Moneyed Speech

IN ITS SEEMINGLY endless quest to attack the few remaining pillars of our campaign finance laws, the Supreme Court issued a brazen ruling in McCutcheon vs. FEC, striking down the aggregate contribution limits that capped the overall amount individuals could give to candidates and political parties each election cycle. As it was with Citizens United—the 2010 decision that said corporations and unions could spend unlimited amounts—the court’s April ruling was striking not only in its naiveté about the effect of money in politics, but in its naiveté about the nature of the American experiment itself.

Whereas Citizens United focused on the nature of corporate spending in elections, this decision cuts straight to the chase. Should wealthy people have a greater ability to fund political parties and candidates—and benefit from the greater access and influence that awards them? The court sent a clear message about where it stands: Yes, they should. Chief Justice John Roberts, writing for the majority, even cloaked the decision in pious language, stating, “if the First Amendment protects flag burning, funeral protests, and Nazi parades ... it surely protects political campaign speech despite popular opposition.”

Traditionally the court has asserted that the government has an interest in preventing corruption and the appearance of corruption, the latter in order to sustain public faith in the democratic process. However, the McCutcheon decision defines “corruption” so narrowly that the original statute is essentially useless. The government can no longer prevent the appearance of corruption, and it would have a difficult time proving “quid-pro-quo corruption” occurred in the first place

But despite this disheartening fact, there’s a glimmer of hope. One of the unintended effects of Citizens United was that it created a major “teachable moment” for the public about campaign finance—an issue that had previously gained little attention and was easily misunderstood.

That moment sparked citizen activism and new debates about the nature of money in politics. More than 560 anti-Citizens United local and state resolutions and ballot initiatives emerged, and even Republicans began expressing greater concerns about where the system was headed. McCutcheon will pour more gasoline on those fires.

New energy will have to fuel concrete victories in the future—specifically legislation at the state and local levels to build momentum for national reform. Simultaneously, to make sure such victories hold up, a new jurisprudence will have to be established to return us to the common sense that the courts recognized for most of the last century—acknowledging that the government has a strong interest in regulating the flow of money in politics and policymaking to limit corruption and encourage a government by all.

In his dissenting opinion on McCutcheon, Justice Stephen Breyer laid out a lucid argument that expressed just this: “The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters,” Breyer wrote. “Where enough money calls the tune, the general public will not be heard.”

Breyer’s vociferous dissent also shows that even a simple one-justice alteration in the court’s composition could yield utterly different outcomes in the future. Such strong opposition predates McCutcheon—it was present in previous cases where justices Stevens and Kagan dissented in a similarly definitive fashion. It’s clear that the justices who were outvoted on the court in these decisions would be more than willing to revisit these rulings and return our democratic system to where it once was.

But who knows when the makeup of the Supreme Court might change. In the meantime, we all need to underscore what the justices who ruled in McCutcheon’s favor don’t understand: The more we hand control of politics and policymaking over to a handful of the wealthiest Americans, the less America can truly call itself a democracy. 

Nick Penniman is executive director of the Fund for the Republic.

Image: Tunnel of $100 bills, Nomad_Soul / Shutterstock.com

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