The hacking of computers at the Democratic National Committee (DNC) and the publication of internal emails that followed may reveal as much about problems with our system of paying for political campaigns as it does about cybersecurity.
With its signs of complicity by Russia, the resignation of the DNC’s chairwoman, sounding off by Donald Trump, shades of the Watergate scandal and the widening scope of the intrusion, the incident leaves plenty to ponder. Add to that list the reality that our politics are overpowered by money.
The roughly 19,000 messages published by WikiLeaks show the lengths to which staff at the DNC went in their courting of benefactors, with offers of access, appeals to ego and flashes of desperation all intended to spur people to give. As the Times reported, the emails reveal “in rarely seen detail the elaborate, ingratiating and often bluntly transactional exchanges necessary to harvest millions of dollars from the party’s wealthy donor class.”
Republicans do it, too. Both parties chase wealthy supporters because a series of rulings by the Republican majority of the Supreme Court allow it and leave the parties with little incentive not to.
The pursuit has intensified since 2010, when the majority in Citizens United v. Federal Election Commission construed spending on political campaigns to be a form of speech entitled to protection under the First Amendment. Four years later, in McCutcheon v. Federal Election Commission, the same justices invalidated aggregate limits on contributions to candidates for federal office, political parties and political action committees.
The DNC emails show how the court’s elevating the First Amendment rights of donors over those of our democracy misconstrues the former and warps the latter. As Bert Neuborne, a professor of constitutional law at New York University Law School, asserts in his book, “Madison’s Music,” the failure (or refusal) of the majority to read the Bill of Rights as the Virginian wrote it has created the current reality by unmooring the Free Speech Clause from the rest of the First Amendment.
As Neuborne sees it, political contributions fall into a category of communication to which the the court has accorded less protection under the First Amendment than speech itself. He writes:
“The term ‘the freedom of speech’ as used in Madison’s First Amendment has no intrinsic literal meaning. Like any abstract legal concept, it must be given meaning by human judgment. That’s why threats, blackmail, extortion, false statements causing harm, obscenity, and ‘fighting words’ are treated by the Court as outside ‘the freedom of speech.’”
Because the act of spending money is communicative conduct and not pure speech, Congress can place reasonable limits on spending. The government also can recognize that “reinforcing political equality is unquestionably a substantial government interest,” according to Neuborne, and, therefore, a legal basis for limits on campaign finance.
Justice Breyer has argued as much. In his dissent in McCutcheon, Breyer explained that campaign finance laws “are rooted in the constitutional effort to create a democracy responsive to the people – a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.”
The solution lies with the court, which means that it lies with the next president. She or he may fill as many as four vacancies on the court as justices age or retire. In her speech on Thursday to the Democratic National Convention, Hillary Clinton pledged to appoint justices “who will get the money out of politics and expand voting rights, not restrict them.” She also has promised to pursue a constitutional amendment to overturn Citizens United.
Though he has railed against political action committees, Donald Trump has said he would nominate conservatives to the court in the mold of the late Justice Antonin Scalia, who constituted one-fifth of the majority whose rulings abrogated limits on campaign spending and touched off the free-for-all that the emails from the DNC chronicle.
Meanwhile, the status quo endures. At the Ritz-Carlton in Philadelphia on Tuesday, former Governor Charlie Crist of Florida, a onetime Republican who is now running as a Democrat for Congress, moved through the lobby amid a sea of the party’s top givers. “We must have set up five fundraisers today,” he told the Times. “This is the bank.”
