To the choice few who can donate more than $123,200 to political campaigns, congratulations! You have a newly expanded right to free political speech, which few others in America can afford. That’s your latest prize from a Supreme Court that is intent on promoting the interests of the rich, no matter how much elevating a small number of hyperelite voices effectively crushes a great many more. So here’s a pat on the back, really. You’ve earned it. Or at least you paid for it.
On Wednesday, the U.S. Supreme Court handed down its ruling in McCutcheon v. Federal Exchange Commission (PDF), the latest case to take on campaign finance laws. Though McCutcheon dealt with a fairly narrow issue — an aggregate limit on the amount an individual may give to political candidates, parties and noncandidate committees, capped at $123,200 per two-year election cycle — the language in the decision makes obvious the court’s determination under Chief Justice John Roberts to invalidate a swath of regulations around money in politics.
McCutcheon, a wealthy Alabama businessman, contributed to the campaigns of 16 federal candidates in the 2011–12 election cycle and argued that the aggregate contribution limit, which prevented him from contributing to the campaigns of 12 other politicians as well as a slew of political committees, limited his right to free speech. He is not actually a constituent of many of the politicians to whom he donated (and wished to donate). That is exactly the goal McCutcheon had in mind: He wants his voice not just heard and brought up the chain by his political representatives (which is how democracy theoretically functions); he wants the ability to exert his outsize financial influence over as many people as possible. Perhaps most disturbing is the court’s contention that almost any type of campaign finance regulation — short of barring quid pro quo bribery — is unconstitutional.
“The only type of corruption that Congress may target is quid pro quo corruption,” Roberts writes in the McCutcheon opinion. It doesn’t matter that money may be used to garner access or influence, Roberts says. “The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights.”
This isn’t the first campaign finance law the Supreme Court has struck down, and it won’t be the last. With elected officials from all parties increasingly beholden to big-money interests and spending nearly as much time fundraising as actually governing — and with the hyperwealthy given both a larger megaphone and a stronger arm — the question is, Now what?
One answer is public financing for campaigns. A particularly innovative and potentially effective solution comes from the Brennan Center for Justice at New York University School of Law: Small donations are matched and multiplied by public funds, creating financial incentives for candidates to appeal to all their constituents and encouraging average citizens to participate in the political process. Under the Brennan Center model, a $50 donation would be matched and then multiplied by, say, five — making it worth $300 to the candidate.
Ian Vandewalker, counsel for the Brennan Center, told me it’s troubling that we see money as speech and that such a system means legislators spend more time fundraising than working on behalf of their constituents. But the more insidious issue, he said, is which voices politicians are hearing and how that skews policy and governance.
“When legislators have questions about the problems we’re facing and how can we solve them, they’re hearing from the people with the big checks,” he said. “Frankly, rich people and average people have very different ideas about what our problems are and what the solutions might be.”
Public financing means broader and more diverse representation. If your campaign funding is mostly made up of constituents giving $50 or $100 donations that are multiplied into $300 or $600 donations, the influence of the rare constituent who can afford to write a $5,000 check is greatly reduced.
When constituents know their donations will be meaningful, they’re also more likely to donate. For donations up to $175, for example, New York City matches them 6 to 1. New York State has no such system but is considering one. The Brennan Center found that residents in low-income neighborhoods of color, who are often poorly represented by their elected officials, were significantly more likely (PDF) to donate to publicly financed city elections than to state elections without such financing. Residents of Bedford-Stuyvesant, a low-income, predominantly black neighborhood, were 24 times more likely to donate to city council candidates than to candidates running for state assembly. In Chinatown, voters were 23 times more likely to donate to the city candidates. In the Latino neighborhoods in the Bronx and upper Manhattan, 12 times.
Average people, most of whom don’t make anything near $123,200 a year, let alone have the means to donate that much, see the value in this financing. But politicians have been slower to latch on, either because public financing is relatively new and not how they got elected in the first place or because they have financial incentives to stick with the status quo.
“Public financing systems are potentially highly valuable to politicians, and it’s important to help them see that,” Vandewalker said. “They can spend less time fundraising and spend more time shaking hands with people in their districts who are actually going to vote for them. They can stop this cycle of representing people who want access and start representing the people they were elected to represent.”
Big money in politics is unfortunately a system that is excellent at perpetuating, replicating and building on itself. The more money any one candidate gets, the more his opponent needs. And candidates who ride into office on the backs of big donors are naturally sympathetic to those donors’ interests — in policy and, potentially more dangerous, in court appointments. Decisions such as McCutcheon and Citizens United were a long time coming and part of a well-funded, Republican-led strategy to ensure that judges across the federal courts would further open the door for a handful of wealthy influencers. There’s no shady, sinister conspiracy to unravel, but instead a much more mundane money trail: The wealthy donate to politicians who they believe will serve their interests; politicians compete to get more and larger donations for re-election and to curry favor with their political party by courting those with money — i.e., the wealthy; the wealthy reward sympathetic policymaking with even more money; politicians are further incentivized to push those pro-rich policies and to appoint judges to the bench who will uphold those policies and overturn the ones that challenge them. In this way, the corrupting influence affects all three branches of government.
The task of reformers, then, is to stop this vicious cycle at its source, by upending the campaign financing system. To get political leaders who are responsive to the public, rather than just the wealthy, requires a public financing system.
“What we need is a mechanism to ensure that wealth doesn’t equal power in the political process,” Vandewalker said. “Public campaign financing is one of the ways to do that. It should be one person, one vote, not one dollar, one vote.”