This blog post appeared originally on the American Constitution Society law blog on October 6, 2016. For the original posting, click here.
Why do we want to limit the influence of money in politics and what do we tell the courts? For 40 years, since the Supreme Court’s 1976 Buckley v. Valeo decision, the legal arguments for limiting big money in politics have been compelled to focus on “corruption” as the only reason.
Not anymore. On Wednesday, Free Speech For People (along with partners Indian Law Resource Center, American Independent Business Alliance, American Sustainable Business Council and retired Montana Supreme Court Justice James Nelson) filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of the state of Montana’s campaign contribution limits against a challenge led by noted campaign finance reform opponent James Bopp. The amicus brief advances a political equality argument. The district court had chastised Montana’s voters, who passed the contribution limits by a 1994 ballot initiative, for trying to achieve political equality.
As background, the Supreme Court’s campaign finance precedent has long insisted that limits on political contributions must be grounded in concern about “corruption” and its appearance. In years past, justices with a pragmatic sense of political reality understood “corruption” to include broader concerns of influence and access; more recently, the Roberts Court constrained it to just mean “quid pro quo” corruption, not much more than bribery. And certainly corruption is one legitimate concern.
But that is not the only, or perhaps even the main, reason that Americans want to limit the influence of big money. A more fundamental principle is political equality. This concept has been part of our constitutional history since before we had a Constitution. “We hold these truths to be self-evident, that all men are created equal,” not equal in assets or abilities but in their unalienable right “to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” So wrote Thomas Jefferson in the Declaration of Independence. And when the Constitution was submitted for ratification by the states, James Madisonassured hesitant readers, worried that Congress would be dominated by the wealthy, thus: “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.”
In the 1960s, the Supreme Court derived the “one person, one vote” principle from the forward march of “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth and Nineteenth Amendments.”
Does this conception of political equality have anything to do with money in politics? WhenBuckley was on its way to the Supreme Court, the D.C. Circuit certainly thought so. As the en banc court explained, “[o]urs is a nation that respects the drive of private profit and the pursuit of gain, but does not exalt wealth thereby achieved to undue preference in fundamental rights.” And by that logic, “[i]t would be strange indeed if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money and because the amounts they give and spend cannot be limited.”
Of course, the Supreme Court took a different route, which ultimately led us to Citizens United v. FEC, super PACs, unlimited secret money and a barely functional democracy that is hard to square with the fundamental principle of political equality. But that may about to change.
As an idea, political equality never went away. Just a few years after the Buckley decision, Judge J. Skelly Wright of the D.C. Circuit wrote an influential law review article asking if the First Amendment really was an obstacle to political equality, as the Supreme Court seemed to think. Over the years, academic research continued to develop the theory, as a sort of “jurisprudence in exile.” And new lenses, such as race, were brought to the analysis. Furthermore, in recent years, think tank analysis has brought into focus the practical consequences of political inequality for economic mobility and racial equity and how unrepresentative donor classes dominate politics and policy even in local races.
But as a legal argument, advocates tended to avoid political equality, given the composition of the Court.
The time has come to advance political equality in the courts. Our brief argues that political equality is a fundamental constitutional value and that the court should accept it as a compelling government interest or at the very least, even if the state is forced to defend its contribution limits on a “corruption” theory, the public’s democratic discourse should not be so limited. Put simply, political equality is a first-class constitutional value and the people should not be chided for stating what the Founders held self-evident, nor for stating in a voter pamphlet what the author of the First Amendment wrote in the canonical “voter pamphlet” for the Constitution itself.
Our brief also argues that the political contribution system, if unchecked, empowers a “donor class” that is disproportionately wealthy, white, older and male. This donor class conducts an unofficial but very real “wealth primary” that filters out candidates from serious contention who are neither themselves wealthy nor appeal to wealthy funders. This has especially harsh effects on people of color, women and young people, who have less access to these donor networks. In Montana, for example, where the Native American poverty rate is more than double the state average, Native American candidates (who face other barriers to running for office as well) have a harder time fundraising. This exclusion from private, informal meetings or networks of donors may even constitute “the exclusion of members of the minority group from candidate slating processes,” a factor in ascertaining Voting Rights Act violations. Interestingly, Montana simultaneously has the highest percentage of Native American representation in state office and one of the lowest statewide campaign contribution limits.
For 40 years, the Supreme Court has looked askance at political equality as a public interest in limiting the influence of big money in politics, even as empirical research has demonstrated how political inequality harms democracy. That may be ready to change. We are excited to put the political equality argument into the courts and present the issue for potential Supreme Court consideration.