The coming end of campaign finance reform
By David Schultz
The Daily Record Newswire
When, in the next couple of years, the Roberts Supreme Court strikes down the last remaining Watergate-era campaign finance laws, the question will be: Who is to blame? It will be easy for liberals to say it was the conservatives, especially those on the Supreme Court, the Republicans, or even the Koch brothers. But the reality is that the seeds of campaign finance reform’s demise lie in the very case that started it all — Buckley v. Valeo, 424 U.S. 1 (1976).
At issue in Buckley were the 1974 amendments to the Federal Election Campaign Act (FECA), adopted in light of the Watergate abuses of Richard Nixon’s 1972 presidential campaign. These amendments called for contribution limits on individuals and political action committees, and expenditure limits on campaigns and political entities such as parties. Yet most of the law never went into effect. In January 1976, the Supreme Court invalidated much of it, in the process articulating a framework of legal analysis that persists to this day.
The core of the Buckley analysis was simple: The “Act’s contribution and expenditure limitations both implicate fundamental First Amendment interests.” At no point in Buckley did the Court ever say “money is speech.” Instead it was more ambiguous, suggesting that money raised First Amendment concerns, that the use of money was neither pure conduct nor pure speech, and that money was linked to free expression, especially when it came to political expenditures. The Court offered a vague free speech rationale for protecting the role of money in politics, and it then provided an equally vague discussion of when its regulation would be permitted. The Court eschewed promoting equality as a compelling interest justifying restrictions on money, settling instead on preventing corruption and its appearance as reasons for limiting contributions — though not expenditures.
The problem here is that the Buckley rules were never clear. How is money related to speech? What is corruption or its appearance? Is it really possible to draw lines between political contributions and expenditures, and who is entitled to speak with money? All these are vague legal doctrines and over time, opponents of campaign finance reform have exploited ambiguity, perhaps correctly arguing that there was no principled way to draw lines that separate free speech from conduct.
Dating back to the Burger and Rehnquist Courts, cases such as First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), FEC v. National Right to Work Commission, 459 U.S. 197 (1982), and Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996) gradually chipped away at money regulations, with the Roberts Court fully exploiting the failures of the current regulatory regime under Buckley to provide satisfactory answers to the exact constitutional status of money in politics.
From its early days, the Roberts Court has steadily chipped away at campaign finance regulations. It did that in Randall v. Sorrell, 548 U.S. 230 (2006), Davis v. Federal Election Commission, 554 U.S. 724 (2008), Federal, Election Commission v. Wisconsin Right to Life Committee, 551 U.S. 449 (2007), Citizens United v. Federal Election Commission, 558 U.S. ___ (2010) and most recently in McCutcheon v FEC, 572 U.S. ___ (2014).
McCutcheon is remembered as the decision that struck down aggregate contribution limits, but its deeper legal importance is exactly as Justice Breyer pointed out in his dissent: It significantly narrowed the concept of what “corruption” means for the purposes of establishing a compelling governmental interest to regulate political contributions.
Expect to see the Roberts Court expand on its crabbed notion of corruption. A narrowed concept of corruption will be used eventually to invalidate individual contribution limits. The Court will no doubt first reject the appearance standard as vague and not as demonstrating real corruption. The next step will then be to argue that current standards to regulate real corruption are overinclusive — what is real corruption unless one can show real bribery? Or conversely, the Court will argue that any form of campaign contribution limit serves to chill speech, amounting to a form of censorship.
In either scenario, the Court will either have de facto ruled all contributions limits unconstitutional because there is no real evidence compelling enough to justify restrictions, or it will finally rule unequivocally that money is speech and therefore all limits on contributions violate the First Amendment. Barring some change in Court personnel, this ruling will come within a couple of years. Already there are many cases in the lower courts challenging direct contribution limits, such as in Seaton v. Wiener, Civil No. 14-1016 (DWF/JSM) (D. Minn. 2014), attacking potentially weak or poorly crafted laws that change contribution limits based on who the contributor is and how much money the candidate has already received.
So if Buckley dug its own grave, what was the alternative? The fundamental flaw lies in conceding right from the start that “contribution and expenditure limitations both implicate fundamental First Amendment interests.” For nearly 40 years the Court has shared a widely held assumption that money is a legitimate tool to allocate political power and influence in America, or that economic resources should be allowed to convert over into political influence. The Supreme Court’s campaign finance jurisprudence has been rudderless, devoid of a broader theory of democracy that defines the relationships between liberty, equality, money, and the First Amendment.
Economic markets and money may be great mechanisms to allocate sail boats and luxury items, but not political influence and democratic values. Money is great in its place, but there are limits to what money should buy. No one thinks that school admissions, grades, or jobs should be sold. Justice in court should not be allocated on the basis of ability to pay. There needs to be a wall of separation between money and many things we hold important. Democracies are not about one dollar, one vote.
The issue here is not one about the efficacy of money. By that, I mean the primary issue is not whether money makes a difference in terms of who is elected or who has political influence. One could debate forever whether money buys influence or corrupts, and this is where the legal debate on campaign finance is wrongly centered. The issue should be whether money should be the criterion by which political power or influence is allocated.
Justice Rehnquist, writing in dissent in First National Bank of Boston v. Bellotti, recognized the illegitimate drive of corporations to want to convert their economic resources into political power. He declared: “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” And in Federal Election Commission v. National Right to Work Committee, the Court quoted the federal government’s brief in that case that the purpose of limiting money in politics was “to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests’ which could be used to incur political debts from legislators who are aided by the contributions.”
What these comments from the Supreme Court suggest is a recognition that money used for political purposes needs to be limited. Politics in general, and campaigns and elections in particular, may be expensive, and money may be necessary to run campaigns and elections, but their costs or funding sources should not undermine democratic values. The problem of the Court’s decisions on money in politics is that the justices failed to understand how a democratic system derives its legitimacy from political equality.
Allowing the allocative criteria of the economy to substitute for equality in the political arena gives money and wealth a role that it just should not have in American democracy.
