TBA Law Blog

Posted by: William Haltom on May 1, 2014

Journal Issue Date: May 2014

Journal Name: May 2014 - Vol. 50, No. 5

I love oxymorons. My favorite is “jumbo shrimp.” Here’s a list of some of my other favorite oxymorons:

Preliminary conclusion
Working vacation
Low-fat Oreo cookie
New tradition
Airline food
Budget deficit
Congressional ethics
Constant change
Civil war
Tennessee Democratic Party
Domestic violence
No-fault divorce
Express Mail
First annual
Free trade
Genuine fake
Home school
Internal Revenue Service
Instant classic
Light heavyweight
Extended brief
Minor crisis
Mandatory judgment
Mutual differences

And here’s one that I wish everyone would please note: most unique. This actually is my least favorite oxymoron because I hear it all the time on television and radio commercials (“Knoxville’s most unique restaurant!”), and it drives me crazy, which, yes I know, is a short trip … and is also a fine oxymoron.

If you don’t read anything else in this column, please note the following: Something cannot be more unique or less unique or most unique. Unique is an absolute term meaning distinctive from anything in the world. I am not uniquer than you, and you are not uniquer than me. No, I do not write the most unique column in the Tennessee Bar Journal.

And now thanks to the United States Supreme Court’s recent decision in McCutcheon v. Federal Election Commission, we can soon add a new oxymoron to this list: free speech.
The case was brought by Shaun McCutcheon, an Alabama businessman who enjoys exercising his free speech. And there is nothing free about it.

In 2012, Mr. McCutcheon contributed $33,000 to 16 candidates for federal office. He wanted to give more, but he was stopped by a decades-old law that put a cap on the total amount any individual can contribute to a congressional or presidential candidate in a two-year election cycle.

McCutcheon argued that the cap restricted his free speech, and in a 5-4 decision, the nation’s highest court agreed. Writing for the majority, Chief Justice John G. Roberts said, “There is no right in our democracy more basic than the right to participate in electing our political leaders.”

By “participate,” the chief justice wasn’t referring to putting up yard signs or placing a bumper sticker on the back of your car that says “Joe Schmoe for Congress!” No, the chief justice was talking about speech, and in this case, not free speech, but very expensive speech.

Political campaigns now cost a fortune, and your typical member of Congress spends most of his or her time begging for money. You can spot them at major intersections holding up signs that read, “I will serve for food.”

The New York Times columnist Thomas Friedman has suggested that members of Congress should be required to dress like NASCAR drivers. Their business suits should be covered with patches containing the names of their major donors.

Way back in 1976 when Gerald Ford was president and you could run for Congress for say, a mere $100,000, the U.S. Supreme Court issued its decision in Buckley v. Valeo. The court said that political contributions were indeed speech protected by the First Amendment, but said that such contributions may be capped in the name of preventing corruption.

But now political campaigns have become like the famous knife fight scene in Butch Cassidy and the Sundance Kid. Rules in a knife fight? There are no rules in a knife fight, and apparently, soon there will be no rules on how much “free speech” you can buy to purchase your very own member of Congress. Such “free speech” should not be confused with “bribery,” which is still against the law, although that too may be changed in a future Supreme Court decision.

For most of us poor voters, “free speech” in political campaigns will be something we just can’t afford. But there are billionaires out there who have the resources to buy all the free speech they want.

According to a recent report in the Tennessee Journal, a group ironically called “Americans for Prosperity,” may soon buy a lot of free speech in Tennessee this summer in an effort to turn out of office three current members of the Tennessee Supreme Court — Chief Justice Gary Wade, Justice Connie Clark and Justice Sharon Lee. The group was founded by a couple of billionaires, the Koch brothers (no relation to retiring Tennessee Justice Bill Koch) who are engaging in not-so-free speech in political campaigns across the nation.

Now I’m not sure why the Koch brothers would want to buy some free speech in Tennessee to influence the outcome of a Supreme Court election. Neither of them live here, and I don’t know what beef they have with three current members of the Tennessee Supreme Court.

But there’s nothing unfair about this. If the Koch brothers and other Americans for Prosperity buy a lot of free speech on TV and radio stations and newspapers across the Volunteer State this summer, Chief Justice Wade, Justice Clark and Justice Lee and their supporters will have every opportunity to buy their own free speech to counter the free speech being exercised by the billionaire carpetbaggers. I am sure that at this very moment, these judges are calling their billionaire friends and requesting contributions.

It is a classic example of the Jeffersonian marketplace. Everyone has the right to spend millions of dollars saying who our Supreme Court Justices should be. But if this happens, we may soon have another oxymoron: fair and independent judges.

Bill Haltom BILL HALTOM is a shareholder with the firm of Lewis Thomason. He is a past president of the Tennessee Bar Association and a past president of the Memphis Bar Association. Read his blog at www.billhaltom.com.