 2014, Democratic senators proposed amending the First Amendment to limit political speech, highlighting the risks of letting the political class define "reasonable" limits.

Incumbent Advantage

Campaign laws are written by incumbent legislators, who benefit from these regulations and have a high chance of reelection.

Mitch McConnell's Role

Sen. Mitch McConnell has been a vocal advocate for free political expression and against limits on party-candidate coordination. As he leaves the Senate, he leaves behind a more favorable political and constitutional landscape.