Twenty years ago, we had a problem with special interest money flooding the political system. A bad problem. But on the day John Roberts was sworn in as Chief Justice, it was understood that we had some options for controlling the madness.
That was then. With breathtaking speed, the Roberts Court has struck down state contribution limits; centuries-old prohibitions on corporate spending in federal and state elections; and federal and state provisions making it easier for publicly financed candidates to run against wealthy self-financed opponents. And now McCutcheon.
What’s left? While Roberts’ opinion carefully stepped around invalidating anything besides aggregate contribution limits, his opinion’s reasoning lays the groundwork for invalidating any type of contribution limit. And this Court scarcely hesitates before discarding precedent, whether recent (as when Citizens United overruled the seven-year-old McConnell v. FEC) or longstanding (as when McCutcheon overruled the 38-year-old Buckley v. Valeo), to strike down bipartisan efforts to breathe some sanity into our democracy.
Only a constitutional amendment can stop the Roberts Court now. To be sure, we need to step up and defend sensible campaign finance laws in federal and state courts across the country—the fight isn’t over yet. And there are many worthwhile legislative initiatives that we should pursue even today, such as public campaign financing. But the people can’t keep up with the 0.1%, or the 0.01%, in an insane financial arms race for our democracy.
That’s why we need a common-sense constitutional amendment to restore the people’s ability to set sensible limits on the amount of money that can be contributed or spent in elections. Because when the umpire has decided in advance to strike out every single batter, we need to change the rules of the game.
by James C. Nelson, Justice, Montana Supreme Court (Retired)
Justice at Risk, the non-partisan, fifty-state, empirical study sponsored, by the American Constitution Society, concluded that there is a significant relationship between business group expenditures to state Supreme Court justices and the justices’ votes on cases involving business matters. The more campaign expenditures a justice receives from business interests, the more likely the justice is to vote in favor of the business in court cases.
If not created, that bad situation was, at least, exacerbated, by the U.S. Supreme Court’s determination that the ability to spend money is a form of protected speech for First Amendment purposes. From that premise the Court has struck down as unconstitutional, federal, and, concomitantly, state laws which seek to regulate expenditures against and for candidates running for elected office. Most recently, in McCutcheon v. FEC, the Court tossed federal limitations on the aggregate contributions that business entities and the wealthy could spend on campaigns. Make no mistake these decisions apply to judicial elections as well.
For my entire professional life, both as a lawyer and a state Supreme Court justice, I have supported the popular election of judges and justices. I believe jurists should be accountable to the voters. But, I’m changing my mind.
When it comes to judicial elections, I have always believed, and still believe, that when confronted with: (a) a candidate who is simply competent, fair, independent and impartial; or (b) a candidate who is a political hack, essentially bought and paid for by the mega-money contributions and expenditures for negative or misleading TV ads of special and partisan interests, most real people will opt for (a) if they are truthfully informed so as to be able tell the difference between the two. But, the Supreme Court’s decisions in Buckley, White, Citizens United and, now, McCutcheon make it increasingly difficult for state voters to exercise an informed constitutional right to vote – that is, one free from the corrupting, influences of big money and the blitz of negative, misleading TV ads. Like putting lipstick on a pig, the media cookers can make the candidate in (b) look like the Star of the second coming, and the person in (a), like the devil, incarnate.
Thanks to a Supreme Court which seems to believe that big money does not corrupt -- so long as you finesse its giving sufficiently -- I believe that future judicial campaigns will now more likely produce the jurist in (b). The judicial candidate in (a) will not stand a bat’s chance of getting elected, because those types of candidates typically don’t garner much support from big money—type (a) jurists just don’t actively promote the bottom line in their decision-making.
The Supreme Court’s McCutcheon decision today dealt another serious blow to the regulation of money in politics. In its 5-4 decision, the Court struck down the federal aggregate contribution limits, which restrict the amount one person can contribute to all candidates, parties, and political committees combined. As a result, one person can now give more than $3.6 million to one party’s candidates and committees in a single election cycle (under the limits, one could give “only” $123,200 per election cycle). With a sufficiently sophisticated joint fundraising apparatus, this money could be given in response to a solicitation from a single party leader.
While this is troubling by itself, the more sinister part of the decision lies in the groundwork the decision laid for future money in politics cases.
The Court doubled down on its holding that corruption only includes contributions given with the expectation of receiving official action in return — essentially a direct bribe in the guise of a political contribution. The Court also acknowledged that contributions can be used to gain ingratiation with and access to government officials while not reaching the level of outright bribery. But the Court praised this relationship rather than condemning it:
We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. . . . They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.
This vision of the Constitution is wrong. It elevates wealthy donors who can afford to buy influence over 99.99 percent of Americans, who have an equal right to representation. Although the Court may talk in the language of protecting constituents, the outcome is clear — big donors can give to however many candidates they want, regardless of whether they can vote for those candidates or would be constituents of those candidates. This case is about big money, not constituents.
“I realize that my calling the United States a ‘colonial’ nation is repugnant to most Americans,” acknowledged Judge Juan R. Torruella of the U.S. Court of Appeals for the First Circuit at a recent Harvard Law School conference. “[B]ut do you think that the reality of this fact of life is any less repugnant to those of us who find ourselves in the degrading status of second-class citizens, merely because we reside as citizens of the United States in a piece of land that, although belonging to the United States and owing allegiance thereto, has been declared by judicial fiat to be an unequal part of this nation?”
In his keynote remarks, Judge Torruella, who resides in Puerto Rico, expressed frustration and indignance on behalf of the 4 million residents of U.S. territories who remain unjustly bound by the dead hand of the past.
In a series of infamous decisions at the turn of the twentieth century known as the Insular Cases, the Supreme Court established a judicial doctrine recognizing two kinds of territories: incorporated territories, including those acquired before the Spanish-American War, and unincorporated territories, including Puerto Rico, the Philippines, Guam and others. The Court extended only certain rights to residents of unincorporated territories because, as one Yale professor reasoned in 1899, “[it would be unwise] to give … the ignorant and lawless brigands that infest Puerto Rico … the benefit[s] of [the Constitution].”
For more than a century, the Insular Cases have stood as controlling precedent, granting broad congressional authority for governing both kinds of territories and defining their relationship to the Constitution. American Samoa has long borne the brunt of this second-class status; as of 2005, it remains one of only two territories whose residents are labeled as “non-citizen U.S. nationals.” That reality may soon change, however, with a favorable ruling in Tuaua v. United States.
Attorney General Eric Holder this week offered welcome support for ending the practice of felony disenfranchisement. Arguing that “permanent exclusion from the civic community does not advance any objective of our criminal justice system,” Attorney General Holder called for “clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines.”
While the degree of felony disenfranchisement varies by state, eleven states permanently disenfranchise at least some formerly incarcerated persons unless the state’s government approves the restoration of voting rights on an individual basis. Three of those states – Iowa, Florida and Kentucky – permanently disenfranchise all formerly incarcerated persons with felony convictions absent individual rights restoration. An additional 24 deny the right to vote to those who have been released from prison but remain on parole, and 20 of these states disenfranchise those on probation as well.
As a result, approximately 5.8 million Americans are prohibited from voting as a result of felony disenfranchisement laws. These laws have a disproportionate impact on African-Americans, with nearly one in 13 African-American adults barred from voting, including one in eight African-American men nationwide and one in five African-Americans in Florida, Kentucky and Virginia.