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In First Post-McCutcheon Comments, Lead Lawyer Contradicts Himself, Admits Money Isn’t Free Speech

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The Supreme Court’s tragic decision in McCutcheon vs. FEC has brought about a whirlwind of political commentary, spanning the spectrum from those, such as Newt Gingrich, who suggest remarkably that it will “equalize the middle class and the rich” to those, like E.J. Dionne, who understand that it will usher in an era of “supreme oligarchy.” Opinion aside, one thing is indisputable: Further legal validation has been granted to the concept that corporations are people and money equals free speech.  

We are hitting a point of no return with this ridiculous equivocation.

So just how flawed is this argument?  Well, consider this: Following the big money victory, the lead lawyer in the case, Dan Backer, used his first opportunity for public comment to admit that money does not truly equate to free speech despite the court’s assertion.

“I don’t understand why anyone should have their free speech limited to help somebody else feel like they can speak more. The Constitution does not envision the idea of, as the court said, ‘weakening the rights of some and the speech of some in order to enhance or promote the speech of others.’”

But the argument has a clear weakness. HuffPost asked Backer why, if money is speech, bribery is illegal. Shouldn’t bribery be considered an expression of one’s First Amendment rights?

Money quickly transformed in Backer’s reasoning. “The court did not say, and really neither does any serious commentator, that money is speech. Money is not speech. Money is a necessary tool to engage in political speech and political association,” he said.

If money isn’t speech, HuffPost asked, then why is it out of line for the government to regulate campaign donations?

“It’s not out of line. It’s allowed to regulate money in elections in order to prevent quid pro quo corruption,” Backer answered, referencing the narrow definition of corruption cited by the Supreme Court in the McCutcheon decision.

The truth will set you free.  

The mere fact that the victorious lawyer would instantly backpedal from his courtroom stance shows the pitiful nature of court’s McCutcheon position: Wealthy elites are simply tired of being treated as equals, and they’ll do and say anything to gain inordinate power.  

The decision also lends credence to the argument that the Supreme Court has been radically politicized, making impartiality an antiquated memory.  The vote, as most recent votes have, fell along party lines. Those parties, when it comes to the courts, are not even Democrat and Republican in nature anymore. They’re merely elite vs. everyone else. Dionne breaks it down:

On cases involving the right of Americans to vote and the ability of a very small number of very rich people to exercise unlimited influence on the political process, Chief Justice John G. Roberts Jr. and his four allies always side with the wealthy, the powerful and the forces that would advance the political party that put them on the court. The ideological overreach that is wrecking our politics is now also wrecking our jurisprudence.

We are out a sea, riding the violent waves of special interest money and each day, the Supreme Court deflates another life raft.

(Bill Maher used a slightly different aquatic metaphor.)


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