The U.S. Supreme Court will soon issue its ruling in McCutcheon v. FEC, a case that could exacerbate the problem of big money dominance of our elections. At issue is whether the court will dismantle longstanding aggregate limits on campaign contributions made to congressional candidates, allowing wealthy donors to increase even further their influence in our political process.
Toward the end of the oral argument in this case in October, Justice Antonin Scalia claimed that the contribution limits hinder candidates and political parties, in the face of unlimited independent expenditures. Justice Elena Kagan responded with a revealing statement: “[I] suppose that if this court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law.”
Kagan’s point goes to the heart of the problem with the court’s campaign finance jurisprudence: its 1976 ruling in Buckley v. Valeo, which equated money with speech and struck down congressional campaign spending limits, including limits on independent expenditures, passed by Congress in the wake of the Watergate scandal. In Buckley, the court sanctioned a system of unlimited campaign spending as protected by the First Amendment.
Today’s elections amount to auctions to the highest bidders because of the Buckley ruling. Candidates for federal and state office must first compete in a wealth primary, raising huge sums of money in order to win election. And the wealth primary is exclusionary, dominated by the top 1 percent of our society. The rest of us are effectively blocked from participating in what has become a critical part of the machinery for getting elected.
This is directly contrary to the basic principles of the First Amendment. Rather than allowing for an open and robust debate, the Buckley ruling enables big money interests to drown out the voices of everyone else. Many, including respected judges, knew of this danger to the speech rights of Americans who are not wealthy. Indeed, in the Buckley case itself, the U.S. Court of Appeals for the D.C. Circuit relied on this First Amendment concern in upholding the mandatory campaign spending limits passed by Congress, only to be reversed by the Supreme Court the following year.
In an opinion written by Judge J. Skelly Wright, the appellate court stated: “It 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.”
The Supreme Court made matters exponentially worse three years ago when it ruled, in Citizens United v. FEC, that corporations, like people, have the right to make unlimited campaign expenditures in our elections. That ruling has led to the emergence of Super PACs and an explosion of outside spending by corporations and the wealthiest few to influence our electoral outcomes.
When it comes to campaign finance, the First Amendment has been turned on its head. It is now a charter for the financially powerful to control our politics and our government.
Faced with this ever-increasing threat to the integrity of our elections, people across the country and across the political spectrum are rising in defense of our democracy. Since the court’s ruling in Citizens United, 16 states and nearly 500 cities and towns have called for a constitutional amendment to end the big money dominance of our elections and the fabrication of corporations being treated as people with constitutional rights.
Nearly 20 years ago, Cincinnati enacted mandatory spending limits in its city council elections and created the first test case to challenge Buckley. That case did not reach the Supreme Court, but a decade later, on a third try, the court agreed to revisit Buckley in a case known as Randall v. Sorrell involving Vermont’s spending limits. Despite an extensive factual record showing why Vermont enacted the limits to protect its elections, a majority of the court re-affirmed the Buckley ruling and kept in place our system of unlimited campaign spending.
Yet, the dissenting voices in the judiciary keep emerging, alongside the growing calls by a vast majority of Americans for an end to the money chase in our politics. While the national movement for a constitutional amendment to reclaim our democracy will continue to gain new momentum, Kagan’s statement in the McCutcheon argument signals that a parallel movement in the courts must be renewed to challenge Buckley and to advance the argument that the constitutional guarantee of political equality for all justifies campaign spending limits.
Buckley v. Valeo may stand today. But it cannot stand the test of time.
John C. Bonifaz is a constitutional attorney and the co-founder and executive director of Free Speech For People. James G. Exum Jr., the distinguished professor of the Judicial Process at Elon University School of Law, served as a justice on the N.C. Supreme Court, 1975-1994, including as chief justice, 1986-1994.