In a 5-4 ruling last week, the Supreme Court of the United States (SCOTUS) reversed the decision of the United States District Court for the District of Columbia in McCutcheon v. Federal Election Commission. The essence of the court’s decision was to invalidate section 441 of the Federal Election Campaign Act of 1971, which set aggregate limits on the direct contributions that individuals could donate to national political parties and federally elected candidates in a calendar year.
This has set off two highly emotional spasms of political commentary, both of which are deeply biased in their approach to the issue. One side claims that this is the functional end of election reform, that money now owns American politics, and that the voice has been taken from the people. This is hyperbolic: limits remain on contributions individuals can make to individual candidates, and the majority – with the possible exception of Justice Thomas, who was for abolishing all restrictions – appear to seek a legal path between freedom of speech on the one hand, and the dangers of corruption on the other.
The other side, for its part, is claiming a victory for freedom of speech, and contends that money in politics does not automatically lead to undue influence. The latter is naive at best, if not downright disingenuous, and it defies common sense. If contributions did not adversely affect the political process, why have generations of well-meaning politicians, including John McCain, Russ Feingold, and Fred Thompson, all sacrificed their political careers on the alter of finance reform?
At the Bull Moose, we are extremely uncomfortable with any restrictions on free speech. We are also uncomfortable with a ruling that makes money rather than votes the political currency of the land. The nation was founded on the principle of “one man, one vote” as part of an effort to prevent the rise of a political aristocracy who would use money to control power and protect their interests against those of the nation.
Originalists v. Purposiveists
Despite all of this we believe that the vituperative levied against the Supreme Court misses the point for two reasons. First, while the issue is an ideological one, the majority and the minority were actually split by two matters of principle.
- Does political corruption, which both sides deem bad, only occur when there is a clear “quid-pro-quo?” Or is the nature of corruption more broad, relying on the soft but firm tendrils of extraordinary access and, as a result, undue influence?
- What did the Founding Fathers, those men who framed the Constitution, believe about corruption? What was their intent? How did a reasonable person at the time of the Constitution’s framing feel about the issue?
The Supremes are in place to make rulings on law based on their interpretation of the Constitution, the law of the land, and not to determine the morality or advisability of the law. SCOTUS is not the problem here, and I long ago stopped assuming that anyone on the Court who disagreed with me was doing so out of evil intent: that is neither a positive nor a productive approach to the issue.
The real problem – the one that threatens to turn the American polity into a modern aristocracy – is a flawed electoral system that gives an unfair advantage to the candidate that raises the most money. Money has become the determinant of elections, so all candidates are compelled to pursue it.
The Way Forward
The challenge before us, then, is to take the following steps.
First, we have to enshrine a legal definition of corruption that defines and makes measurable undue influence. We must also do our homework and make an persuasive argument based on Originalism that corruption was and is understood to include influence. Justice Roberts is his decision contents that it is not, but a case can be made against his narrow interpretation based on his own means of constitutional interpretation, and it should.
But that is not enough. Second, we need to continue the effort to reform campaign finance, with the clear recognition that we will face constitutional challenges along the way. This may be a losing battle, but it is one that must continue if for no other reason than it keeps the debate around corruption and campaign finance reform on the agenda of the legislature land the electorate.
Finally, we need to recognize that we will not stop the flow of money into campaign coffers – this takes us too close to restricting freedom of speech for the comfort of too many Americans. A new approach is necessary.
What we must do instead is to act to ensure that money no longer buys influence in politics, but votes do. That requires a complete re-thinking of the electoral process and the way elections are financed and run. If we are going to take money out of politics, we need to change the way we choose our politicians.
Otherwise the billionaires, the corporations, the Unions, Greenpeace, and the US Chamber of Commerce will run our government, not the people. If you want to have an Originalist argument, ask yourself if this was the vision our founders held for America.