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Citizens Divided: The Supreme Court's Next Campaign Finance Test

October 4, 2013

It may seem surprising with the federal government shut down, but across the street from the U.S. Capitol Building the Supreme Court is gearing up for the start of its 2013 Term. And while most Americans already think Congress is doing a bang up job preventing itself from solving the nation's problems, the Court will hear a case on the second day of its new Term that could make it even harder for Congress to address one particular issue: the corrupting influence of money in politics.

McCutcheon vs. Federal Election Commission, a case brought by an Alabama Republican activist and the Republican National Committee, challenges limits placed on the total amount an individual donor can give to federal candidates and party committees and PACs. First enacted in the 1970s in the wake of the Watergate scandal, these aggregate contribution limits work to prevent corruption and the appearance of corruption, and were upheld along with individual campaign contribution limits as constitutional in 1976. Nearly 40 years later, Mr. McCutcheon and the RNC are asking the Roberts Court to strike down the aggregate limit.

The Supreme Court has never--not even in what is perhaps the low-water mark of campaign finance jurisprudence, the Citizens United case--struck down a federal campaign contribution limit as unconstitutional. And it shouldn't do so here.

Congress is empowered to enact campaign finance laws to further what the Court has found to be a legitimate government interest in preventing corruption. McCutcheon and other opponents of campaign finance reform are trying to constrain Congress's legislative authority to passing laws that go after only a very narrow type of quid pro quo, money-for-votes type of corruption, which they say isn't targeted by aggregate contribution limits. But as Senator Elizabeth Warren explained at a recent Constitutional Accountability Center event, "money-for-vote exchanges are not the only threat to our political system." Big-money donors "don't need to be so crude." Even without straight-up bribery, the power of well-funded special interests can tilt our democracy away from the people and toward the powerful.

The founders of our republic knew this well. Original research by Harvard law professor Lawrence Lessig, submitted to the Justices in a friend-of-the-court brief, shows that the founders' understanding of corruption was much broader than what opponents of campaign finance reform would have you believe, focused on what Lessig calls "improper dependence." Our country's founders were worried about officials or government institutions becoming dependent on special interests or big money--basically, dependence on anything or anyone other than the voters on which officials and public institutions are "properly" dependent. As James Madison wrote in the Federalist papers, our democracy should have representatives "dependent on the people alone."

And not just the people who can afford to write big checks to politicians. According to Madison, the people who were to elect the nation's leaders--the people on whom these representatives should be properly dependent--were "not the rich, more than the poor." Unfortunately, as Professor Lessig has explained, our system of campaign finance "distorts and destroys the intended dependence the framers gave us" by forcing elected officials to spend a huge chunk of their time dialing for dollars, calling on a "tiny slice of America" to raise campaign funds.

With the aggregate contribution limits in place, politicians have to raise money from a wider range of contributors. If the aggregate contribution limits are eliminated, however, the number of people funding federal campaigns will get even smaller than it already is. It is entirely reasonable for Congress to conclude that aggregate contribution limits are a way to reduce, even if only in a small way, dependence on special interests. And isn't Congress generally in a better position than the Supreme Court to judge the threat of political corruption and the value of certain preventative measures?

The American people know as a matter of common sense what the nation's founders themselves believed: that big money and special interests in politics are a problem not just because of the potential for bribery or money-for-votes schemes, but also because of the way they corrode the people's faith in our elections and our government. When the Supreme Court Justices return to the bench for their new Term and hear argument in the McCutcheon case, they should support, not hinder, Congress's power to safeguard the integrity of our democratic process. Even if most Americans probably aren't too eager to use the words "integrity" and "Congress" in the same sentence right now.

This post has been cross-posted on Huffington Post
 
 
 
Photo credit: Flickr user 401K2013, used under a Creative Commons licence. 
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