05/02/2014 02:32 pm ET Updated Jul 02, 2014

McCutcheon's Contradictions

The recent McCutcheon v. Federal Elections Commission decision pushed the Supreme Court's aggressive attack on campaign finance reform further than it has ever done. In this case, it struck down aggregate limits to individual private donations. Limitations do remain in place concerning how much money an individual can give to specific candidates. But the Court ruled that restrictions on the overall amount that donors can provide to campaigns, parties and political action committees are unconstitutional. Given the number of candidates for federal office, and above all the myriad PACs in existence, this ruling means that the super-rich are now free to spend as much as they want in their efforts to shape the political landscape.

In its justification for unleashing what will prove to be a tidal wave of political wealth, the Court resorted to the same reasoning that has driven its decisions in the past. Its doctrine is that the only constitutionally acceptable justification for limitations on contributions is to curb corruption or the appearance of corruption. In this, its definition of corruption is exceedingly narrow: only an explicit quid pro quo passes the test. Any other justification for limiting contributions runs afoul, in the Court's theory, of First Amendment free speech concerns. The Court's position is that "in assessing the First Amendment interests at stake, the proper focus is on an individual's right to engage in political speech, not a collective conception of the public good." (1)

The problem with this formulation is its obvious one-sidedness. A democratic political system must do precisely what the Roberts' majority rules against: balance both free speech and responsiveness to what the majority, not just the elite, seek to achieve politically.

It is almost as if Roberts is aware of the untenable bias in the Court's decision. In his majority opinion, he all but explicitly contradicts the decision when he favorably quotes the conservative political theorist Edmund Burke on the need for political office holders to be responsive to their constituents. Burke, as cited by Roberts, had this to say: the judgment exercised by representatives in office should be informed by "the strictest union, the closest correspondence and the most unreserved communication with his constituents." Roberts himself follows this up by saying that "such responsiveness is key to the very concept of self-governance through elected officials." (2) Yet the Court tilts in exactly the opposite direction. Representativeness is neglected in the name of the speech privileges and the political influence of the wealthy.

Obviously the Court has failed to take democracy seriously enough. But the fact remains that there is a tension between the unfettered use of money to promote political viewpoints and democratic accountability. Those of us who think that democracy has gotten short-shrift from the Roberts Court must nevertheless confront that tension. The touchstone of the Court's viewpoint is its long-standing doctrine that in the name of free speech it is impermissible for the government to "restrict the speech of some elements of our society in order to enhance the relative voice of others." (3) But precisely enhancing the relative voice of others compared to the rich is required if accountability to voters is to become a reality.

Both free speech and enhanced political responsiveness have to be protected. This can be done with a voluntary system of public funding for election campaigns. The voluntary nature of such a system protects the right of donors to speak with their wallets. They can continue to provide money to candidates who choose not to receive public funds. At the same time, those who opt into such a system will thereby be able to avoid the influence of wealthy private donors. So long as the public funding system is generous, the voices of the rest of us will be enhanced.

No one doubts that the Supreme Court is a political entity. Given its present composition, it might rule against a public funding system, though to date it has left unchallenged the voluntary public funding systems already in place. Despite the plutocratic bias of the current Court however, it is at least conceivable that the Court would uphold public campaign funding. To do anything else, Roberts in particular would have to be blind to the significance of what Burke had to say and which he himself endorsed.

The substance of democracy is at stake. Defenders of democracy and free speech should put the Supreme Court to the test. We should work at all levels of government -- following the lead of states such as Connecticut and Maine and cities such as Los Angeles and New York -- to adopt systems of public funding. There have already been judicial challenges to these reforms. When the Supreme Court next rules on public financing, its defenders will be able to use Roberts' own words to defend empowering the electorate at the expense of the elite.

1. Supreme Court of the United States, "Syllabus, McCutcheon et al. v. Federal Election Commission," p. 3. My emphasis.
2. Supreme Court of the United States, 'Shaun McCutcheon et al. Appellants v. Federal Election Commission, Opinion of Roberts, C.J." p.39
3. Ibid., p. 18

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