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American democracy is trapped in a sealed box built by the Supreme Court, and as the Court’s recent decision demonstrates, five justices are slowly but surely pumping the air out of the box.

  • Burt Neuborne
April 3, 2014

Cross­pos­ted on SCOTUS­b­log

Help.  Amer­ican demo­cracy is trapped in a sealed box built by the Supreme Court. As the Court’s decision in McCutcheon v. Federal Elec­tion Commis­sion demon­strates, five Justices are slowly but surely pump­ing the air out of the box.  The box has four walls built by the Justices in Buckley v. Valeo(1) an insist­ence that spend­ing money in a polit­ical campaign is always the exact legal equi­val­ent of “pure” speech, no matter how high the spend­ing goes; (2) a rejec­tion of the idea that preserving a modicum of polit­ical equal­ity justi­fies placing any limit on campaign spend­ing, even at stra­to­spheric levels; (3) an insist­ence that “direct” campaign spend­ing has more First Amend­ment protec­tion than “indir­ect” campaign contri­bu­tions;  and (4) a refusal to admit that unlim­ited inde­pend­ent spend­ing poses the same risk of “corrup­tion” or the “appear­ance of corrup­tion” posed by campaign contri­bu­tions.

The net result of the four Buckley walls was a strangely configured room where ideo­lo­gic­ally driven inde­pend­ents were priv­ileged to spend as much campaign money as they wished, while candid­ates and polit­ical parties scrambled to raise contri­bu­tions in relat­ively small amounts in order to deter “corrup­tion.”  The Buckley Court left some air in the room because the Court’s studi­ously vague defin­i­tion of “corrup­tion” or the “appear­ance of corrup­tion” initially permit­ted the govern­ment to argue that allow­ing a hugely wealthy donor to exer­cise “undue influ­ence” over elec­ted offi­cials based solely on campaign contri­bu­tions not only evis­cer­ated any concept of polit­ical equal­ity, but it also resul­ted in both the real­ity and appear­ance of corrupt­ing the very idea of repres­ent­at­ive govern­ment, by erod­ing the abil­ity of elec­ted offi­cials to exer­cise genu­inely inde­pend­ent judg­ment.  That’s why aggreg­ate limits on campaign contri­bu­tions were upheld by the Buckley Court, and why aggreg­ate contri­bu­tion limits were assumed to be consti­tu­tional for forty years, until today.

Several Justices then set about trying to pump out that little bit of air, misread­ing Buckley by insist­ing that the only form of “corrup­tion” that could justify contri­bu­tion limits is quid pro quo corrup­tion, already illegal as bribery or extor­tion.  As Justice Brey­er’s dissent in McCutcheon demon­strates, they failed for almost forty years, until they were success­ful in slip­ping a narrow defin­i­tion of “corrup­tion” into Citizens United as dictum. In McCutcheon, the Roberts plur­al­ity pivots on that dictum to seal up the last air hole. Under the plur­al­ity’s govern­ing test (which is govern­ing because the Thomas approach rejects even the risk of quid pro quo corrup­tion as a justi­fic­a­tion for limit­ing contri­bu­tions), preven­tion of narrowly defined quid pro quo corrup­tion is the sole possible basis for limit­ing the size of campaign contri­bu­tions, with inde­pend­ent expendit­ures continu­ing to be treated as wholly exempt from regu­la­tion because, in the eyes of five Justices, inde­pend­ent expendit­ures pose no risk of quid pro quo “corrup­tion.” Once the govern­ment became trapped in that airless box, it proved impossible to persuade the plur­al­ity that aggreg­ate contri­bu­tion limits play a real role in prevent­ing quid pro quo corrup­tion, as long as the base limit on each indi­vidual contri­bu­tion is adhered to.  The argu­ment is a simple one. If the base contri­bu­tion limit defines the point at which a risk of quid pro quo corrup­tion is present, adher­ing to that base limit should take care of the corrup­tion risk, no matter how many base contri­bu­tions are made, render­ing the aggreg­ate limits unne­ces­sary.  Watch­ing the govern­ment twist in that airless room trying to build Rube Gold­berg scen­arios explain­ing how a $3.2 million aggreg­ate contri­bu­tion can seep down to indi­vidual candid­ates or entit­ies in amounts that exceed the base limit would have been funny, if so much weren’t at stake.  You knew that five Justices, dead set against the regu­la­tions, would reject the govern­ment’s scary stor­ies as either unlikely, or subject to other forms of regu­la­tion.  And that’s just what the McCutcheon plur­al­ity does, insist­ing that the real-world prospect of a single donor cutting a check for millions of dollars to an umbrella entity poses little or no risk that any of the money would find its way to constitu­ent entit­ies in ways that threaten quid pro quo corrup­tion. After all, if you don’t believe that massive inde­pend­ent expendit­ures on behalf of a candid­ate pose a risk of elect­oral corrup­tion, why would you be concerned that even unequal distri­bu­tion of aggreg­ate contri­bu­tions poses a risk of quid pro quo corrup­tion of any given recip­i­ent?   Even on its own terms, the Roberts plur­al­ity simply ignores the fact that polit­ical decisions are not always, or even usually, the result of atom­istic decisions by indi­vidual legis­lat­ors. That was the initial vision of the Founders.  All agree that the Founders’ vision did not survive the elec­tion of 1800, and that today’s polit­ics take place in the shadow of collect­ive decision-making by polit­ical parties, or other less formal polit­ical group­ings.  To the extent the Roberts plur­al­ity has a tech­nical flaw, it is the fail­ure to address the risk of quid pro quo corrup­tion in the context of a deal with a group.  But I’m afraid that train has left the station.

When the dust from the McCutcheon demoli­tion settles, all that’s left are base contri­bu­tion limits in a larger campaign finance system where Amer­ica’s olig­archs can choose between unlim­ited inde­pend­ent expendit­ures and unlim­ited aggreg­ate contri­bu­tions to buy all the polit­ical influ­ence they will ever need. The one good thing you can say about the opin­ion is that maybe it will re-direct some of the money now being expen­ded as inde­pend­ent expendit­ures to the major polit­ical parties in the form of large aggreg­ate contri­bu­tions, giving candid­ates and parties a chance to regain some control of the elect­oral agenda.  In that sense, McCutcheon improves the config­ur­a­tion of Buckley’s airless room, but leaves Amer­ican demo­cracy trapped at “one dollar, one vote.” There is no ignor­ing the fact that Amer­ican demo­cracy is now a wholly owned subsi­di­ary of Olig­archs, Inc.

McCutcheon teaches one import­ant lesson. Campaign finance reform cannot take place in the current  Supreme Court’s airless room. The McCutcheon plur­al­ity’s cava­lier approach to stare decisis, and the will­ing­ness of five Justices in Citizens United to over­rule both Austin v. Michigan Cham­ber of Commerce and McCon­nell v. Federal Elec­tion Commis­sion, means, however, that the airless room is good law only as long as the current Supreme Court config­ur­a­tion remains stable.  Justice Brey­er’s impas­sioned dissent points the way to pump­ing air back into the room by treat­ing corrup­tion not merely as a form of quid pro quo bribery, but as the erosion of the proper oper­a­tion of demo­cratic insti­tu­tions.  As Justice Breyer notes, repres­ent­at­ive demo­cracy simply cannot oper­ate prop­erly as long as a small group of very wealthy persons are consti­tu­tion­ally licensed to purchase “undue influ­ence” over the supposedly inde­pend­ent judg­ment of legis­lat­ors.  Recog­niz­ing that fact would not only resur­rect aggreg­ate contri­bu­tion limits, it would be a blue­print for regu­lat­ing massive inde­pend­ent expendit­ures.

Perhaps most import­antly, McCutcheon illus­trates two compet­ing visions of the First Amend­ment in action. Chief Justice Roberts’s opin­ion turn­ing Amer­ican demo­cracy over to the tender mercies of the very rich insists that whether aggreg­ate contri­bu­tion limits are good or bad for Amer­ican demo­cracy is not the Supreme Court’s prob­lem. He tears seven words out of the forty-five words that consti­tute Madis­on’s First Amend­ment – “Congress shall make no law abridging . . . speech”; ignores the crucial limit­ing phrase “the free­dom of,” and reads the arti­fi­cially isol­ated text frag­ment as an iron dereg­u­lat­ory command that disables govern­ment from regu­lat­ing campaign finan­cing, even when dereg­u­la­tion results in an appalling vision of govern­ment of the olig­archs, by the olig­archs, and for the olig­archs that would make Madison (and Lincoln) weep.

Justice Brey­er’s dissent, seek­ing to retain some limit on the power of the very rich to exer­cise undue influ­ence over Amer­ican demo­cracy, views the First Amend­ment, not as a simplistic dereg­u­lat­ory command, but as an aspir­a­tional ideal seek­ing to advance the Founders’ effort to estab­lish a govern­ment of the people, by the people, and for the people for the first time in human history. For Justice Breyer, there­fore, the ques­tion of what kind of demo­cracy the Supreme Court’s decision will produce is at the center of the First Amend­ment analysis. For Chief Justice Roberts, it is completely beside the point.   I wonder which approach Madison would have chosen.

As a nation, we’ve weathered bad consti­tu­tional law before. Once upon a time, the Supreme Court protec­ted slavery. Once upon a time the Supreme Court blocked minimum-wage and maximum-hour legis­la­tion.  Once upon a time, the Supreme Court endorsed racial segreg­a­tion, denied equal­ity to women, and jailed people for their thoughts and asso­ci­ations.  This, too, shall pass.  The real tragedy would be for people to give up on taking our demo­cracy back from the olig­archs.  Fixing the loop­holes in disclos­ure laws, and public finan­cing of elec­tions are now more import­ant than ever.  Moreover, the legal walls of the airless room are paper-thin. Money isn’t speech at obscenely high levels. Protect­ing polit­ical equal­ity is a compel­ling interest justi­fy­ing limits on uncon­trolled spend­ing by the very rich. And prevent­ing corrup­tion means far more than stop­ping quid pro quo bribery. It means the preser­va­tion of a demo­cracy where the governed can expect their repres­ent­at­ives to decide issues inde­pend­ently, free from economic serf­dom to their paymas­ters. The road to 2016 starts here. The stakes are the preser­va­tion of demo­cracy itself.

(Photo: Think­stock)