EMPOWERING CONGRESS TO MAKE LAWS TO GOVERN CAMPAIGN FINANCE
If you believe that our democracy only works when all citizens are given an opportunity for their voices to be heard, you were likely dismayed when in 2014, by a 5-4 vote, the Supreme Court declared that an elected representative’s “responsiveness to [the] concerns” of his or her wealthiest contributors “is at the heart of the democratic process” and “key to the very concept of self-governance through elected officials.” However, those who disagree with the Supreme Court’s declaration that the Constitution protects the right of the wealthy to buy a government responsive to their needs must remember that this declaration reflects a relatively recent retreat from the Supreme Court’s previous decisions upholding campaign finance laws. It is crucial that advocates develop a long-term strategy to reverse these recent Supreme Court campaign finance decisions, including developing a new jurisprudence and advancing a constitutional amendment, while at the same time pursuing current opportunities for reforms to give ordinary citizens a voice in our democracy.
When the Supreme Court in Citizens United invalidated a prohibition on corporate independent expenditures in 2010, it had to expressly overrule its 1990 decision in Austin v. Michigan Chamber of Commerce, which upheld the constitutionality of a prohibition on corporate independent expenditures. In Austin, the Supreme Court said the government could enact a law for the purpose of preventing a corporation from taking “an unfair advantage in the political marketplace” through the use of its wealth “amassed in the economic marketplace.” Citizens United similarly overruled much of the Supreme Court’s 2003 decision to uphold virtually all of the reforms Congress enacted as part of the Bipartisan Campaign Reform Act in McConnell v. FEC. Citing what was by then almost a half century of decisions, the Supreme Court there noted that:
Many years ago we observed that to say that Congress is without power to pass appropriate legislation to safeguard ... an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection. We abide by that conviction in considering Congress’ most recent effort to confine the ill effects of aggregated wealth on our political system.
It was only after Justice Sandra Day O’Connor—who supported campaign finance reform legislation— stepped down from the Supreme Court in 2006 that the Supreme Court’s concept of democracy began to change, and it began to embrace a view of democracy distorted by wealth, leading to it overrule all or part of several previous decisions and ignore the rationale of others.
We need to continue our work to enforce and expand existing disclosure rules and coordination laws to expose the sources of dark money and break the connections between super PACs supported by wealthy individuals and the candidates they support. Much of this work is taking place on the state and local level, where citizens are demanding reform.
Thus, the admonition of Justice Jackson that the Supreme Court is “not final because we are infallible, but we are infallible only because we are final” is both comforting in its recognition that the Supreme Court is not always correct and, at the same time, not completely accurate. The truth is that a Supreme Court ruling on a matter is final until the Supreme Court can be convinced to change its mind. It has happened before and will happen again.
Working to that end, while maximizing current opportunities for reforms that give more people a voice in our democracy, must be our goal.
Limiting the Damage and Finding New Opportunities
In order to limit the damage of recent Supreme Court decisions, we have to implement a strategy embracing both legislation and litigation to strengthen the areas of the law where the Supreme Court had been more supportive of reform. For example, the Court continues to be very supportive of disclosure laws. Likewise, the Citizens United decision allowing corporations to make independent expenditures assumes that those making such expenditures will be acting truly independently of the candidates. Nowhere has the Court ever suggested that candidates must be allowed to establish, fundraise for and have a close working relationship with, super PACs and other organizations claiming to make “independent” expenditures on their behalf. Nevertheless, such relationships have become the hallmark of today’s campaigns.
We need to continue our work to enforce and expand existing disclosure rules and coordination laws to expose the sources of dark money and break the connections between super PACs supported by wealthy individuals and the candidates they support. Much of this work is taking place on the state and local level, where citizens are demanding reform. These efforts must be supported with expert legal resources to ensure that the best cases are brought under current laws and new laws are drafted to maximize the likelihood that the current Supreme Court will find them constitutional.
Changing the Supreme Court
Of course, it would be naïve to expect the current Supreme Court to change its fundamental view that the First Amendment creates constitutional right to buy influence and access in a democracy. It could happen, but we shouldn’t bet our democracy on it. That said, the composition of the Supreme Court will eventually change. Therefore, it is important to ensure that the selection process for new Supreme Court justices, as well as lower court judges, focuses on the potential jurist’s views regarding the power of money in elections and the people’s interest in expanding participation in our democracy.
Preparing for a Better Court
Changing the Supreme Court is only a start. We also have to ensure that we are prepared to make the best arguments and present the courts with a new and compelling legal framework and analysis that supports the reforms needed to heal, expand and protect our democracy. This requires us to continue to develop a new jurisprudence and a litigation strategy to bring the cases to present that jurisprudence to the Supreme Court when it does change. This work has to be supported by experienced lawyers, reform advocates, legal scholars and public policy experts. And to help increase the odds of future success, we have to open the minds of the generation now studying law and public policy to the ways in which the laws and policy choices can support a democracy that encourages greater participation.
Finally, a perhaps most importantly, success will also require educating the public as to the true meaning of the Constitution and the rights it provides all Americans, as well as the tools and arguments to demand those rights. Fortunately, much of that work has already begun, but there is still much more to do.
A Constitutional Amendment
Despite what the current Supreme Court says, our current Constitution not only supports, but requires, laws that prevent our democracy from being responsive to only the wealthiest interests. But if the Supreme Court cannot be convinced of that simple proposition, we will have to look to changing the Constitution to make even clearer what the Supreme Court refuses to see: if a citizen’s ability to exercise constitutional rights is dependent upon wealth, then only the wealthy truly possess those constitutional rights.
Success will also require educating the public as to the true meaning of the Constitution and the rights it provides all Americans, as well as the tools and arguments to demand those rights.
That is why efforts are already underway in the states and at the national level to amend the Constitution to make it clear that it is individuals who have First Amendment rights, and the exercise of those rights are not dependent on wealth. Even though there is already widespread support for a constitutional amendment, getting an amendment passed is a long and difficult process. And once an amendment is enacted, there will be a pressing need to pass laws and develop a jurisprudence to ensure the new amendment is properly interpreted and applied. Fortunately, the work that must be done to save our democracy absent an amendment to the Constitution can also serve as the foundation for the laws and legal analysis that will serve an amended Constitution.
Strengthening what already exists
There is no endgame in the struggle to ensure that our leaders are selected by Americans speaking at the ballot box and not by the few whose money, if unrestrained, will shape our electoral choices and the decisions our leaders make. The fight to limit the corrosive and corrupting influences that large aggregations of wealth have on our democracy has been going on for well over 100 years. During that time, there have always been periods of major scandals and abuse, followed by periods of major reforms. The truth is, no matter how successful the reform efforts are at any given time, those who have the most to gain by a political system responsive to wealth will always look for new ways to gain back their power.
But the efforts to dominate our democracy eventually reach a point where it also becomes clear to most Americans that the resolution of the issues they care about depends on controlling the power of money in elections. Each generation learns that our republic cannot survive if our elected leaders are mainly responsive to the wealthiest among us, and that it has to be willing to constantly work to keep the power of money in check. Building on previous reforms that worked, learning from what did not and adapting to evolving culture, law and technology, new reforms must be crafted and enacted. This requires commitment, resources, tenacity and learning how to work with whatever tools and opportunities we have, while designing new tools and creating new opportunities to advance the principles and practices of a democratic government. It is a fight that takes place at the intersection of democratic ideals and political reality.
The fight to limit the corrosive and corrupting influences that large aggregations of wealth have on our democracy has been going on for well over 100 years. During that time, there have always been periods of major scandals and abuse, followed by periods of major reforms.
What can be thought of as the modern era of campaign finance reform was a result of the Watergate scandal in the early 1970s, which culminated in the resignation of President Nixon in 1974. While the scandal began with the break-in at the headquarters of the Democratic National Committee in the Watergate office building, the resulting investigation exposed a major money-in-politics scandal involving the funding of President Nixon’s reelection campaign. Having just enacted the Federal Election Campaign Act of 1971, Congress revisited the law in 1974 and created a comprehensive campaign finance system that included contribution and expenditure limits, stronger disclosure rules, public funding for the presidential election and created the FEC to enforce the law. In 1976, in Buckley v. Valeo, the Supreme Court upheld the contribution limits, but struck down the limits on candidate expenditures (outside of public funding) and independent expenditures. Congress reenacted the law in 1976, incorporating the Supreme Court’s new framework distinguishing between contributions and expenditures. At the same time, many states began to enact their own campaign finance reforms to govern state elections.
While far from perfect, these laws did bring about major improvements in the campaign finance system over the next 20 years. However, some enforcement agencies, often designed to be weak and subject to political pressure through the appointment of commissioners and control of their budgets, were too willing to go along with candidates, political parties, PACs, corporations, labor unions and wealthy donors who were constantly searching and probing for ways to get around the law’s limits on their ability to buy access and influence. Things came to a head with the “soft money” scandal in the late 1990s, prompting Congress to pass the Bipartisan Campaign Reform Act of 2002 (BCRA), which resulted in new reforms to the campaign finance system. All of the major provisions of this sweeping law were upheld by the Supreme Court in 2003 in McConnell v. FEC. Then, in 2006, Justice Sandra Day O’Connor, a strong supporter of the campaign finance laws and a crucial fifth vote in campaign finance cases, resigned from the Supreme Court. She was replaced by Justice Samuel Alito, and the Court’s jurisprudence began to change.
Each generation learns that our republic cannot survive if our elected leaders are mainly responsive to the wealthiest among us, and that it has to be willing to constantly work to keep the power of money in check.
Since 2006, in a series of 5-4 decisions, the Court has narrowed the definition of corruption, overruled prior Supreme Court cases upholding campaign finance restrictions (including portions of McConnell), declared that corporations have a constitutional right to make unlimited independent expenditures and struck down the aggregate contribution limits. At the same time, the FEC has become mired in deadlocks and inaction, and some state campaign finance agencies have come under attack. The result has been elections dominated by unlimited contributions by a few wealthy individuals and corporations, often hiding behind secretive nonprofit organizations.
It is now time to redouble our efforts and once again rebuild and strengthen the foundation of our democracy.