Freedom of expression, as required in the 1st Amendment, may be the most important and fundamental right in American democracy. But what does it really mean, and are there any limits to that freedom?
Money is surely one of the most common means of expression, as it is spent on all forms of interests, wishes and views. Consequently, a complete ban on political spending clearly would violate the 1st Amendment.
We know and accept, however, Oliver Wendell Holmes’ ruling that free speech does not protect the freedom to cry “fire” in a crowded theater. Since then, there have been many arguments about what constitutes “fire,” and exactly how to define a “theater.”
So we already have some limits on freedom of expression. And, if there can be some limits, presumably there may be other appropriate limits to address the developments in political campaign spending.
Staying within Holmes’ fire/theater standard is not unreasonable. “Speaking” on political topics with billions of dollars triggers the same reaction in most people as crying fire in a theater, given the nature of TV and the internet in the modern world, makes the whole country the theater. Why, then, do some people seek to conflate freedom of expression with unlimited spending?
Though “one person one vote” is not enshrined in our Constitution in so many words, it is nevertheless a bedrock doctrine in genuine democracy.
It follows logically then that everyone should have freedom of financial expression, but I believe that everyone should have the same freedom up to the same reasonable limit.
To do otherwise would be to cede much more freedom of expression to the wealthy. That would create a serious distortion of the framer’s clear intentions.
Our legal system permits many behaviors only up to a certain point–but not beyond.
How about allowing everybody to express their political views with money, up to -say- $1,000 , simply to throw out a number to start a discussion. That would ensure universal freedom of expression, in a reasonable amount – perhaps enough to make a difference, but not enough to be dangerous.
By allowing any one person to spend unlimited money in the political arena, we open floodgates to dangerous favoritism, corruption, distortions, and give disproportionate political power to small and fringe minorities.
We should enact, by legislation, an annual per-person reasonable limit – in accordance with the first amendment, enabling universal expression, to significantly improve the working of our democracy.