INTRODUCTION: Building a First Amendment-Friendly Democracy or a Democracy-Friendly First Amendment

October
2014
Johanna Kalb & Burt Neuborne

Last term’s 5–4 decision in McCutcheon v. FEC[1] represents the sixth consecutive decision of the Roberts Court invalidating a campaign finance regulation on First Amendment grounds.[2] McCutcheon struck down the federal cap on the total amount ($123,500) that any single donor could contribute to candidates and parties during a federal election cycle,[3] over and above the unlimited amounts he could expend on his own.[4] While the immediate impact of the decision is likely to be minimal in a campaign finance system already awash in cash,[5] McCutcheon’s enduring legacy may be its vision of an entirely privatized political marketplace.[6]

The free market metaphor has a long lineage in the Court’s First Amendment jurisprudence, dating back to Justice Holmes’ iconic dissent in Abrams v. United States, where he argued that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”[7] But just as the unregulated economic marketplace does not always lead to the most competitive trade in goods (hence the need for antitrust and securities regulation), an unregulated political marketplace does not inevitably produce a robust trade in ideas.[8] Since Buckley v. Valeo, the Supreme Court has repeatedly glorified the myth of the electoral free market, while undervaluing the need for reasonable regulation to ensure a genuinely open marketplace of ideas.[9]

Over the last decade, the conservative majority on the Roberts Court has invoked free market metaphor to turn the First Amendment into a deregulatory device. In so doing, as Ciara Torres-Spelliscy explains in her contribution to this collection, the Court has disavowed precedent that permitted government to correct distortions in the political marketplace, particularly those caused by accumulated wealth.[10] As a result, after McCutcheon, the government’s interest in regulating political spending is vanishingly small—limited to preventing quid pro quo corruption (or the transparent exchange of cash for votes) and requiring disclosure of the source of campaign funds.[11] If the deregulatory trend continues, as Justice Thomas’s concurrence suggests it will, even the few remaining limits on political spending are at risk.[12]

In its immediate aftermath, the McCutcheon Court was roundly criticized for being divorced from reality[13] and “incoherent.”[14] More disturbing, though, is the likelihood that the Roberts Court’s vision of politics is entirely coherent, with McCutcheon representing a new beginning, rather than an end, to its deregulatory agenda.

In a notable passage in McCutcheon, Chief Justice Roberts defined First Amendment rights of political participation to include running for office, voting, urging others to vote, volunteering, and contributing.[15] As Yasmin Dawood notes, this account demotes voting to a form of political participation under the First Amendment, rather than what it was recognized in Yick Wo v. Hopkins[16] to be: the “fundamental political right . . . preservative of all rights.”[17] Reducing the status of voting rights makes sense in the logic of the deregulated political marketplace. The McCutcheon Court’s discussion of the aggregate contribution limits highlights its concern that through this cap on political spending, the government impermissibly privileged some forms of participation over others, and thereby distorted the electoral debate.[18] Put more plainly, the wealthy, who would prefer to participate with cash, were the only ones whose political activity was restricted.

View through such a lens, the primacy of voting rights could also be challenged as unnecessarily redistributive. Voting is a form of political participation in which each citizen’s influence is formally equal. If the goal is to have a deregulated marketplace of ideas shaped through individual interactions rather than government intervention,[19] the privileging of voting looks like a heavy finger on the scale. By choosing to represent voting as just one of many forms of influence, the McCutcheon Court may reduce the relative value and power of the most important egalitarian form of political activity, in favor of permitting the most “engaged” citizens to increase their control over the political process. What the McCutcheon Court fails to acknowledge, perhaps quite intentionally, is that this move further erodes the boundaries between economic and political power by giving increased weight to the many forms of participation that are facilitated by wealth.[20] In the post-McCutcheon world, the most engaged citizens are also the richest.

Recognizing the Court’s deregulatory mindset, many of the voices in this collection explore ways to build a representative democracy that works despite the First Amendment, not because of it. McCutcheon’s silver lining, some have posited, is that it could redirect the flow of financial contributions into the political parties.[21] Samuel Issacharoff argues that this would be a positive development because candidates and parties represent a more responsible and accountable alternative to independent expenditure groups.[22] The essays by Professor Malbin and Professors Fishkin and Gerken both extend and challenge this account. Malbin’s empirical evidence undermines the assumption that the major political parties have been weakened by campaign finance regulation and leads him to question whether reinvigorating them with an influx of cash would lead to a healthier democracy.[23] Fishkin and Gerken reach a similar conclusion but by a different path. In their view, the emergence of powerful independent organizations (like Obama for America or the Crossroads groups) represents a transfer of power within the parties, but one that shifts authority away from the “party faithful” and towards a handful of small donors.[24] In their framing, the problem is not the weakening of the parties vis-a-vis other groups; it’s the restructuring (or “hollowing out,” as Kate Andrias puts it) of the parties in a way that diminishes their representative function. Thus, they too question whether wealthier parties would improve democratic outcomes. Andrias takes their line of analysis one step further, moving beyond the party paradigm to advocate for rebuilding other representative organizations that could provide a people-centered counterweight to big political spending.[25]

Another set of essays looks at restructuring the rules of the game to reduce the importance of political spending in campaigns without running into the limitations imposed by the Roberts Court’s interpretation of the First Amendment. Ned Foley encourages creative thinking about the ways that technology could help to expand the importance of electoral spheres where the equality norm reigns, like on the ballot and in public debates.[26] But as Lisa Manheim’s response reminds us, a technological fix comes with its own new set of challenges, introducing new avenues for manipulation and distortion. [27]

The shift in focus from doctrine to structure evidenced in these essays is a positive development in the field of election law. As Justin Levitt observes, attempts to fashion an electoral system indirectly through constitutional law often lead to results that are odd or even perverse.[28] Moreover, thinking through institutional solutions to our electoral problems requires developing a much more serious and realistic understanding of how we would like our politics of representation to work.

Despite the participants’ innovative and praiseworthy efforts, however, the notion that the Roberts Court’s First Amendment is an obstacle rather than an aid in our exercise of self-government is a tragedy. As Justice Breyer noted in his McCutcheon dissent, deciding First Amendment cases without considering the quality of the democracy they produce is to miss the point entirely.[29] As the exchange between Professors Levitt and Hasen over “electoral integrity” suggests, no consensus has emerged around an alternative vision that could challenge the developing hegemony of the Roberts Court’s First Amendment.[30] Thus, while the participants’ thoughtful essays have started us down the path, there is more work to be done in developing a vision of a democracy-friendly First Amendment (rather than a First-Amendment friendly democracy). We live now in “an accidental democracy built by judges,”[31] where the will of the people has little influence on the behavior of government.[32] If the Roberts Court’s wholly deregulatory First Amendment triumphs, that is not only our present, it is our future.



Copyright © 2014 by Johanna Kalb, Jurisprudence Fellow, Brennan Center for Justice at NYU School of Law; Visiting Associate Professor of Law, Yale Law School, & Burt Neuborne,  Inez Milholland Professor of Civil Liberties, NYU School of Law, Founding Legal Director, Brennan Center for Justice at NYU School of Law.

    [1]   134 S. Ct. 1434 (2014).

     [2]   McCutcheon v. FEC, 134 S. Ct. 1434, 1442 (2014) (invalidating the aggregate contribution limits); Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490, 2491 (2012) (per curiam) (striking down a Montana ban on corporate political spending); Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2813 (2011) (invalidating the triggered matching fund provisions of Arizona’s public finance system); Citizens United v. FEC, 558 U.S. 310, 365–66 (2010) (permitting unions and corporations to make unlimited independent election expenditures); Davis v. FEC, 554 U.S. 724, 729, 740 (2008) (invalidating the “Millionaire’s Amendment” which had permitted candidates facing wealthy self-funded opponents to raise larger contributions until they achieved parity with their opponents); Randall v. Sorrell, 548 U.S. 230, 236 (2006) (striking down Vermont’s mandatory campaign expenditure and contribution limits); see also Wisc. Right to Life, Inc. v. FEC, 546 U.S. 410, 411–12 (2006) (per curiam) (vacating a district court’s ruling that as-applied constitutional challenges were not permitted per McConnell v. FEC, 540 U.S. 93  (2003) in a challenge to federal law regulating electioneering communications).

     [3]   David Earley, In McCutcheon, Justices Advance Troubling Vision of Democracy, Brennan Center (Apr. 2, 2014), http://www.brennancenter.org/blog/mccutcheon-justices-advance-troubling-....

     [4]   Since Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Court has drawn a distinction between contribution limits, which are constitutionally permissible, and independent expenditure limits, which are not. The Court reasoned that all campaign finance limits implicate First Amendment interests, but that limits on independent political spending (uncoordinated with any candidate or party) are the most troubling because they “necessarily reduce[] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Id. at 19. By contrast, contribution limits are a less significant restraint because a contribution “serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” Id. at 20–21. As a result, the Buckley Court upheld the contribution limits in the challenged Federal Election Campaign Act, but struck down the limits on independent expenditures. Id. at 25–26, 44­–50.

     [5]   The Roberts Court has already made it clear that no limits may be imposed on the amounts a wealthy individual or corporation can spend independently to influence campaigns. Buckley, 424 U.S. at 45; see Citizens United, 558 U.S. at 345–47 (extending Buckley’s reasoning to strike down statutory restrictions on corporate independent spending). Thus, McCutcheon’s immediate impact is to provide wealthy individuals with the choice between buying influence indirectly by spending unlimited sums independently, or buying influence directly by contributing virtually unlimited sums to party leaders.

     [6]   As has been written, the Roberts Court’s view of the political marketplace has striking parallels to the Lochner-era Court’s approach to the economic marketplace. See Ellen D. Katz, Election Law’s Lochnerian Turn, 94 B.U. L. Rev. 697, 698 (“[T]he present [Roberts] Court confronts contemporary efforts to regulate the electoral process much like the Lochner Court approached progressive wage and hour legislation a century ago.”). During the Lochner years, the Court developed the constitutional right to freedom of contract as a way of blocking efforts to regulate unfair employment contracts that preyed on the poor. See Burt Neuborne, Ending Lochner Lite, 50 Harv. C.R.-C.L. L. Rev. __ (forthcoming 2014) (manuscript at 1) (on file with the New York University Law Review) (describing the Lochner era as one “characterized by widespread judicial invalidation of state and federal legislative efforts to set minimum terms of fairness in employment contracts”). Similarly, the current Supreme Court majority is deploying a rigid vision of freedom of speech to block efforts to regulate massive campaign spending that distorts the free market in ideas. See Katz, supra, at 706–08 (comparing further the Court’s campaign-financing holdings to its Lochner-era reasoning).

     [7]   Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

     [8]   See David Cole, First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance, 9 Yale L. & Pol’y Rev. 236, 242–43 (1991) (explaining how rising costs create barriers to equal participation that undermine the integrity of elections).

     [9]   See Buckley, 424 U.S. at 48–49 (finding “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment,” the purpose of which is to encourage sharing diverse ideas and create changes willed by the people). The notable exceptions were the Court’s decisions in Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990), and its precursor, FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). These cases recognized that “[f]ree market capitalism threatens the free marketplace of ideas by giving certain voices inordinate influence, not because of the power of their ideas, but because of the volume they can generate for their voices with dollars earned through commercial activities.” Cole, supra note 8, at 237.

    [11]   See McCutcheon v. FEC, 134 S. Ct. 1434, 1450–51 (2014) (explaining distinction between quid pro quo corruption and permissible influence); id. at 1459–60 (reiterating the importance of disclosure in “minimiz[ing] the potential for abuse of the campaign finance system”).

    [12]   See Paul Blumenthal, The Roberts Court Tees Up the End of Campaign Finance Reform in Its Latest Ruling, Huffington Post (Apr. 4, 2014, 7:36 AM), http://www.huffingtonpost.com/2014/04/04/john-roberts-campaign-finance_n... (explaining how McCutcheon undermines the constitutionality of the “soft money” ban); Richard L. Hasen, Die Another Day: The Supreme Court Takes a Big Step Closer to Gutting the Last Bits of Campaign Finance Reform, Slate (Apr. 2, 2014, 1:13 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/th... (describing the threat McCutcheon’s reasoning poses to base contribution limits); see also Devin Henry, Campaign Finance Lawsuits in Minnesota and Other States Take Aim at Contribution Limits, MinnPost (Apr. 21, 2014), http://www.minnpost.com/effective-democracy/2014/04/campaign-finance-law... (describing a suit filed challenging Minnesota limits on big-dollar donations from “special sources”).

    [13]   Dahlia Lithwick, Justice Roberts Hearts Billionaires, Slate (Apr. 2, 2014, 5:28 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/mc....

    [14]   Geoffrey R. Stone, The First Amendment Doesn’t Protect the Right to Buy the American Government, Daily Beast (Apr. 5, 2014), http://www.thedailybeast.com/articles/2014/04/05/the-first-amendment-doe....

    [15]   If these words are more than rhetorical flourish, McCutcheon has the capacity to revolutionize the law of democracy. Recognizing that the rights to vote and run for office are protected by the First Amendment would subject laws inhibiting these rights to a far more stringent level of scrutiny. See Burt Neuborne, Madison’s Music: On Reading the First Amendment (forthcoming 2014) (manuscript at 65) (on file with the New York University Law Review) (describing the different levels of scrutiny employed in First Amendment analyses).

    [16]   118 U.S. 356, 370 (1886).

    [18]   In striking down the aggregate-contribution limits, Chief Justice Roberts explained that caps on financial contributions disadvantage those “who do not have ready access to alternative mechanisms for supporting their preferred politicians and policies,” such as volunteering time and energy on behalf of individual candidates. McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014). The aggregate limits, he opined, prevented wealthy individuals from full expression of their First Amendment rights by limiting their ability to engage in this particular form of political participation. Id. at 1448–49.

    [19]   See McCutcheon, 134 S. Ct. at 1448 (“The First Amendment ‘is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.’”) (quoting Cohen v. California, 403 U.S. 15, 24 (1971)).

    [20]   Hellman, supra note 17, at 28–29.

    [21]   See, e.g., Jonathan S. Berkon & Marc E. Elias, After McCutcheon, 127 Harv. L. Rev. F. 373 (Jun. 20, 2014) (parties will be more likely than outside independent groups to spend funds on “maintaining voter records, hiring field staff to work with grassroots volunteers, and investing in technological infrastructure to make voter contact more efficient”); Nathaniel Persily, Bringing Big Money Out of the Shadows, N.Y. Times (Apr. 2, 2014), http://nyti.ms/1gpjVgo (arguing that increasing fundraising capacity of parties will decrease political polarization).

    [26]   Edward B. Foley, The Speaking Ballot: A New Way to Foster Equality of Campaign Discourse, 89 N.Y.U. L. Rev. Online 52 (2014).

    [29]   McCutcheon v. FEC, 134 S. Ct. 1434, 1466–68 (2014) (Breyer, J., dissenting).

    [31]   Burt Neuborne, Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges, 35 N.Y.U. Rev. L & Soc. Change 602, 662 (2011).

    [32]   See generally Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, Perspectives on Politics (forthcoming 2014), available at https://www.princeton.edu/~mgilens/Gilens homepage materials/Gilens and Page/Gilens and Page 2014-Testing Theories 3-7-14.pdf (concluding that “economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while mass-based interest groups and average citizens have little or no independent influence”).

 

This article appears in the October 2014 Issue: Volume 89, Online Symposium