Private: The Occlusion of Equality in Campaign Finance Law

By Daniel P. Tokaji, an associate professor of law at Ohio State University's Moritz College of law and associate director of Election Law @ Moritz; Mr. Tokaji is also a member of the ACS Board of Directors.

Last Thursday, federal courts decided two significant campaign finance cases. In SpeechNow.org v. Federal Election Commission, the D.C. Circuit struck down limits on contributions to a nonprofit group that sought to make independent expenditures for and against federal candidates. In the other case, Republican National Committee v. Federal Election Commission, the D.C. federal district court upheld provisions of the Bipartisan Campaign Reform Act (commonly known as "McCain-Feingold") limiting "soft money" contributions to political parties. These decisions follow the U.S. Supreme Court's January decision in Citizens United v. Federal Election Commission, which struck down a prohibition on corporate expenditures for or against federal candidates.

The details of these cases can be mind-numbing, especially for those who don't closely follow this area of law. Focusing on the details, moreover, can cause us to miss the bigger picture.

This comment steps back from the fine points of campaign finance law to examine the overarching problem with the Supreme Court's campaign finance jurisprudence - namely, its rejection of equality as a central value in our democracy. The body of law that the Court has developed over three and one-half decades has led not only to a stunted constitutional doctrine, but also to an impoverished public discourse. Ironically, the effect of the Court's First Amendment jurisprudence has been to suppress discussion of equality as a justification for regulating politics. For those of us who believe that equality is a central democratic value, a reinvigoration of this discourse is long overdue.

Buckley's Rejection of the Equality Rationale

The central problem can be traced to a sentence in Buckley v. Valeo, the Supreme Court's 1976 decision setting the framework for judicial review of contribution and expenditure limits. According to Buckley: "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." With these words, the Court took off the table the argument that spending limits might actually enhance our democratic discourse. Buckley presumed that a system of unlimited campaign expenditures works best and, at the same time, eliminated the promotion of systemic equality as a basis for spending limits. The prevention of corruption or its appearance became the sole permissible justification for limits on individual spending.

In the decades following Buckley, the constitutional debate over campaign finance too often got sidetracked over whether money was really speech or, as Justice Stevens argued, "property ... not speech." This is the wrong question. Whether or not money is speech, it clearly facilitates political expression. Money is necessary to have one's political views heard, and therefore to participate meaningfully in campaign-related debates.

The observation that money facilitates speech doesn't end the constitutional inquiry, however, but is just the beginning. If one accepts the proposition that money facilitates political speech, a corollary is that those without resources aren't able to participate meaningfully in the conversations of democracy. The have-nots in our society therefore enjoy less political influence than the haves - and much less than the have-alots. In a society committed to political equality, this state of affairs is deeply troubling.

Citizens United and the Occlusion of Equality

Buckley eliminated equality as a justification for individual spending limits. When it came to corporate expenditures, however, the Supreme Court's opinion in Austin v. Michigan Chamber of Commerce allowed limits due to "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form." This is a form of the equality rationale, albeit a narrow one - and an outlier from the rest of the Court's campaign finance jurisprudence, which disallowed equality as a rationale for spending limits. The Court's decision in Citizens United this January hammered the last nail in equality's coffin, expressly overruling Austin's anti-distortion rationale.

Citizens United may have brought greater consistency to the law, but it did so by rejecting a value central to our democracy. By eliminating equality as a justification for limits on corporate campaign spending, the Supreme Court has further distorted the public discourse over the rules that should govern the political process. Equality is the idea that, like Voldemort, must not be named. 

The most harmful consequence of the Court's campaign finance jurisprudence, from Buckley to Citizens United, is the occlusion of equality as a democratic value. Yet political equality is a principle that the Court has recognized and, indeed, held constitutionally required in other contexts.

An example is the "one person, one vote" principle, based on which the Court struck down legislative districts of unequal size in cases like Reynolds v. Sims. An even more helpful example is Harper v. Virginia, in which the Court struck down state poll taxes, on the ground that they improperly make wealth a measure of one's qualification to vote. Harper was right to hold that one's personal resources shouldn't impede the right to vote. The same is true with respect to other forms of political participation. Without some limits on campaign spending, wealth will invariably be a determinant of political influence - including both who gets elected to office and what laws they pass (or choose not to pass) once in office. 

Resurrecting Equality

Last week's decision in SpeechNow.org exemplifies the consequences of the Court's occlusion of equality. Federal law purports to limits contributions to groups like SpeechNow, which seeks to spend money for and against candidates for federal office.

As explained above, preventing corruption and its appearance is the only permissible basis for spending limits. Because SpeechNow planned only to make independent expenditures, the D.C. Circuit concluded that there was no real risk of corruption arising from contributions to that group. Under settled law, which holds that equality isn't a legitimate justification for contribution limits, that was the only reasonable conclusion. But if equality were a permissible rationale, the case would have come out the other way. Even without coordination between federal candidates and SpeechNow, a lack of regulation tends to give wealthy donors an advantage over the rest of us, in their superior ability to influence the political process. 

Until equality is given a place in conversations over campaign finance regulation, the prospects for meaningful reform are extremely limited. For progressives seeking to promote democratic equality, the task is twofold. In the short term, we need to prevent the Supreme Court from doing further damage to existing law. This will require a defense of cases like RNC v. FEC, which challenge what is left of McCain-Feingold and other laws that limit campaign spending.

In the long term, we need to reinvigorate the discourse over campaign finance, by resurrecting equality as a justification for regulation. The current Supreme Court will not be receptive to this argument, but this Court will not sit forever. We need to develop a new jurisprudence, one that respects the ideal of all citizens being able to participate as equals in the conversations of democracy. As advocates, academics, and ordinary citizens, we must lay the groundwork for this new jurisprudence and, by doing so, help reinstate equality as a central value in our democracy. 

Campaign Finance, Constitutional Interpretation, Democracy and Elections