Democracy, campaign financing, and the Supreme Court

...Instead, the Court's view of the necessary connection between political campaigns and money was a self-fulfilling prophecy...

...The Dianne Feinstein/Michael Huffington campaign illustrates this point...

...It has also found that party expenditures explicitly spent attacking the other party's candidate, presumably because such expenditures are not for the election of a specific candidate, do not have to be counted under any spending limits that exist (Colorado Republican Federal Campaign Committee v. Federal Election Commission [1996...

...Because different individuals and groups in society have unequal financial resources, the information generated in the absence of some attempt at equalizing such resources is likely to be extremely slanted toward the views of those individuals and groups who can afford the most "political speech...

...by contrast, in 1994, Michael Huffington spent about thirty million dollars on his senate campaign...

...The problem here is fairly obvious...

...It could learn much from Brandeis's dissent...

...The means by which one can express oneself in speech in the late twentieth century are so different from those of the late eighteenth century that the Court cannot interpret the First Amendment sensibly without taking them into consideration...

...Interpreting the amendment sensibly now requires that we think not only about the relation between free speech and democracy, but also about the relation between political speech and money in the context of such modern technological advances...

...I question the assumption, central to the deciding opinion in that case, that there is something positive about the quantity of speech during a political campaign and that therefore the more money that is spent on such speech, the better...

...The Court's opinion simply takes it as given that expensive modes of communication such as television, radio, and other mass media are "indispensable instruments of effective political speech," so that "the raising of large sums of money [is] an ever more essential ingredient of an effective candidacy...

...They never pause to consider what might happen if the fairly strict spending limits passed by Congress were allowed to stand...

...Instead of reacting to these changes in such a way as to restore our democracy, the Supreme Court has used subsequent cases to make things worse...

...It simply took for granted the easy translatability of money into late-twentieth-century political speech, rather than asking how we should interpret the Constitution's guarantee of free speech in such a context...

...Even a very large group of average citizens would have a hard time competing financially, so as to be equally able to exercise its right of free speech, with the Philip Morris Company or the Lockheed Corporation...

...Serious tensions exist between the economic inequalities toward which capitalism tends and the political equality that democracy requires...

...By the 1920s, however, wire-tapping had 10 • DISSENT Comments and Opinions become another means of doing the same thing...

...Second, it seems reasonable to ask why the Court in 1976 did not adopt a more questioning attitude toward the high costs of political campaigns...

...In addition to this sheer escalation of expenditures, in the last two presidential campaigns and the 1994 California senate race, the influence of wealth on politics showed itself when individuals with little, if any, previous political track record—Ross Perot, Huffington, and Malcolm Forbes—literally 8 • DISSENT Comments and Opinions bought themselves a significant voice in the public debates...

...In 1974, in the aftermath of the Watergate scandal, Congress radically amended the Federal Election Act so as to restrict both campaign contributions and expenditures, but the amendments were eviscerated two years later by the Court's decision in Buckley v. Valeo...

...There might by now be far more reliance on volunteers, on grass-roots organizations, on door-todoor campaigning—all of which would have enhanced popular participation in politics and would have increased the amount of discussion, the actual give and take of political ideas, that would occur...

...Rather, it seems, as more and more money has been spent on campaigns, discussion and relevant information have more often than not been drowned out by flashy media imagery, evershorter sound bites, and overwhelmingly negative campaigning...

...It is, however, extremely doubtful that the dollar FALL • 1997 • 9 Comments and Opinions amounts spent on political campaigns correlate positively with the amount of actual discussion or dissemination of information that takes place...

...Brandeis looks back to the time when the Fourth Amendment was adopted, noting that, at that time, breaking and entering were the only means the government had of invading a person's private space in the ways the amendment was designed to prohibit...

...The third problem with the Buckley ruling is encapsulated in part of the passage quoted above from the Court's opinion, in which it is argued that any attempt to equalize opportunities for political speech runs contrary to the First Amendment, the purpose of which is to proliferate "information from diverse and antagonistic sources...

...In the first, pivotal case, Buckley v. Valeo, the Court reasoned that controls placed on spending in political campaigns, whether by individual candidates or parties, violate the free speech guarantee of the First Amendment...

...Finally, the greatest failing of the Buckley decision was a failure of imagination—in particular, the imagination it takes to speculate about how to interpret in the present clauses or terms of the Constitution that were framed in very different circumstances...

...On the other hand, it is by no means unheard of for the Court to reverse one of its own decisions, even within a short time span...

...Basically, the Court equated money with speech...

...When Supreme Court decisions are based on bad reasoning, they should be overruled, which can only be done, of course, by the Court itself...

...By bombarding the California public with increasingly nasty ads about such issues as which of the two candidates' housekeepers was more illegal than the other's, it showed the negative effects that spending tens of millions of dollars can have on an election campaign...

...Although the Court decided that limits on individual contributions were justified, in order to reduce both the likelihood and the appearance of corruption, it ruled that limits on spending were not...

...It is of compelling importance that this ruling be reversed, because it is fundamentally opposed to the political equality of citizens that is at the heart of democracy...

...Since the Buckley decision, a number of other legislative attempts to control political expenditures have been blocked by the Court...

...And, Brandeis argued, using his imagination well, scientific progress may one day enable the government "without removing papers from secret drawers, [to] reproduce them in court, .. . by which it will be enabled to expose to a jury the most intimate occurrences of the home...

...The same imaginative thinking was clearly needed in the Buckley case...

...The first problem is more obvious in hindsight than it was in 1976, but this raises questions about the satisfaction with which most members of the current Court apparently view that earlier decision...

...For anyone who is serious about the necessity for democracy of maintaining a high degree of political equality among citizens, the translation of economic inequalities into political ones is a most urgent problem...

...Indeed, this very point was made in Justices Stevens and Ginsburg's dissent in the 1996 case...

...Surely it is not out of the question that, with strict limits on spending, the nature of political campaigning might have evolved in a very different way than it has done...

...To illustrate: the limit struck down by the Court in Buckley for a senator's campaign was (in 1976 dollars) $100,000 for the primary and $150,000 for the general election...

...is a model of the kind of imagination that needs to be exercised in such cases...

...Despite this, in the related case in 1996, only two of the current justices dissented from the overall reasoning of the Buckley opinion, and Justice Thomas even argued that that earlier ruling was too permissive and should not have allowed the restriction of contributions at all...

...For without such a reversal, on the urgent issue of ever-escalating campaign expenditures, Congress's hands are tied...

...They wrote: "It is quite wrong to assume that the net effect of limits on contributions and expenditures—which tend to protect equal access to the political arena, to free candidates and their staffs from the interminable burden of fund-raising, and to diminish the importance of repetitive thirty-second commercials— will be adverse to the interest in informed debate protected by the First Amendment...

...Neither, it decided, were limits on the amounts that might be spent by an individual or that individual's family on his or her own campaign for office...

...Trying to get the Supreme Court to think differently about campaign financing is the best place to start dealing with it...

...The Court reasoned badly in Buckley in four respects...

...Between 1940 and 1943, for example, largely because of the growth of totalitarianism and the fact that Hitler was by the second date officially the enemy, the Court reversed its position on whether school children should be compelled to salute the flag...

...However, for more than two decades now, in the United States, the most important such barriers have been ruled out as unconstitutional by the Supreme Court...

...q FALL • 1997.11...

...Since the 1950s, but especially since the mid-seventies, campaign expenditures have escalated geometrically...

...Justice Brandeis's dissent in that case (Olmstead v. U.S...

...The Court specifically addressed the issue, prominent in discussions of democracy, of whether it is justifiable for the democratic process to try to equalize the political influence of citizens...

...These tensions are greatest when disparities of income and wealth are most extreme, as they are in the United States compared with other basically democratic countries, but they can be reduced by the vigilant maintenance of legal barriers prohibiting the translation of wealth into political power...

...Thus, in order to apply the Fourth Amendment sensibly, he argued, one had to think both about what it meant when it was written and how it should be understood in the contemporary context...

...It has found, for example, that corporations, as well as natural persons, have rights of "free speech" that significantly restrict legislated limits on their spending on political issues (First National Bank v. Bellotti [1978...

...The crux of the Court's reasoning was that it is in the people's interest to have more, rather than less, discussion relating to political issues and to the qualifications of candidates, and that the expenditure limitations would restrict the quantity of political speech that would occur, including "the number of issues discussed, the depth of their exploration, and the size of the audience reached...

...They are right to question the assumption of the majority that more discussion or informed debate results from more, rather than less, expenditure on political campaigns...

...The Court found that, though the limits on contributions and disclosure requirements were constitutional, the limits placed on campaign expenditures and on independent expenditures on behalf of a candidate were in violation of the free speech clause of the First Amendment...

...Wisely, the Clinton administration now seeks to ask the Supreme Court to review its decision...

...The deciding opinion in Buckley states over and over that the discussion of issues and of candidates' qualifications is beneficial to the democratic process, and infers from this that not restricting the dollars spent on such speech will enhance this benefit...

...When the amendment was worded it was, of course, unthinkable that the media might one day enable persons with vast amounts of money to "speak" simultaneously within every living room in the country...

...It was the same kind of failure of imagination that a much earlier Supreme Court majority displayed in 1927 when they refused to recognize that wire-tapping by the federal government to obtain evidence in a criminal case amounted to violation of individuals' rights not to be subjected to "unreasonable searches and seizures...

...Restricting campaign expenditures is one crucial means of doing this...

...Surprisingly, to those of us who think democracy has something to do with political equality, it answered negatively: "[T]he concept that government may restrict the speech of some elements in our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed 'to secure the widest possible dissemination of information from diverse and antagonistic sources.' " The Court's reasoning in Buckley has been criticized by a number of people, from Justice J. Skelly Wright in 1976 to Laurence Tribe, John Rawls, and Ronald Dworkin more recently...

...The Court in Buckley, as we have seen, was not at all inclined to do this...