January 13, 2016

Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections

by Richard L. Hasen, Chancellor’s Professor of Law and Political Science, University of California, Irvine School of Law

As I was working on my new book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, a UC Irvine colleague asked me a key question: Who was I writing this book for? The answer I gave him, half-jokingly, was that I had written the book for a single person: Justice Elena Kagan.

You see, before Justice Kagan joined the Supreme Court, she was Professor (and later Dean) Kagan, a progressive thinker to be sure but one who expressed some serious skepticism about a 1990 Supreme Court case, Austin v. Michigan Chamber of Commerce, which upheld the ability of the government to require business corporations to pay for their political expenditures out of a separate PAC fund. Professor Kagan queried whether Austin represented a government passing a campaign finance law to protect incumbents, and whether the Court was wrong in rejecting a First Amendment challenge to the law. The Supreme Court later overturned the Austin case in its notorious 2010 Citizens United case.

The Kagan story ends with Kagan as Solicitor General of the United States defending the corporate PAC requirement in the Citizens United case, then losing that case, then getting an appointment to the Supreme Court despite misplaced conservative cries that she wanted to ban books, and now with Justice Kagan dissenting from the conservative Supreme Court’s deregulatory campaign finance decisions.

In Plutocrats United, I argue for a fundamental rethinking of 40 years of campaign finance decisions, beginning with the 1976 case of Buckley v. Valeo. In Buckley, the Court held that the government might have an interest in limiting money in politics to stem corruption, but not to assure political equality, an interest the Buckley Court called “wholly foreign to the First Amendment.”

In Austin, the Court seemed to reverse course, albeit obliquely, in accepting a political equality argument to justify limits on money in politics. But the Court in Citizens United and other cases has since reaffirmed a rejection of the equality interest.

The Court is now solidly 5-4 against most campaign limits. But what happens if the Court returns to a progressive majority, as may happen during the next president’s administration? Political equality could once again be up for consideration as a compelling government interest to justify reasonable campaign finance limits.

Limiting money in politics does present serious problems, some of which Justice Kagan flagged in her academic work: squelching robust political debate, entrenching incumbents, privileging the press, and potentially having unintended consequences like increasing polarization.

The goal of Plutocrats United is to convincing thinking progressives like Justice Kagan and members of a future Supreme Court majority that it is possible to strike a proper balance. On the one hand, society should be able to decide that those with tremendous economic power should not be able to translate that into tremendous political power. On the other hand, any set of limits and rules must be careful not to squelch too much political speech and competition.

The First Amendment demands to be taken seriously. I argue that a program of campaign finance vouchers for all voters, and generous limits on political contributions and spending, can reasonably balance these goals.

My aim is to start a dialogue among progressives about how best to achieve the balance. At some point a progressive Supreme Court may seriously consider these issues, and we can start giving them the tools now to do so wisely.