Should the Supreme Court decide what’s good or bad for democracy?

REUTERS/Larry Downing
U.S. Supreme Court Chief Justice John Roberts and his colleagues just ruled that Congress lacks the constitutional power to set a limit on the total amount that one individual can contribute to candidates or partisan campaign committees.

In the 2012 election cycle, according to the Sunlight Foundation, 28 percent of political contributions originated with a group of donors who constitute not 1 percent of the population but less than 1 percent of 1 percent (that’s one ten-thousandth) of the population.

Is it good for democracy in America or is it bad for democracy to have a relatively small number of super-rich individuals provide a vastly disproportionate share of the funding of candidates for public office? Call me a Bolshevik, but I say it’s bad for democracy.

Is it likely or unlikely that candidates whose campaigns are financed disproportionately (we’re talking vastly disproportionately) by a relative few billionaires will end up giving disproportionate attention to the policy views and to the personal and corporate economic interests of those donors? Call me a cynic, but I say likely (and I mean more than just likely).

U.S. Supreme Court Chief Justice John Roberts and his colleagues — who just ruled in McCutcheon et al vs. the Federal Election Commission — that Congress lacks the constitutional power to set a limit on the total amount that one individual can contribute to candidates or partisan campaign committees — did not take a position contrary to my bad-for-democracy position above. They just took the position that it’s none of their business what’s good or bad for democracy. Their business is enforcing the limitations that the U.S. Constitution imposes on the powers of Congress to legislate what Congress thinks is good for democracy.

But it turns out that the U.S. Constitution also doesn’t care what’s good or bad for democracy. I mean really doesn’t care. If by “the Constitution” we mean the actual text of the Constitution and its amendments, then the Constitution expresses no view on the issue. The Constitution barely mentions democracy or elections. It mentions political campaigns and campaign finance not at all. It expresses concern about wealthy Americans exercising disproportionate influence even less than not at all.

You might think that the Constitution says that “money is speech” or that “corporations are people,” but the text expresses no clear view on those matters either. Those are just things that previous Supreme Courts have divined. If you think the Supremes divined wrongly, there’s not an easy fix. The justices do not come up for reelection.

You might think that the Constitution says it’s up to the Supreme Court to decide what the Constitution means when questions arise that the words of the document don’t clearly answer. Actually, no it doesn’t. There’s not a syllable in the document that establishes the “supremacy” of the judiciary, the least democratic branch of the federal government, over the actions of the other two (more democratic) branches. It was a previous Supreme Court that divined the judicial supremacy of itself in the generally worshipped but amazingly corrupt early case of Marbury vs. Madison. (Details of why I call it corrupt are here.)

Money is speech

So back to the McCutcheon ruling. It started from the previous judge-made rulings that money is speech (really what the court said was that money is necessary for certain kinds of speech, including political speech, and therefore the contribution of money to be used for political speech was protected by the First Amendment ban on “abridging the freedom of speech”). And because money to pay for political speech is thus protected, it can be limited only for the purpose of preventing corruption (or the appearance of corruption), the Supremes have ruled previously and again last week. And corruption is not defined as a situation in which a relative few citizens hold vastly disproportionate influence but a situation in which candidates are explicitly selling their support for particular measures in exchange for campaign donations on a “quid-pro-quo” basis.

There may be other undesirable but lesser forms of corruption induced by money in politics, according to the ruling Supreme Court doctrine, but those are not so serious as to justify any impingement on the First Amendment rights of very wealthy donors to “speak” without speaking but by giving unlimited sums (in aggregate) to political candidates and party campaign committees to spend (actually, when you think about it, not exclusively or necessarily on speech, but on any of their campaign expenses).

I was persuaded by the testimony of Jim Meffert (rendered in my post of Monday) that the McCutcheon opinion’s description of the quid-pro-quo-iness of current campaign finance norms was not well tethered to reality.

But I am also impressed with various learned arguments along the lines that the effect of McCutcheon may not be all bad. After all, the court’s previous interpretation of the Constitution’s (non-existent) meaning in the areas of campaign financing (referring here, for example to the Citizens United ruling) had already created a system in which a properly motivated billionaire could pour unlimited sums in a political campaign. Some argue that under the new McCutcheon rule, less political money will flow through super-PACs and more will flow through actual candidate and party campaign committees, which will make it easier to know where the money comes from and easier to hold the candidates accountable for their messages.

Maybe so. Maybe some of that will be a marginal improvement over the current norms, which are more loophole than law.

But if so, Roberts tell us, it is not his intention or his privilege to accomplish any such slight improvements. He goes out of his way to cite previous judge-made principles that the court mustn’t regulate campaign finance (or, as Roberts called it, “suppress campaign speech”) to accomplish such objectives as “level[ing] the playing field” or “level[ing] electoral opportunities” or “equalizing the financial resources of candidates.”

Maybe some are worried that too much money flowing to campaigns from too many well-heeled interests might ingratiate donors with the members of Congress or buy them a level of access that non-donors seldom achieve. Roberts does not dispute that this may occur. But Roberts is explicitly not trying to do anything about it, specifying that “Ingratiation and access … are not corruption.” So far is it from his rationale, the Roberts ruling doesn’t even mention that some might consider it a worthwhile goal to reduce the influence of money over politics.

This is what meant when I wrote at the top that as the court sees its role and as it sees the Constitution, the exercise is not about making democracy work better in any generalized way.

Martian jurisprudence

I didn’t attend law school. My approach to constitutional matters is more historical than legal. But I did once audit a constitutional law course. When the professor taught us the hideous case of Plessy v. Ferguson, the professor described it as an example of what he hilariously called “Martian jurisprudence.”

Louisiana had strict racial de jure segregation in the 1890s, including segregated rail cars, notwithstanding the existence in the 14th Amendment of language requiring that all citizens be afforded “equal protection of the laws.” The Supreme Court ruled that segregated rail cars did not violate the guarantee of equal protection. The white people had a rail car. The black people had a rail car. What could be more equal than that? (This is where the famous, now repudiated, doctrine of “separate but equal” came from.)

If you were a Martian, making your first trip to Earth, this might strike you as reasonable. If you were an Earthling, you would know that the reason for the separation of the races in rail cars, in schools, in restaurants and otherwise was a clear, powerful expression of the doctrine of white supremacy and was the latest expression of the belief that black people were inferior. By 7-1, the Supreme Court decided to look at the case through Martian eyes.

Comments (11)

  1. Submitted by bruce fisher on 04/08/2014 - 11:42 am.

    Justice Breyer

    In his short book(129p), ACTIVE LIBERTY, Justice Breyer makes a cogent case for democracy is the filter the court should use to decide cases brought before it. In regards to free speech, federalism, privacy, the court should take into account the affect the case will have on Democracy. Does it aid or hinder it? I don’t think the majority in McCatcheon saw it that way, or even cared.

  2. Submitted by Ron Gotzman on 04/08/2014 - 03:11 pm.

    We alreday know that!

    Eric, what campaign laws are you proposing? What changes to the current system would you recommend?

    I think we all agree that the current system of campaign finance is filled with contradictions and is ripe for corruption. I know of no one who defends the current situation of restrictions and regulations regarding campaign finance.

    Please give some suggestions that you think would work.

    PS. How many lobbyists does education MN have at the state capital?

  3. Submitted by Paul Brandon on 04/08/2014 - 03:51 pm.

    The question is

    Do we do what appears to be to the country’s immediate benefit,
    or do we do what will preserve our basically good system in the long run, even at the cost of not dealing with an immediate inequity.

  4. Submitted by Dennis Tester on 04/08/2014 - 05:09 pm.

    Other than the equal protection clause

    of the 14th amendment, it’s not the role of the federal government, and certainly not the supreme court, to ensure or even concern itself with “equity” amongst the citizenry.

    That’s supposed to be a benefit of living in a free society.

  5. Submitted by Jeff Schwartz on 04/08/2014 - 05:18 pm.

    Start at the beginning

    The entire SCOTUS reasoning is specious sophistry and it starts from the beginning. Money is not speech. If it were then according to our own Constitution there could be no restrictions on foreign persons or foreign governments from participating.

    What I have always said is that money is comparable to voting. In which case:

    1. Someone can donate only to those politicians for whom one can vote.

    2. Businesses and unions cannot vote (as least not yet) and thus cannot donate. However, the legal voters who form the businesses and unions could donate to those politicians that every single voter comprising the fund could vote. E.g. all legal US voting employees of Target could contribute to a fund that donates to the presidential race but not to a particular House of Representatives race since not all employees of Target live in the same Congressional district. But if Target wishes to administer separate funds for the different political entities then employees could contribute to those funds where they were entitled to vote.

    3. But how does that co-exist with political parties which obviously cross geographic boundaries? Parties cannot give financial support?

    An interesting thought experiment. Even if it’s the correct interpretation it’s about as likely to be implemented as I am to become king.

  6. Submitted by chuck holtman on 04/08/2014 - 06:12 pm.

    Leaving aside a relitigation of Marbury v Madison,

    Before Buckley v Valeo there was a substantial body of Supreme Court jurisprudence reasoning that the core of the 1st Amendment was political speech and the core of 1st Amendment protection was the importance of free political speech to self government.

    Therefore, the Supreme Ct very much decides what is good or bad for democracy, since a finding that certain speech will be bad for democracy is the quintessential “compelling interest” that under long-standing constitutional doctrine justifies limiting that speech. Buckley turned this on its head by saying that if certain forms of speech and self government are in conflict, self government must be sacrificed. This is why Buckley is on the short list of the worst Supreme Ct decisions ever, with all of its progeny up to McCutcheon piling up right behind it.

  7. Submitted by Ilya Gutman on 04/08/2014 - 08:37 pm.

    A question

    I just wonder: Is it legal for me to stand on Hennepin Avenue a day before election and offer people $100 with the condition that they would vote for a certain candidate (provided I am not that candidate)?

    • Submitted by Dennis Tester on 04/09/2014 - 01:15 pm.

      I don’t know about $100

      but I know it’s been done with cartons of cigarettes. I suppose the market value of a vote depends on the neighborhood you’re “campaigning” in.

  8. Submitted by Jon Kingstad on 04/09/2014 - 07:54 am.

    Constitution and democracy

    Should the U.S. Supreme Court decide what’s good and bad for democracy? That question was answered in Marbury v. Madison and is now an integral part of the Constitution itself. So the question should be what standard ought the Supreme Court use to decide what is good and bad for democracy?

    Chuck Holtman nails it when he identifies the constitutional doctrines and issues involved. I completely agree that Buckley v. Valeo and its progeny up to McCutcheon are right up there with Dred Scott as being among the very worst US Supreme Court decisions. The Court has boxed itself into a corner as it did with the also terrible Lochner and “liberty of contract” decisions in the late 19th and early 20th centuries. These also undermined democracy by favoring capital and the rich at the expense of labor and workers with doctrines that disfavored unions and government regulation of business.

    The only cure that I see is the replacement of the mediocrities on the Court who gave us McCutcheon with jurists who understand the Court’s role as maintaining not undermining democracy.

    • Submitted by Paul Brandon on 04/09/2014 - 09:17 am.

      The court’s role

      is to maintain democracy by ensuring that the enforcement of the law is consistent with the Constitution, not by direct political action.

      • Submitted by Jon Kingstad on 04/09/2014 - 09:20 pm.

        Direct political action

        I don’t think I said or implied that the Court had such a role. But the Constitution is document that bears interpretation. I has been interpreted to reflect “democratic values” and so I say it should be in the future. I think it’s possible to identify those decisions or trends in judicial interpretation which are un- or anti-democratic. For example, Buckley v. Valeo down to McCutcheon. And certainly including Bush v.Gore in that mix as well.

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