Can Reformers Save Our Election System from the Supreme Court?

AP Photo/Susan Walsh

Cornell Woolridge of Windsor Mill, Md., takes part in a demonstration outside the Supreme Court in Washington, Tuesday, Oct. 8, 2013, as the court heard arguments on campaign finance.

Over the past few years, given the bad news that just keeps coming their way, America’s campaign-finance reformers have started to look like eternal optimists. They’ve pretty much had to be.

Take the one-two wallop they suffered early this spring. First, Governor Andrew Cuomo and New York state legislators killed reformers’ best chance of a breakthrough in 2014—a public-financing program in which small-dollar donations would be matched or multiplied by public funds. (New York City already runs its own “matching” program.) The idea was to give less-wealthy donors a bigger voice in legislative and gubernatorial races while decreasing the clout of those with deep pockets. Instead, reformers ended up with a microscopic pilot program for the state comptroller’s race. A few days later came much worse news: In McCutcheon v. FEC, the Supreme Court threw out the limit that Congress had put on the total amount wealthy donors can give to campaigns and political parties. While there are still caps on how much donors can give to a specific candidate, now anyone can give to as many campaigns as he or she pleases.

As they reeled from their latest setbacks, clean-election advocates tried to find a reason to be hopeful. Ian Vandewalker, counsel for the Democracy Program at the Brennan Center for Justice, which advocated for the New York proposal, told me that in the wake of McCutcheon, “public financing is the most promising thing that’s left.” But McCutcheon illustrated just what makes the Roberts Court so pernicious when it comes to money and elections; slowly but steadily, decision by decision, the justices are decimating every legal justification for reform.

Underpinning the Court’s infamous 2010 Citizens United ruling was the belief that giving less-wealthy donors more of a voice in elections is not a good enough reason for Congress to regulate political money. A year later, in Arizona Free Enterprise Club v. Bennett, the Court struck down a public-financing program that tried to decrease the power of wealthy “self-funded” candidates.   

The Arizona law offered grants to those who agreed to spend only $500 of their own money on their campaigns and agreed to debate their opponents. The funding increased as opponents and independent groups spent more; the idea was to prevent less-affluent candidates from being disadvantaged. The Arizona decision threw similar state programs into legal limbo. The Court decided the program was unfair to candidates who chose not to participate; in other words, candidates with more money to spend have a constitutional right to overwhelm their competition.

“Some people might call that chutzpah,” Justice Elena Kagan wrote in her dissent.

Even so, the Arizona decision left room for reformers to argue for a different kind of public financing system in the interest of quelling political corruption. McCutcheon put an end to that. The Court ruled that Congress and the states cannot justify limits on campaign donations because of concerns about corruption. In other words, if there isn’t a guy with a suitcase full of cash trading it for a lawmaker’s vote, it’s none of lawmakers’ concern.   

The blow from McCutcheon has dire implications for American democracy. But it should not mark the end of the reform movement. While continuing to pursue reforms that haven’t yet been quashed, activists and legal scholars now must step back and cook up new laws, and new justifications for those laws, that could pass muster with the Court. Harvard law professor Lawrence Lessig has been on a mission to fight originalism with originalism. The conservative justices base their decisions on a reading of the Founding Fathers’ original intent in writing the Constitution, so Lessig has been combing through the records of the framers, citing every use of the term “corruption” and showing how the Founders used the term to mean much more than “quid pro quo” bribery. Lessig writes that “corruption” encompassed “improper dependence” on the powerful as well. Trying to persuade the justices to change their minds may be an uphill struggle, but Lessig’s work may prove useful when new campaign-finance laws are defended in court.

Reformers’ fondest hope now lies with disclosure laws—a form of regulation the Supreme Court majority endorsed in Citizens United. Laws to make tax-exempt “social welfare” groups, which spend billions on elections, disclose their donors are percolating in the states. And in a demonstration of how un-killable the idea of reforming elections can be, some activists have come up with a new twist: If some groups are allowed to keep their donors’ names secret, why shouldn’t their political ads be required to say so? The idea is that when voters hear the words “This advertisement is sponsored by a group that does not disclose its donors,” it would make shadowy political groups look, well, shadowy.       



What's the problem?

If it's Constitutional to limit contributions to one candidate, and if people can spread their donations over many candidates, all they need is whatever jot and tittle it needs to limit total contributions to all candidates. Let everybody give voice -- with noise control overall.

Let the Koch Brothers give $1.93 to every right-wing dog catcher, squirrel catcher and garbage dump supervisor candidate running. Anywhere.


It's great to see this level of analysis of this issue in the Prospect, but um, no: The Court did not throw out Arizona's public financing system. It invalidated one component of it; the system survives and all statewide candidates and about 40% of legislative candidates participate in it. It's weaker, because it was designed around that provision matching opposition spending, but the core survives. And plenty of public financing systems, such as Connecticut's, work just fine without that provision.

And nothing in McCutcheon invalidated other small-donor public systems, such as New York's or Minnesota's. It's also not the case that "The Court ruled that Congress and the states cannot justify limits on campaign donations because of concerns about corruption." The Court specifically upheld contribution limits, even as the majority suggested they might take a narrower view of corruption in the future.

There's a lot of value in Lessig's legal approach, and other attempts to rethink the jurisprudence, but the most promising approach to offsetting the role of big money in politics -- even if the courts had never gotten involved at all -- remains in programs that use public funds or tax credits to empower small donors.

The major mistake in this article is that the conservative justices care a whit about original intent. How was it the original intent of the Founders to consider Corporations people? They didn't think black people were people with free speech -- or free anything! The Conservative justices just make up their justifications under whatever cover they can find so that they can consistently support the 1% and their interests. No argument about original intent will ever change their minds because original intent has no place in their decisions, only in the reason they give for their preordained decision. They will support any policy they think will give the Republican Party a short-term electoral advantage. Thinking that any argument about original intent or any other actual constitutional issue will make a difference is to live in a land of utter delusion.

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