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

In their latest ruling on campaign financing, the justices took the position that it’s none of their business.

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.
REUTERS/Larry Downing

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.

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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.”

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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.