Davis v. FEC

Follow and support the Bipartisan Campaign Finance Reform (McCain-Feingold) too much and you might begin to think we live in some strange vortex where the Constitution and its First Amendment do not really mean what they say. Disabusing this notion if and where it exists (in this case at least), the Court held in Davis v. FEC that §§319(a) and (b) violate the Free Speech Clause of the First Amendment. In his opinion for the Court, Justice Alito wrote that, "the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment" and the "argument that a candidate’s speech may be restricted in order to ‘level electoral opportunities’ has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office."

Justice Alito and the Court are correct and their conclusion is the only one reconcilable with the text of the First Amendment, which mandates that "Congress shall make no law…abridging the freedom of speech." The language is pretty explicit, and it certainly does not say (as it would have to for this provision to be Constitutionally permissible) that "Congress shall make no law…abridging the freedom of speech, except when Congress determines that doing so will help level the playing field between competing candidates for Congress."

Hoping to preserve its prerogative to regulate political speech, the government argued that the provision is justified "because it ameliorates the deleterious effects that result from the tight limits that federal election law places on individual campaign contributions and coordinated party expenditures." However that is neither here nor there. The First Amendment says without exception that Congress shall not abridge the freedom of speech period, irrespective of the putative salutary effects and benefits of doing so. As Justice Alito pointed out, by penalizing an individual’s unfettered exercise of his right to free speech the government therebyn abridges it.

Noble intentions do not justify violating the text of the First Amendment. The Constitution does in fact actually mean what it says.