campaign finance – Beesquared

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.”

The presidential campaign now underway is making history for at least one reason besides the prospect of the first woman or a star of reality TV becoming the nation’s chief executive.

The campaign also marks the coming online of a series of rulings by the Supreme Court, beginning with the court’s decision in Citizens United six years ago, that enable groups aligned with candidates to accept unlimited donations.

Hillary Clinton has raised a total of $296 million, of which 29% has come from super PACs allied with her, as of March 31. For all her financial fortitude, the money impairs Clinton’s inability to gain traction among Democrats (and, possibly, in a general election, among independents) who harbor antipathy toward the establishment, which all those super PAC dollars represent.

Bernie Sanders, Clinton’s Democratic rival, disavows support from super PACs, though some outside groups still support him. Donald Trump, the GOP nominee, also has criticized candidates who get support from super PACs though he has said that Republicans will need to raise $1 billion to compete against Clinton.

Writing in February in The Atlantic, Ron Brownstein noted that both Trump and Sanders address the yearnings of those who feel shut out of the political process. Among people who were likely to vote in the Republican primary, nearly 87% preferred Trump if they agreed with the statement that people like them have no say about what the government does, according to a survey in December and January by the RAND Corporation.

That brings us back to the Supreme Court, and specifically to a ruling two years ago in McCutcheon v. Federal Election Commission. The case came before the court on an appeal by Shaun McCutcheon, a businessman and electrical engineer from Alabama, who in the 2011-2012 election cycle contributed a total of $33,088 to 16 different federal candidates as permitted by law.

McCutcheon alleged on appeal that he wished to contribute $1,776 to each of a dozen additional candidates but was barred from doing so by an aggregate limit of $48,600 that he challenged as unconstitutional under the First Amendment.

He also asserted that he contributed a total of $27,328 to several political committees not associated with any particular candidate and that he wished to contribute additional amounts to the Republican National Committee and other groups but was blocked by an aggregate limit on contributions to political committees, again, McCutcheon charged, in violation of the First Amendment.

The RNC and McCutcheon filed suit in the U.S. District Court for the District of Columbia, challenging the constitutionality of the aggregate limits.

There a three-judge panel rejected the contention, characterizing the base limits and the aggregate limits “as a coherent system rather than merely a collection of individual limits stacking prophylaxis upon prophylaxis.”

Assuming that the base limits served the government’s interest in preventing corruption – an interest that could survive scrutiny under the First Amendment – the aggregate limits also survived scrutiny because they prevented an end-around of the base limits.

A majority of the Supreme Court, where McCutcheon and the RNC appealed next (federal law allows for direct appeals in such cases) disagreed. Chief Justice John Roberts, writing for the majority, reasoned that the decision by Congress to limit to $5,200 contributions to any one candidate made sense because it reflected a judgment by legislators that giving a candidate more might risk corruption, as in giving or receiving something in return for something else.

But the aggregate limit served no such purpose, according to the majority. “If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801, and all others corruptible if given a dime,” asserted Roberts, who continued:

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption – quid pro quo corruption – in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.

But the majority defined corruption too narrowly, argued Justice Breyer, who filed a dissenting opinion on behalf of himself and Justices Ginsburg, Sotomayor and Kagan. The First Amendment, he explained, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (emphasis in original)

Viewed that way, corruption “breaks the constitutionally necessary ‘chain of communication’ between the people and their representatives,” Justice Breyer wrote. “Where enough money calls the tune, the general public will not be heard.”

And then the dissent anticipated the phenomenon of voters feeling shut out of their democracy that can give rise to a figure like Trump. According to Justice Breyer:

“The ‘appearance of corruption’ can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.”

As the minority saw it, regulation of campaign finance rests on a rationale that’s broader than the majority’s concern with public officials who might be tempted to sell their votes. Such 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,” Justice Breyer wrote.

In short, the First Amendment protects speech but it protects democracy, too. By constraining its view of the amendment, the majority legalized the idea that democracy yields to money which, if you accept the premise, is a form of speech. From there draw a line directly to voters who feel disenfranchised. Trump is not the only candidate who speaks to such voters – Sanders does, too, from the left – but Trump got to many of them first.

Writing on Scotusblog a day after the decision in McCutcheon, Burt Neuborne, a professor of civil liberties at NYU, asserted that promotion of political equality can justify some limits on spending by the very rich.

Preventing corruption, wrote Neuborne, “means the preservation of a democracy where the governed can expect their representatives to decide issues independently, free from economic serfdom to their paymasters. The road to 2016 starts here.”