Today the Election Law Journal published Beyond Corruption, a peer-reviewed symposium on money in politics and the Supreme Court. The symposium was guest-edited by Professor David Schultz and contains pieces by several Demos attorneys, including a Foreword by Demos President Heather McGhee. Other contributors include Blair Bowie, Adam Bonica, Heath Brown, Allegra Chapman, Stephen Gottlieb, Timothy Kuhner, Kate Shaw, Abdi Soltani, and Christopher Witko. In the coming weeks, several of these contributors will reflect on their pieces here on Policy Shop.
The Supreme Court’s approach to money in politics has profoundly shaped our political world: in which businesses and wealthy donors can translate their economic resources directly into political power, distorting policy outcomes in their favor. Over the past forty plus years, the Court has decimated many attempts to limit the donor class’s dominance on our political system. As Demos’ recent Court Cash report reveals, large portions of money in elections are directly attributable to Supreme Court decisions – including $3 billion in spending on the 2016 elections. In striking down protections against big money, the Court has reasoned that lawmakers can only address one particular problem when enacting such protections: quid pro quo corruption (essentially, bribery) or its appearance.
Despite his phony rhetoric about getting big money out of politics, Trump nominated Neil Gorsuch, a radical judge whose record suggests he could push the Court even further to the right on money in politics, and gut the few protections against big money that have survived Supreme Court review thus far.
But the connection between Donald Trump and the Supreme Court’s money in politics decisions runs even deeper than Supreme Court nominees. In her Foreword, Heather McGhee details four ways the Court’s money in politics case law contributed to Trump’s election as POTUS in the first place:
1. “Four decades ago the Court cleared the way for wealthy candidates to fund their own campaigns by striking a $50,000 limit on self-funding.”
- Trump’s personal wealth gave him instant credibility as a candidate, since he could pour millions of dollars into his own race.
2. “The way the Court had framed the problem as being exclusively about rich donors buying off politicians—which had carried over into public discourse—allowed Trump to present himself as a solution to the problem of big money in politics.”
- The case law is hyper-focused on bribery; this framing was easily captured by billionaire Trump, who claimed he was too rich to be bought.
3. “The money in politics rulings have created a system in which the public rightly feels the deck is stacked against ordinary voters in favor of wealthy donors and special interests.”
- Trump’s critique of government rang true for many voters, who correctly perceive that our government is more responsive to the donor class.
4. “The Court’s jurisprudence on race also set the stage for the current moment.”
- The Supreme Court’s “colorblind” racial ideology helped bring us to this moment by failing to interrupt discrimination and tactics to suppress the votes of people of color. Colorblind case law ignores important power dynamics and realities, and helps entrench privileged elites. Parallels can be found in the Court’s extremist conclusion that corporate speakers must not be “discriminated” against.
Heather concludes that Trump’s victory “exposed the urgent need to address a system that is alienating large segments of people, and to do so in a race-conscious way,” and a long-term need for Supreme Court case law that actually allows legislatures to address a broken system.
The Beyond Corruption symposium helps build that path forward. Pieces written by myself and Demos Counsel & Senior Adviser, Adam Lioz, discuss how the Court can change course on a limited and unrealistic constitutional interpretation in this arena, without uprooting its commitment to precious free speech values.
In my piece Scrutinizing Independent Expenditure Limits: A Case Against Super-Strict Scrutiny, I argue the Court has afforded the right to spend unlimited amounts of money on elections with more protection than it deserves. It has said that this “right” deserves the highest constitutional protection there is, “strict scrutiny:” a level of protection reserved for our most fundamental and precious freedoms, such as the right to speak one’s mind or the right to be free from discrimination on the basis of race. For context, the Court at times has not even afforded the right to vote this strict protection. When only a tiny, elite, disproportionately white and privileged minority can access a “right” to spend, say, millions of dollars on elections, the “right” should not be treated as among our most precious freedoms deserving the constitution’s highest protection.
Yet, even if it is worthy of strict scrutiny protection, the right to spend unlimited amounts on elections has actually received an even higher form of protection than other fundamental rights invoking strict scrutiny—what I call “super-strict” scrutiny. The Court’s rigid refusal to accept that lawmakers have important interests in targeting the oversized influence of money in American politics has doomed campaign finance laws that do not target bribery. If nothing else, the Court must shed this super-strict approach and accept lawmakers’ interests in solving very real problems facing our democracy as valid.
In Limiting the Limits: Principles to Protect Free Expression While Fighting the Power of Big Money in Politics, Adam Lioz concludes that the Court’s equating of spending money and free “speech” entitled to the very highest constitutional protection is oversimplified. He explains that there is a difference between spending money to create your own content—for instance, by buying a poster and a marker to make a sign—and spending money to amplify your message—for instance, by blasting your message all over TV or radio. The latter is far less accessible to everyday Americans than the former.
Adam argues the Court has been hyper-focused on what could go wrong if limits on big money became too draconian. He explains that, while it’s theoretically possible that limiting spending on political speech could go so far as to interfere with essential political freedoms, the Court can easily safeguard against the potential for political dystopia it seems to fear, while leaving more room for the democratic branches to address the very real problems currently facing our democracy. For example, if the Court is concerned that a money in politics reform scheme might entrench incumbents, it should look carefully at whether the money in politics laws themselves would actually prevent outside candidates from mounting viable challenges against incumbents—taking into account other variables, such as a district’s partisan make-up, which make many challenges futile efforts in the first place.
His nomination of Neil Gorsuch to the highest Court suggests that Trump is far from serious about getting big money out of politics. Yet another window of opportunity may come sooner than we think. The Beyond Corruption symposium arms litigators and courts with ideas about what transformative change might look like.