Cross-posted from The National Book Review
Nearly half of the early money for this year’s presidential contest was provided by just 158 families, the New York Times reported last fall. These donors are “overwhelmingly white, rich, older and male in a nation that is being remade by the young, by women, and by black and brown voters,” the Times observed, and while the economy has been “minting billionaires in a dizzying array of industries” most of these mega-donors “made their fortunes in just two: finance and energy.”
That a relative handful of Americans now so thoroughly dominate election spending has come, for many, to seem inevitable, if lamentable. But as law professor Rick Hasen of the University of California, Irvine, explains in his eminently readable and compelling new book, the outsized influence of the super wealthy over our elections was by no means predestined. Hasen—one of the nation’s leading election law and campaign finance scholars – combines history, legal analysis, and political commentary, to explain how our current system came to be, why it matters, and how he believes we can fix it.
Hasen lays the blame of “how” we got here squarely with the Supreme Court. The truth is that many aspects of modern campaigns that Americans have come to detest—super PACs, secret money, unlimited union and corporate spending, and the ability of billionaires to sponsor candidates like racehorses – can be traced to a series of 5–4 Supreme Court decisions (including, most famously, Citizens United v. FEC), handed down in just the last nine years.
But as Hasen points out, the seed for all of these decisions, radical though they were, was planted in Buckley v. Valeo, a 1976 Supreme Court ruling. Buckley, which considered a challenge to far-reaching campaign finance laws passed in the aftermath of Watergate, held that limits on political spending trigger First Amendment scrutiny because of the significant role that money plays as a tool of communication in modern society. The Court held that the government’s interest in preventing corruption could justify some limits on political contributions to candidates, but not on spending that happens “independently.” Crucially for Hasen, theBuckley Court also explicitly rejected the notion that the government can place limits on political spending in order to prevent the wealthy from having outsized influence in election outcomes. For Hasen, as for many reformers, this is the original sin in modern American campaign finance jurisprudence.
In Hasen’s view, ensuring some level of political equality is the compelling government interest in regulating large campaign expenditures by corporations and individuals. “The main problem with money in U.S. politics is the translation of vastly unequal economic power into unequal political power,” he insists. As Hasen sees it, “corruption,” the only justification the Supreme Court has accepted for regulating political spending, is too narrow a concept to justify the kinds of limits on political spending that are necessary to ensure that all Americans have a meaningful voice in the political process.
Given that the Court is currently a barrier to reform, what is the way forward? Congressional Democrats and some advocates are working to amend the Constitution. Hasen rejects these efforts, noting that it is exceedingly difficult to pass an amendment, or to write one effectively. Instead, he argues that reformers should continue to defend and pursue the changes that the current Court has held constitutional: disclosure, contribution limits, and most of all public financing.
There is much that can be done in these areas, and Hasen details only some of it. Just this past November,Seattle embraced a new public financing system and Maine strengthened its existing public financing program to ensure that candidates can remain competitive running under it, even after damaging Supreme Court decisions.
Seattle’s program is highly relevant to Hasen’s proposed solutions. City voters adopted a voucher program for local elections similar to what Hasen proposes for federal elections. Under the new law, each voter will be provided with four vouchers, each worth twenty-five dollars, that they may give to any participating candidate for city office. The system is intended to encourage voters to make small contributions and seeks to ensure that candidates rely on big pools of small donations, rather than a few big contributors. The Seattle and Maine laws were adopted in ballot referenda by wide margins, demonstrating that post-Citizens United, there is a real desire from many in the public to take decisive steps to change the current system.
Public financing is perhaps the single most important thing we can do to “level up” – by giving more power to everyday Americans. As public financing programs are still constitutional, it is not surprising that Hasen does not devote as much attention to them as he does to measures that could “level down” the influence of the wealthy. But given how many ways the super rich have to influence policy outside of the campaign finance realm (through lobbying, for example, or the prospect of highly compensated future employment), the “leveling up” opportunities are arguably even more important than the limits the current Court has struck down.
Hasen believes that the real solution lies in changes to the composition of the Supreme Court. New justices, who embrace a more nuanced view of the First Amendment, could do as much as, if not more than, any constitutional amendment to bring some sanity back to our campaign finance system.
In Hasen’s ideal world, these new justices would embrace “equality” as an important constitutional principle. As he concedes, a full embrace by five justices of a concept that the Court has previously and consistently rejected may not happen any time soon, even if a Justice Clarence Thomas or Justice Anthony Kennedy is replaced with someone more like a Justice Ruth Bader Ginsburg.
Fortunately, it may not be necessary for the Court to fully adopt the equality rationale. Previous majorities of the Court embraced a far broader definition of corruption, which allowed political spending to be limited to prevent money from distorting political outcomes. In the Court’s most recent campaign finance ruling, McCutcheon v. FEC, the four dissenting justices upheld this view, and took it a step further. They argued that reasonable campaign finance regulations can be justified to ensure that elected officials are responsive to the concerns of the general public (not just a privileged few) and to protect the integrity of elections.
Regardless of what theory a future Court might embrace, Hasen is correct that as inevitable and permanent as the current system might seem, big change to our campaign finance laws in the near future is not only possible, but quite likely. Four of the Court’s nine justices will be over 80 during the next President’s term. The public – as demonstrated in polls, as well as the recent victories in Maine and Seattle – is looking for solutions that will return power to everyday Americans and break what many perceive as the stranglehold of the elite and super wealthy over our political system.
The question, then, for all Americans, not just five current justices on the Supreme Court, is what we want our democracy to look like. The 2016 presidential election offers voters a rare chance to have a meaningful say in answering this question – and Hasen’s book is a cri de coeur urging us all to make the most of it.