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Demons at Democracy’s Doorstep? A Reflection on McCutcheon

This year’s parade of electoral horribles is out again.  Every year that the Supreme Court hears a challenge to campaign finance laws a small band of self-titled reformers cry out in customary despair.  These last two weeks have been no different following the Supreme Court’s decision in McCutcheon v. FEC

McCutcheon asked whether the government could ban individuals from making contributions to a lot of political candidates.  The Court did not touch limits on how much a person could give to individual candidates or other rules stopping things like bribery, conduit schemes, or the like.  It answered quite simply, explaining that government had no interest in managing whether you contributed to 2, 20, or 200 candidates. 

Reform-friendly advocates and scholars like Brianne Gorod or Rick Hasen are worried.  Gorod explains that Chief Justice Roberts is playing a game on us.  By carefully excising these aggregate limits he appears to be modest all the while carrying out a Bond-villain-like scheme to destroy campaign finance as we know it.  Gorod’s beef is that judicial review “produces disruptions to democratic preferences that are not constitutionally required….”  Because unconstitutional laws are not automatically replaced with other speech-repressive laws, this gap of freedom is especially problematic for Gorod. 

Hasen continues the meme, leading him to conclude that it is “hard to see what will be left of campaign finance law beyond disclosure in a few years.” Particularly, Hasen does not enjoy the Chief Justice’s reliance on the fact that other branches of government could solve any real concern about the corruption that campaign finance laws are ordinarily written to combat.  Because of this supposed impossibility, Hasen argues that Roberts “knows that Congress will almost certainly fix neither the Voting Rights Act nor the campaign finance system which he broke.” 

Laws that ban citizens from engaging in the democratic process ought to be broken.  Supreme Court opinions often disrupt democratic preferences—as they are designed to.  Brown v. Board of Education proved quite disruptive and quite positive in securing the equal rights of our citizens.  Citizens United v. FEC, too, worked just the same, disrupting a federal regulatory scheme criminalizing speech and allowing people to freely engage in political discussion.  Not all disruption to democratic preferences is destructive, and that’s what Hasen and Gorod fail to appreciate.

None of us can foresee how Congress will react to Supreme Court rulings or know exactly why the Chief Justice ruled in the way he did.  What we do know is that Congress acted maliciously against the freedom of people to participate in the democratic process.  Reformers continue to drum the beat that campaign finance reform is an absolute good because it helps democracy and ensures diverse voices are heard.  But few reformers consider how many voices have been shut out and how many grassroots coalitions have been muted in pursuing this lofty goal.  When this happens, as it did in McCutcheon, it is proper to strike the offensive laws in question.

There are no demons at democracy’s doorstep today.  But there is reason to celebrate.  In one fell swoop, the Supreme Court has achieved meaningful campaign finance reform we all should support.  McCutcheon allows greater interaction in the political process by citizens enabling them to contribute more broadly and diversely.  It also reduces the amount of time candidates must “dial for dollars” by allowing better funding to occur.  Both of these results are net positives toward freer speech and more rigorous elections.

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Thursday, 19 October 2017
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