SUPREME DISSERVICE

The widely publicized ruling by the Supreme Court on April 2, 2014 in the McClutcheon v. Federal Election Commission is really only an incremental relaxation of the controls on money allowed in the financing of election campaigns. Its importance is not so much in the outcome it will produce (how can the campaign money wreck be more distorted than it already is?) as it is in the language used in the interpretation of the venerable First Amendment of the Constitution to arrive at the majority opinion of the Court in this case.

One has to read the text of this important part of our Constitution to realize how far we, or, rather, the Supreme Court, has strayed from what was written into our Constitution in 1791:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press, or the right of people peaceably to assemble, and to petition the Government for a redress of grievances.”

Can anyone in good conscience believe that the framers of the Constitution wanted to enshrine, with this First Amendment, the right of wealthy citizens to throw whatever money they chose behind their favorite candidates for public office? Of course not. Chief Justice John Roberts Jr. is right when he writes in his majority opinion that, “There is no right more basic in our democracy than the right to participate in electing our political leaders.” We do that by voting and campaigning for our favorite candidates. But should that include the right to throw money at the candidate(s) of our choice?

We only got to where we are by a long creep of wider and wider interpretation, by successive High Courts, of what the right to free speech means for the freedom of individual citizens. In many instances, and certainly in the case of campaign financing rulings, the Supreme Court has protected the right of individuals at the expense of a compelling and very legitimate public interest.

Our democracy would work much better and be in full compliance with the principles laid down in the Constitution if we had a system of public financing of election campaigns – like most all other Western democracies have – that banned all other sources of campaign financing.

Former Senator Alan Simpson said it best when he testified in an earlier campaign-finance case: “Who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about – and quite possibly votes on – an issue?”

How much more effective would our politicians be if they did not have to run around all the time to collect campaign contributions? Without campaign contributions from private citizens, corporations, interest groups and Political Action Committees, how much less beholden would our representatives in public office be to anyone but their true constituency and the public interest?

Justice Beyer, in his dissenting opinion in the McClutcheon case, hit the nail on the head when he wrote that, “The anti-corruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality [of the Court] acknowledges. It is an interest in maintaining the integrity of our public governmental institutions.” And then he wrote: “Where enough money calls the tune, the general public will not be heard.” In his dissent he accuses the deciding majority of the Supreme Court of failing to recognize the difference between influence resting upon public opinion and influence bought by money alone.

As a public we can complain forever about how dysfunctional our political system has become, but we have to realize that one of the root causes of this breakdown in our democracy is that the money-men have come between the citizens (voters) and their representatives. What counts is not what you and I think that needs to get done, what counts is what the large campaign donors want our representatives in Congress to say and do. No one gets elected to Congress anymore unless the candidate is rich enough to finance the election campaign entirely on his own or unless the candidate is willing to cater and pander to the whims of the campaign donors.

Only Congress can lift us out of this morass. By changing the election laws to only permit public financing of election campaigns. But that would require pulling itself out by its own bootstraps. The hurdles for the members of Congress are phenomenal. First it would have the courage and moral fortitude to ignore what the money-men want them to do. And, if they can pull that off, they would have the courage of conviction that cutting the money-men out of the election process can be done without infringing upon citizens’ rights under the First Amendment.

The Supreme Court, in its rulings about the constitutionality of campaign finance laws, has done us a supreme disservice, that now only Congress can undo.