Chief Justice Robert began McCutcheon with an interesting observation:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign.
As Deborah Hellman points out in her recent article
for the NYU Law Review, people are roughly equal in their ability to exercise each of the other modes of participation while they are dramatically and manifestly unequal in their ability to contribute money to candidates or campaigns.” By placing donating to candidates alongside these quintessential democratic rights, the Court intentionally injects a market element into our elections.
To be sure, many people can donate a very small sum to a candidate to show their support. For those with little money, the symbolism of such a contribution could be great indeed. But candidates most zealously chase (and respond to) large contributions, not small contributions that represent a large percentage of a donor’s wealth. Though the Court recognized in its 1976 Buckley decision that “[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution,” the McCutcheon Court dismissed this idea, saying that requiring a donor to give less “penalize[s] that individual for robustly exercising his First Amendment rights.” Worst of all, the McCutcheon Court praised the “ingratiation and access” that such large contributions provide, saying they “embody a central feature of democracy” and “are not corruption.”
As Johanna Kalb and Burt Neuborne explain in their introduction
, the Court has set our democracy on a path toward “an unregulated political marketplace.” This marketplace is not the idealized marketplace of ideas, but a marketplace of money. Rather than all individuals having the equal opportunity to influence their elected officials, the wealthy have special democratic privileges that the vast majority of us can’t afford.
Crucially, note that the concern is not that the ideas of the wealthy will be adopted in the end; all individuals, including the wealthy, are entitled to have their views expressed, considered, and potentially adopted. The concern is that because the democratic decision making process is tainted by an improper influence — purchased special access and influence for a select few — constituents can’t be confident that their representatives are acting in their best interests. In fact, in many instances, the big donors aren’t even constituents of the candidates they financially support.
When the purchase of special access and influence becomes a feature of democracy, something has clearly gone awry. Our campaign finance jurisprudence is in dire need of a change. Only by elevating the true basic rights of democracy — running for office, voting, supporting the candidates of one’s choice, and expressing one’s views — above the ability to buy access and influence to candidates can we ensure a place in our democracy for all citizens.