Editorials: Burning the house to roast the pig: Can elections be saved by banning political speech? | SCOTUSblog

The central paradox of most campaign finance reform measures is that they are premised on the odd notion that political speech is far too important to be free. That paradox presents itself to the Justices yet again in McCutcheon v. Federal Election Commission as they prepare to rule on another First Amendment challenge to a campaign finance restriction on political spending. Of course, the proponents of such regulations rarely frame the issue that way.  Rather, they generally argue that the First Amendment was never intended to allow unfettered political participation in the form of campaign contributions or expenditures and that the activity they seek to regulate is not really protected expression. They also argue that the subjects of their intended regulation are not entitled to constitutional privileges. This has generated two great bumper sticker themes that have dominated the “tastes great-less filling” shouting match over political campaign regulation since Buckley v. Valeo (1976), and Citizens United v. FEC (2010):  (1) Is money speech?, and (2)  Are corporations people?  These aren’t the actual legal questions at issue of course, but are merely the caricatures of the underlying questions as translated in the political realm.
Citizens United has been a lightning rod for criticism because it answered the second of those questions in the affirmative. Well, actually, the answer was in the negative, because the real question before the Supreme Court was whether the First Amendment permits the federal government to criminalize core political expression shortly before primaries or general elections when the speaker takes a corporate form.
Somehow, it suggests a different answer when the question is framed as whether the federal government may make political speech a felony notwithstanding the First Amendment, rather than asking whether corporations, like Soylent Green, are people.  Nevertheless, the reaction to Citizens United was a predictable political Rorschach test: Supporters of restricting corporate (and union) political expenditures denounced the decision as a distortion of the First Amendment and called on various measures to rein in such an expansive reading of constitutional rights, including by amending the Constitution itself.
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