One Perspective: Money v. Democracy and the coming death of disclosure

 David Schultz, The Daily Record Newswire

The battle over money and politics did not end with the McCutcheon case. Instead, that recent Supreme Court decision is only a small skirmish in the larger war by some en route to their ultimate objective — neither limits on the amount of money spent for political purposes nor any disclosure. Their real goal is to let money rule, and without accountability.

In McCutcheon v. F.E.C., the Supreme Court struck down aggregate political contribution limits that individuals can contribute to candidates and parties. At the core of the McCutcheon is the argument that all individuals have a right to expend unlimited money for political purposes. Because of that right, federal laws that limit individuals to contributing approximately $123,000 per year to candidates and political parties violated their right to free speech.

Who knew that such a cap was so suppressive and chilling of free speech? At least this is what the Roberts Court wants us to believe. We should all rejoice in our newfound freedom to spend as much as we want to affect the political process. Yes, now the rich and poor equally have the right to spend more than $123,000 per year for political purposes much in the same way that writer Anatole France once said that the rich and poor were equally free to sleep under a bridge.

But the Supreme Court offered some solace in that decision, asserting that laws could be enacted that would provide for how such money is spent. In making this argument, the court essentially asserted what many critics of campaign finance have argued for years — that we should take all spending and contribution limits off of the use of money in politics and replace it with a disclosure-only regime.

The battle against limits on the use of money to affect campaigns and elections is as old as America’s political system. Yet the modern battle lines were drawn in 1974, when Congress passed the Federal Election Campaign Act (FECA). FECA sought to overcome the abuses that came to light via Nixon and Watergate. Among the major provisions of FECA, expenditure limits on candidates and political parties, contribution limits on candidates, parties, and political action committees, and overall aggregate contribution limits for these same entities. Just a couple of years later, in 1976, the Supreme Court ruled in Buckley v. Valeo that money expended or contributed for political purposes in campaigns and elections implicated First Amendment free speech concerns. The Court then ruled that only preventing corruption or its appearance justified contribution limits. The Court ruled in Buckley that mandatory expenditure or spending limits were unconstitutional on First Amendment grounds. Finally, in Buckley, the Court upheld disclosure rules, contending that the practice served numerous goals, including compliance with the law and discouragement of efforts to circumvent contribution limits.

Since Buckley the Supreme Court has walked a checkered path regarding contribution limits and disclosure. Gradually, though, it has proved itself —especially under the Roberts Court — to be hostile to all efforts to reform the way money has been spent for political purposes. Over time the court has loosened restrictions on independent expenditures, political parties, and third party groups, undone limits on corporate spending — and now, with McCutcheon, struck down aggregate spending limits. All that is really in place now are bans on direct corporate contributions to candidates, individual limits to candidates, and restrictions on foreign nationals or parties seeking to contribute to campaigns.

There is no question that many conservatives want to see at least these first two contribution limits overturned. They have already been challenging these limits for the past several years, and now, following the 2010 Citizens United and 2014 McCutcheon decisions, they can taste victory. The Roberts Court has proved consistently hostile to any contribution limits and with test cases being brought across the country, it is perhaps only a matter of time before the Supreme Court concludes that all contribution limits are unconstitutional. In effect, the dream of a Court that fully embraces the idea that money is speech for First Amendment purposes is near.

But throughout this litigation, opponents have argued that what they would like to see is simply a disclose-only regime. These individuals, including Bradley Smith (former Federal Election Commission chair), Republican lawyer James Bopp, Jr., and John Samples of the Cato Institute, long supported disclosure-only. Perhaps consistent with Justice Brandeis’ assertion that “Sunlight is said to be the best of disinfectants,” their claim was that disclosure would solve most of the problems with money in politics. Nice theory, but it does not work in practice.

First, as I point out in “Election Law and Democratic Theory,” there is little sense of what disclosure-only means. What is to be disclosed, how, and when? Second, some proponents contend that disclosure will deter bad behavior. There is little or no evidence to sustain this claim. If voters do not like how money is being spent, they have no real tools at their disposal to punish candidates or unelected groups or individuals. Finally, disclosure-only accepts the legitimacy of the idea that money should determine the scope of someone’s free speech rights and constitutes a reasonable means of allocating political power.

But perhaps the biggest problem with advocates of disclosure-only is their hypocrisy. Over the last few years Smith, Bopp, Samples and others have been attacking disclosure, contending that such laws haze or chill the free speech rights of individuals. They point to circumstances in which rich donors were criticized or businesses like Target Corp.were boycotted because of their decision to make political contributions. Somehow we need to pity the rich and corporate as persecuted minorities, unable to protect themselves. Thus, disclosure rules that were once seen as a check on abuses of money in politics are now being portrayed as a violation of free speech. Justice Clarence Thomas takes this position.

Why the hypocrisy? It’s quite simple — these individuals want the right to spend as much money as they choose and they do not want anyone to know who they are. They reject the concept of transparency and openness in a democratic society, preferring to hide in the dark. In short, they want all the privilege and power that comes with money but they do not want to be accountable for their behavior. This is the classic hallmark of authoritarianism –unchecked and unaccountable power. This new attack on disclosure is anti-democratic.

So look beyond McCutcheon and one will see an agenda hostile to democratic accountability. It is one that wants to create a new plutocracy in which money rules without accountability. It is a theory of democracy that enshrines capitalism and the power of money in the First Amendment, creating a political system for the few who can afford to give more than $123,000 per year.