“For let it be agreed that a government is republican in proportion as every member composing it has an equal voice in the direction of its concerns…”
—

Thomas Jefferson

Letter to Samuel Kercheval,
July 12, 1816

Introduction

The United States was founded on a radical premise: that all are created equal and therefore deserve an equal say over the decisions that govern our lives. The expression of this premise in the late 18th century was of course radically incomplete. The sin of slavery; the exclusion of all but property-holding white males from voting; the dispossession of Native Americans; the rejection of immigrants—all have marred the vision of equal voice and equal representation.

It has taken a civil war, several constitutional amendments, landmark legislation, and decades-long legal battles to even begin to approach a truly inclusive democracy, where everyone means everyone; and that journey remains seriously incomplete today.

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At times the Supreme Court has been an ally in our journey towards justice. The founding principle of equal citizenship finds perhaps its clearest expression in the one person, one vote cases of the 1960s: the very notion of democracy itself demands that each person’s vote and voice have equal weight.1

But at other times the High Court has been a formidable obstacle.2 An infamous example from an earlier era is how the justices elevated their own conservative economic views into the supreme law of the land in the early twentieth century, declaring that certain basic worker protections were prohibited by the Constitution and stalling our recovery from the Great Depression.3 More recently, the Court has moved aggressively to shield the wealthy and powerful from democratic accountability on issues ranging from “commercial speech” to workers’ rights and more.4

On no issue has the Court been a more consequential barrier to progress in the last half-century than on the role of money in American politics. Demos has argued elsewhere that failures in our democracy are resulting in skewed public policies that are increasing economic inequality, undermining opportunity and mobility, and holding back our decades-long struggle for racial equity.5

Here, we make the case that the Supreme Court’s approach to money in politics is a driving force behind all of this, and that to break this vicious cycle we need to transform the Court’s approach—just as decades-long strategic advocacy campaigns have pushed the justices to reverse course on New Deal economic protections, racial segregation, LGBT rights and more.

At a basic level, the Court has mis-defined the problem of money in politics, insisting that deterring “corruption” is the only legitimate objective of rules governing the use of money in elections rather than acknowledging that fundamental power relations and the goal of equal citizenship at the heart of our democracy are at stake.6

This narrow and flawed approach has led the Court to accept limits on big money only in the name of fighting direct exchanges of money for votes while ruling that our Constitution forbids the People from enacting basic protections against the wealthy few translating their economic might into political power.7 This makes a mockery of the one person, one vote principle.

The infamous Citizens United ruling has become the symbol of this problem, but it extends back much further—to 1976’s Buckley v. Valeo decision, which struck down important post-Watergate reforms and first equated money with speech.8

The good news is that We the People can rescue our Constitution and reverse our current self-reinforcing cycle of political and economic inequality. We can do this through a constitutional strategy focused on pushing the Supreme Court to clarify that the People have the power to protect our democracy.

There will likely be significant turnover on the High Court over the next five years, providing an opening for change. Future democracy-friendly justices can join their open-minded colleagues to repair the damage the Court has inflicted by ignoring core democratic values and treating unlimited political spending as the equivalent of protected speech.

Transforming the Supreme Court’s narrow, flawed approach to money in politics and embracing a more accurate, common-sense interpretation of our Constitution starts by developing compelling alternatives to the Court’s exclusive focus on quid pro quo corruption, so that a new coalition of justices can shift smoothly to a better path.9

Working together, legal scholars, lawyers, advocates, and organizers can set the stage for a new era in which the size of a citizen’s wallet does not determine the strength of her voice, and we all truly have an equal say in our democracy and an equal chance in our economy.

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  • 1See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964). 
  • 2Jamin Raskin, Overruling Democracy: The Supreme Court vs. The People (2003).
  • 3Lochner v. New York, 198 U.S. 45 (1905); see also, e.g., Jedidiah Purdy, The Roberts Court v. America, Democracy J., Winter 2012, available at http://www.democracyjournal.org/23/the-roberts-court-v-america.php?page=all; Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1397-99 (1994).
  • 4See, e.g., Sorrell v. IMS Health Inc., 131 S.Ct. 2653 (2011); Harris v. Quinn, 573 U. S. ____ (2014).
  • 5David Callahan & J. Mijin Cha, Stacked Deck: How the Dominance of Politics by the Affluent & Business Undermines Economic Mobility in America (Dēmos, 2013) (Hereinafter “Dēmos’ Stacked Deck 1”).
  • 6See, e.g., Frank Pasquale, Reclaiming Egalitarianism in Political Theory, 2008 U. Ill. L. Rev. 599, 621 (2008) ; Daniel Tokaji, The Obliteration of Equality in American Campaign Finance Law: A Trans-Border Comparison, 5 J. Parl. & Pol. L. 381, 381-82 (2011); Jedediah Purdy, That We are Underlings: The Real Problems in Disciplining Political Spending and the First Amendment, 30 Constitutional Commentary 391, 394-95 (2015).
  • 7This argument, developed further throughout this article, was previously discussed in detail by the author in a law review article. Adam Lioz, Breaking the Vicious Cycle: How the Supreme Court Helped Create the Inequality Era and Why a New Jurisprudence Must Lead Us Out, 43 Seton Hall L. Rev. 1227 (2013). See also Sunstein, supra note 3 at 1392.
  • 8Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010); Buckley v. Valeo, 424 U.S. 1 (1976). 
  • 9See Richard Hasen, Is “Dependence Corruption” Distinct From a Political Equality Argument For Campaign Finance Laws? A Reply to Professor Lessig, 12 Election L.J. 305, 315-16 (2013).