In his testimony at the Senate’s “Dollars and Sense” hearing on dark money and the impact of McCutcheon v FEC, Justice Stevens made several clear and important points about the “giant step in the wrong direction” the Supreme Court has taken on money in politics. He took the opportunity to re-ignite a debate about political equality, called for a constitutional amendment, and lambasted the Supreme Court for creating a jurisprudence where “the voter is less important than the man who provides money to the candidate. It’s really wrong.”
Justice Stevens went to the heart of the problem with money in politics law, saying “it is fundamentally wrong to assume that preventing corruption is the only justification for laws limiting the First Amendment rights of candidates and their supporters.” He faults the Court’s jurisprudence because “for years the Court’s campaign finance jurisprudence has been incorrectly predicated on the assumption that avoiding corruption or the appearance of corruption is the only justification for regulating campaign speech and financing of political campaigns. That is quite wrong.” He dismissed narrowing the scope of the corruption interest to cover only quid pro quo exchanges by noting that “our laws against bribery provide an adequate protection against misconduct in office.”
The time is ripe to assert other interests served by reasonable rules for money in politics, such as equality of opportunity, and the right to participation and representation. Justice Stevens points out that elections are particular competitive spheres and as such need reasonable rules. “Elections are contests between rival candidates for public office. Like rules that govern athletic contests or adversary litigation, those rules should create a level playing field.”
He portrays the central issue in electoral contests as one of equality of opportunity, from the perspective of both the competing candidates and the voters who act as judges of the competition:
The rules should give rival candidates – irrespective of their party and incumbency status – an equal opportunity to persuade citizens to vote for them. Just as procedures in contested litigation regulate speech in order to give adversary parties a fair and equal opportunity to persuade the decision-maker to rule in their favor, rules regulating political campaigns should have the same objective. In elections the decision-makers are voters, not judges or jurors, but that does not change the imperative for equality of opportunity.
Justice Stevens also points out that elected officials need time to govern. Imagine how well you would do your full-time job if you had to spend 4-6 hours a day pleading to keep it? According to Justice Stevens, “all elected officials would lead happier lives and be better able to perform their public responsibilities if they if not have to spend so much time raising money.” Current “soul-crushing” fundraising practices mean Senators hear the concerns of the wealthiest few far more frequently than the concerns of the less wealthy, but they can be changed to incentivize candidates to spend more time with average constituents by matching grants to small donors.
The language used by Justice Stevens in recognizing the “voters’ fundamental right to participate in electing their own political leaders” recalls Chief Justice Roberts’ opening sentence in his McCutcheon opinion: “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders.” Yet these two jurists could not have more diametrically opposed views of what the “right to participate” means or how it should work in a free democratic society.
For example, while the Roberts majority appears to have renounced concern for democratic legitimacy and embraced the golden rule – that he who has the gold makes the rules – Justice Stevens warns that “unlimited campaign expenditures impair the process of democratic self-government. They create a risk that successful candidates will pay more attention to the interests of non-voters who provided them with money than to the interests of the voters who elected them. That risk is unacceptable.”
Research shows that government is responsive to the public policy preferences of the wealthiest 10% of Americans, even when they differ from the majority of Americans – which they do, particularly on economic issues. At the same time government is almost completely unresponsive to the policy preferences of people in the bottom third of income distribution. It is small wonder that the real value of the minimum wage has declined since 1968. A minimum wage worker would have to work full-time for eight years to earn as much as the $123,200 limit the Court struck down in McCutcheon.
Justice Stevens did not miss the chance to underline the point that “while money is used to finance speech, money is not speech. Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive the same constitutional protection as speech itself.” He also highlighted Justice Byron White’s Buckley v Valeo dissent, which cites an 1884 case to support Congress’s “authority to protect the elective processes against the ‘two great natural and historical enemies of all republics, open violence and insidious corruption . . . the latter being the consequence of ‘the free use of money in elections, arising from the vast growth of recent wealth.’”
Announcing that “the central error in the Court’s campaign finance jurisprudence is the holding in the 1976 case of Buckley v. Valeo that denies Congress the power to impose limitations on campaign expenditures,” Justice Stevens calls for “an amendment to the Constitution to correct that fundamental error.” We already face a crisis of confidence in American democracy; we need long-term change to protect our government from domination by the donor class and effectuate our rights of participation and representation. Justice Stevens is pointing a way forward.