Is it a problem when the Supreme Court is out of step with public opinion? While in many cases the answer is no, when it comes to the question of money and politics and the financing of campaigns and elections, its counter-majoritarianism is a threat to democracy.
Contrary to the belief of many, American politics is not simply a majority rule, winner-takes-all system. As designed by the Framers in 1787 and modified by the Bill of Rights, America’s constitutional democracy is one of majority rule tempered by minority rights. James Madison’s famous Federalist Paper number 10 discusses the dangers of majority faction, describing how the complex machinery of checks and balances and separation of powers is meant to restrain majority faction. Majorities generally get their way on most issues, but when it comes to the right to free speech for example, no majority gets the right to tell a minority what they get to say or think.
The American constitutional system contains numerous anti-majoritarian institutions to protect minority rights. The Supreme Court serves an important role in protecting minority rights, often at the expense of being counter-majoritarian. But that counter-majoritarianism facilitates America’s constitutional democracy, protecting minority rights and preventing a majority from using its numbers to entrench its power.
Yet the Supreme Court’s counter-majoritarianism does not always enable democracy—sometimes it can inhibit it. Consider the issue of the role of money in politics. A June 2, 2015 New York Times survey found that 84% of the American public believes money has too much of a role in American politics and that majorities (or near majority with Republicans) do not believe that money given to candidates is a form of protected speech. The Supreme Court, especially under Chief Justice Roberts, in giving increased First Amendment protection to the use of money for political purposes in cases such as Citizens United v. F.E.C. and McCutcheon v. F.E.C., is out of step with public opinion.
Yes, critics may argue that polls such as this are meaningless or that the Court is doing no more than protecting unpopular speech. But what is going on here is not about regulating content or viewpoint expression or suppressing unpopular groups or oppressing discrete and insular minorities. What we see here instead is the public describing how they think the American politics process should operate, and such views do deserve significant deference. Once I had the pleasure of meeting with former Watergate special prosecutor Archibald Cox who stated that election laws were the “rules that determined the rules of game.” By that he meant that the rules of election law, including how money could be spent for political purposes, determined how the game of politics and democracy would be played. Decide these prior rules and they determine the latter. His point is simple—there are important values that a democracy must articulate and enable. Our Constitution sets the ground rules for ordinary politics, including how campaigns and elections are to be run and funded.
What the public is saying is something simple—the First Amendment has not enshrined money as a constitutional value defining how political power should be allocated. In his famous 1905 dissent in Lochner v New York, Justice Holmes was famous for declaring the Constitution does not “embody a particular economic theory.” There he rejected the idea that laissez faire capitalism was a constitutional theory. Here, the public is making a similar point that neither the Supreme Court nor critics of campaign finance reform understand. There is an important difference between the use of money as a constitutional value and its use as a market tool. Money may be an appropriate medium for financial exchange to buy consumer goods, but it is not an appropriate constitutional value to distribute political power, influence, and authority. American politics is “one person, one vote,” not “one dollar, one vote.”
There is a profound difference between politics and markets. Each has their own logic and values, and operates by different mechanisms. American politics is about equality, respect for minority rights, public accountability, and transparency. The ability to expend unlimited amounts of money is not one of the constitutional values that define how American politics should operate. But even if it is, it must be viewed and balanced in context of all the other competing values.
This is what the American public is saying in the New York Times survey. They better understand than the Supreme Court right now that money is not a legitimate tool that should be the final word driving how decisions are made in American politics. Money cannot be both a political means and end or value in politics. Campaign finance laws not only protect money from drowning out minority voices, but also prevent the entrenched few from using their resources to thwart majority rule. Viewing money and campaign finance laws this way shows how out of touch the Supreme Court is here in terms of both public opinion and in facilitating democracy.