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A New Campaign Finance Jurisprudence

Democracy 21 President Fred Wertheimer writes that a new jurisprudence on campaign finance requires a greatly expanded approach to the definition of “corruption.”

October 15, 2014

By Fred Wertheimer, President, Democracy 21.

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.

The world of campaign finance jurisprudence radically changed when Chief Justice Roberts and Justice Alito joined the Supreme Court in 2005 and 2006 to create a new Court majority.

The Roberts majority proceeded to overturn a century of the nation’s policies and decades of Supreme Court jurisprudence on campaign finance issues.

In the 2010 Citizens United decision, the Court reversed the Austin decision to strike down a longstanding ban on corporate campaign expenditures. The Court also managed to hold that when it comes to financing elections, corporations have the same constitutional rights as citizens.

Incredibly, Justice Kennedy wrote for the majority in that case that the corporate expenditure ban had a “chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question.”

In other words, the Court majority found that the right of a corporation to make campaign expenditures trumps the right of a nation to protect its citizens against government corruption.

In McCutcheon, the Court reversed a portion of Buckley to strike down an aggregate limit on total contributions by an individual. Chief Justice Robert’s opinion dramatically narrowed the Court’s definition of corruption to cover only bribery, or “a direct exchange of an official act for money.” That position had been repeatedly rejected by the Supreme Court for more than three decades.

Where do we go from here?

We prepare and advocate for a new campaign finance jurisprudence to be ready when this Court’s majority is gone, as it surely will be one day.

One path to a new jurisprudence is to develop a greatly expanded approach to the corruption rationale.

Concerns about the destructive impact of corruption on our system of government are embedded deeply in American history, and are found throughout the writings of the Founders and framers of the Constitution. This has been ably demonstrated in recent works published by Larry Lessig and Zephyr Teachout.

Furthermore, preventing corruption as a rationale for campaign finance restrictions has a powerful hold on the public. It has been articulated by Congress and the Supreme Court for decades.

A new and expanded approach to the corruption rationale involves two parts.

First, the meaning of corruption as developed by numerous Supreme Court campaign finance cases prior to the Roberts Court needs to be restored. The stated position of the Roberts Court that corruption is limited to a quid pro quo exchange is absurd and divorced from reality.

Second, a new rationale needs to be developed that frames the jurisprudence in terms of the corruption of our democracy – the corruption of our constitutional system of government.

There are fertile grounds to develop the broad idea that effective campaign finance regulations are necessary to prevent the “corruption of democracy,” not just the corruption of specific government decisions or particular individual officeholders.

The ability of a relatively minuscule number of our wealthiest citizens (out of more than 300 million Americans) and our most powerful corporations to use campaign money to dominate government decisions and exercise extraordinary influence over our elections debases and corrupts our democracy. It fundamentally undermines the constitutional principle of one person, one vote.

The Constitution surely allows our nation to protect itself against the systemic corruption of our democracy and political system.

To put it in simple terms, Justice Kennedy’s statement in Citizens United that the right of a corporation to spend money in elections trumps the right of a nation to protect itself from the corruption of its government must be sent to the dustbin of history.

The efforts to create a new jurisprudence should include developing a rationale that the First Amendment itself serves “pro-democracy” purposes that are consistent with and furthered by campaign finance regulation.  The “money is speech” rationale says that a million dollars in our democracy gets a First Amendment right to speak a million times louder in our elections and political system than a dollar does. A new jurisprudence should confront this distorted view of the First Amendment.