How the Supreme Court has Helped Destroy Free and Fair Elections

I highly recommend a new book of essays edited by Geoffrey Stone and Lee Bollinger called "Money, Politics, and the First Amendment."  Numerous election law experts contributed to this volume canvassing the Supreme Court's election law decisions dealing with the negative effects of money on free and fair elections. Most of the essays are critical of the Court's decisions and how they have contributed to the sorry state of our democracy. The entire book is well-worth reading.

In this post, I want to highlight one of the essays written by Dean Erwin Chemerinsky and his son Alex called "Getting it Wrong: The Supreme Court and Campaign Finance." This essay is concise, persuasive, accessible, and with pinpoint precision demonstrates the severe harms caused by the Court's use of the First Amendment to limit legislative efforts to offset the distorting effects of the free flow of money on our election system. The authors make clear that they are not arguing that First Amendment concerns are wholly irrelevant to the complex issue of money in politics--just that the Court has improperly and unnecessarily used free speech values to enable the wealthy to take control of and distort our elections.

The authors point to five serious mistakes that the Court has made in its election law decisions. These errors are summarized below but please do not mistake this post for a full discussion of these problems. The entire essay as well as the whole book are well worth your time. 

1) Money is not Pure Speech Under the First Amendment

In a series of decisions starting with the landmark case Buckley v. Valeo, the Supreme Court has held that money is speech, and the justices used strict scrutiny to strike down reasonable restrictions on campaign spending. But, of course, money is not speech even if money often facilitates speech. When I spend money to pay for air conditioning or even theater tickets, I am not engaging in speech. When I spend money to pay other people to speak, that is a mixture of conduct and speech that, according to the Chemerinskys, should be reviewed under the Court's traditional intermediate scrutiny test, and that difference could make all the difference in how courts view the issue of legislative restrictions on campaign spending. The essay argues the following:

Spending is a way of expressing support for a candidate, but it is not itself speech.... Conduct which merely facilitates speech should not be treated as if it were itself speech. Education also facilitates speech, yet the Court has rejected the claim that there is a fundamental right to education.... The consequence of [treating spending money as pure speech] is to make it far more difficult for the government to impose restrictions on campaign spending because of the need for the government to meet strict scrutiny. It is the foundation for the law of campaign finance that has developed over the last half-century.

Money is related to speech and at times intermingled with speech, but it is not speech. The Court's false equivalence has done enormous damage to the goal of free and fair elections.

2) Distinguishing Campaign Contributions and Expenditures

The Court in Buckley drew a sharp distinction between direct contributions to candidates which can be regulated and expenditures in favor of candidates or issues which effectively cannot be. The Court's rationale was twofold. First, expenditure limits lessen the quantity and diversity of speech directly whereas contribution caps do not meaningfully restrain political expression. Second, the Court said that contributions pose far greater risks of corruption than expenditure limits.

As the Chemerinskys point out, however, the "distinction between contributions and expenditures makes little sense." I cannot say it better or more succinctly than they do:

Large expenditures risk corruption or the appearance of corruption in the same way as large contributions. If a candidate knows that someone has spent a significant amount of money to get him elected, there will be exactly the same effect as when the money comes through contributions. At the end of the day, the money all goes to roughly the same place; we doubt it matters much to candidates whether they buy their own ads or whether someone else does it for them. Elected officials can be influenced by who spends money on their behalf just as they can be influenced by who directly contributes money to them. The perception of corruption might be generated by large expenditures for a candidate just as it can be caused by large contributions.

Both campaign expenditures and contributions have expressive elements and both entail substantial risks of corruption. The Court's sharp distinction between the two is irrational and has led to much chaos and confusion in post-Buckley cases.

3) Corporations are not People

It is a bit crazy that this needs to be said but in both real life and for constitutional purposes corporations are not people. Under what circumstances corporations should be accorded the same constitutional rights as individuals should be a nuanced and fact-specific question. Exxon has a right under the Fourth Amendment to be free from unreasonable searches and seizures, and the New York Times has full free speech and free press rights to publish op-eds and other opinion pieces. But neither, of course, has the right to vote or many other rights we accord, you know, real people.

Corporations have the ability to pool together large amounts of money and then spend it in support of candidates and causes that don't necessarily reflect the views of their shareholders or employees. Their essential nature means corporations have vast resources to influence local, state, and national elections (as do labor unions). Treating corporate and union spending the same way as individual spending, as the Chemerinskys point out, is a policy choice not compelled by anything in the Constitution and which "is politically advantageous for those with money." 

The Court's essential assumption that in the context of campaign finance restrictions corporations have the same rights as people is dangerous and wrong.

4) Leveling the Playing Field Should be Considered a Strong Governmental Purpose

The Court has said that the goal of ensuring that some voices do not drown out all others when legislatures regulate campaign spending is not even a legitimate governmental interest, much less a strong one. There is no reasonable constitutional justification for this value judgment. The Chemerinskys quote Justice Stevens's strong dissent in Citizens United to support their view:

The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The Court's campaign finance cases since Citizens United  have unleashed a torrent of spending by the wealthy that reasonable lawmakers could see as a serious threat to our system of representative government. Yet, the Supreme Court has prohibited all efforts to address this problem, often leading to the drowning out of the voices of people who do not have large accumulations of wealth. Nothing in the text, structure or history of the Constitution supports this aggressive judicial rejection of the strong governmental interests in free and fair elections for the wealthy and the poor alike.

5) The Court Should not Reject Public Financing Reforms that Lead to More Speech

In a major campaign finance case, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the conservative justices struck down an Arizona initiative to encourage candidates to accept public money for their campaigns. If they did, they had to agree to a set of conditions regulating how much money they spent themselves and accepted from others. No candidate had to accept the money or the conditions, but if their opponent did, then that opponent could receive, up to a cap, more public money to help her compete with her wealthier opponent. 

The Court struck down the law on the basis that it penalized candidates who spent their own money on their own campaigns. But, as Justice Kagan explained in dissent, and the Chemerinskys agree, the Act did not limit speech at all. Instead, it subsidized the speech of less wealthy candidates thereby actually increasing and subsidizing speech. 

At the end of their essay, the Chemerinskys argue that the overriding value judgment behind many of the Court's cases is the desire to protect the ability of the wealthy, including corporations, to influence local, state, and federal elections. This ideological position, however, is a policy choice not dictated by the Constitution. It is also one that benefits the Republican Party, which is quite obviously not a coincidence. 

There is much more in this essay and in the book worth reading. But the five major points discussed above go a long way in explaining how far away this country has moved from free and fair elections for all.

by Eric Segall