The Need for Transformative Jurisprudential Change

The disproportionate influence of very wealthy individuals and corporations on the political process matters to everyday citizens.

October 15, 2014

By Seth Endo, DEMOS.

This entry is part of an ongoing blog series responding to an online symposium collaboration with the NYU Law Review, considering the future of money in politics in the post-Citizens United legal landscape.

In McCutcheon v. FEC, on behalf of the four justices in the controlling plurality, Chief Justice Roberts described the responsiveness of elected officials as one of the central components of democracy, stating, “Representatives … can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.”

Justice Breyer, writing for the four dissenting justices, also identified responsiveness as the principle animating his perspective on the case. He explained that the government interests favoring campaign finance regulations were “rooted in the constitutional effort to create a democracy responsive to the people—a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.”

So, here, we see that justices on both sides of the case believe that the First Amendment’s application to the campaign finance policies at issue turned on whether they enhanced or diminished the responsiveness of elected officials to the public.

At the convening on money in politics, which was hosted by the Brennan Center for Justice in May 2014, Professor Nicholas Stephanopoulos discussed his theory of alignment, which posits that “voters’ preferences [as to both party and policy] ought to be congruent with those of their elected representatives.” From this principle, Professor Stephanopoulos concludes, “If it is the people who are sovereign, then it is their preferences that should be reflected in the positions of their representatives.”

In other words, we should generally expect to see the public’s policy preferences reflected in legislative outcomes if elected officials are truly responsive to the public—that is, if the people are truly sovereign.

Instead, we see a dramatic misalignment where big money—not popular support or big ideas—appears to dominate the political process. As two political scientists from Princeton University found after studying almost 1,800 policy outcomes:

[E]conomic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while mass-based interest groups and average citizens have little or no independent influence.

And this disproportionate influence of very wealthy individuals and corporations matters to everyday citizens. For example, the minimum wage has stagnated even though a majority of Americans across parties want it to be high enough to keep a family out of poverty because a majority of the small class of political donors disagrees.

Despite this clear evidence of the distorting effect of big money in politics, the Roberts Court has engaged in a radical dismantling of the campaign finance laws that have promoted the role of voting constituents (instead of big money donors) in the electoral process as described in the contributions to the symposium offered by Profs. Yasmin Dawood, Deborah Hellman, Ciara Torres-Spelliscy, Johanna Kalb, and Burt Neuborne.

And, thus, the existing jurisprudence has led to a legitimate constitutional crisis point that requires a wholesale change in approach. As my colleague Adam Lioz explained:

[I]t’s time for an enduring interpretation of the Constitution that empowers the People to enact protections that strive not just for clean governance, but also to make democracy work for all Americans.

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We can transform the Supreme Court’s approach to money in politics by developing and promoting robust interpretive frameworks that go beyond corruption; promoting these ideas with legal and popular audiences; and ensuring that newly appointed justices share the public’s common-sense understanding of the Constitution.

The Brennan Center convening marked a significant development in this process. Safeguarding our democracy by addressing the outsized role of money in politics is one of the great issues of our time and demands our best efforts.