by Ron Fein, Legal Director at Free Speech For People
Why do we want to limit the influence of money in politics and what do we tell the courts? For 40 years, since the Supreme Court’s 1976 Buckley v. Valeo decision, the legal arguments for limiting big money in politics have been compelled to focus on “corruption” as the only reason.
Not anymore. On Wednesday, Free Speech For People (along with partners Indian Law Resource Center, American Independent Business Alliance, American Sustainable Business Council and retired Montana Supreme Court Justice James Nelson) filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of the state of Montana’s campaign contribution limits against a challenge led by noted campaign finance reform opponent James Bopp. The amicus brief advances a political equality argument. The district court had chastised Montana’s voters, who passed the contribution limits by a 1994 ballot initiative, for trying to achieve political equality.
As background, the Supreme Court’s campaign finance precedent has long insisted that limits on political contributions must be grounded in concern about “corruption” and its appearance. In years past, justices with a pragmatic sense of political reality understood “corruption” to include broader concerns of influence and access; more recently, the Roberts Court constrained it to just mean “quid pro quo” corruption, not much more than bribery. And certainly corruption is one legitimate concern.
But that is not the only, or perhaps even the main, reason that Americans want to limit the influence of big money. A more fundamental principle is political equality. This concept has been part of our constitutional history since before we had a Constitution. “We hold these truths to be self-evident, that all men are created equal,” not equal in assets or abilities but in their unalienable right “to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” So wrote Thomas Jefferson in the Declaration of Independence. And when the Constitution was submitted for ratification by the states, James Madison assured hesitant readers, worried that Congress would be dominated by the wealthy, thus: “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.”