Madison's Music (10 page)

But the justices didn't stop there. The key to the nineteenth-century culture of vibrant minor parties was the ability of a minor party to cross-endorse a major-party candidate, giving adherents the ability to cast a vote for the minor party's ideological position while playing a genuine role in the choice of who wins the election. Often a cross-endorsing minor party would poll the deciding votes in an election, opening the way to negotiations on assimilating its ideological positions into the major-party platforms. The power of minor-party cross-endorsements was not lost on the leaders of the major parties. From 1900 to 1910, forty-one states under the control of one or the other of the major parties outlawed cross-endorsements, putting an end to vibrant minor parties in the
twentieth century. In 1997, six justices upheld a Minnesota cross-endorsement ban against a minor party that sought to endorse the candidate of the Democratic Party and a Democratic candidate who wished to accept the minor-party endorsement.
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To make things even worse for democracy, the justices formally recognized a legitimate state interest in preserving the duopoly power of the two major parties.

So under current constitutional ground rules, the two major parties are treated as autonomous private associations whenever political bosses want to prevent outsiders from challenging their powers, but then they morph into protected wards of the state when a minor party threatens the duopoly of the two major parties.

Madison would be aghast.

The Supreme Court has even rejected the last gasp of the alienated voter, the ability to cast a write-in protest ballot. In 1992, a voter in Honolulu wishing to cast a write-in ballot (unfortunately, for Donald Duck) argued that casting a write-in ballot is the quintessential act of political protest. The Supreme Court majority, utterly deaf to Madison's music, rejected the idea that voting is a First Amendment–protected exercise of political expression and association, viewing the casting of a ballot as nothing more than an instrumental means of choosing a public official to govern.
⁴⁴
Because Donald Duck can't govern, reasoned the Court, you have no First Amendment right to vote for him—or anyone else who can't possibly win. Some instrumental choice: the nomination is rigged by party bosses, the general election is gerrymandered into insignificance, third parties have been strangled, and you can't even cast a write-in protest vote.

FUNDING DEMOCRACY

That brings us, may the gods help us, to the Supreme Court's treatment of campaign finance. As we've seen, by applying the equality-driven law of democracy, the Supreme Court has set the dial on the interplay between motive and democracy at about the worst
possible place, encouraging cynics to seek to suppress the vote but discouraging idealists from seeking to undo the continuing political consequences of past racial discrimination. In the political gerrymandering cases, the Court has announced itself powerless to act while political leaders of the two major parties cement incumbents into office, unfairly draw electoral lines to benefit the party in power, and turn genuinely contestable legislative elections into an endangered species. In the major party duopoly cases, the Court has surrendered control of the major party nominating process to the political leaders of the two major parties, blocked minor parties from challenging the major parties' hegemony, and failed even to protect write-in protest voting. But it is in the campaign financing cases that the Supreme Court has reached its democratic low point. If a sworn enemy of democracy had been given the task of designing our campaign funding system, that enemy could not have done a better job of sabotaging Madison's music than Frankfurter's armchair political scientists wearing black judicial robes.

In 1974, in the wake of Watergate and the ugly campaign-spending scandals during the Nixon administration, political momentum built in Congress for an effort to reform the excessive role of big money in American politics. Instead of a genuine reform bill, though, Congress sought to purge almost all money from elections, a “reform” that just happened to coincide with the best interests of powerful incumbents. Election spending by presidential candidates was capped at two thirds of the paltry amount spent in 1972 by George McGovern in the worst presidential loss of the twentieth century. Congressional campaign spending was similarly capped at unrealistically low levels. Campaign contributions were limited to $1,000 per candidate per election. Election spending by independent supporters of a candidate was capped at less than the cost of a quarter-page ad in the
New York Times
. Finally, candidates of the two major parties were to receive discriminatory subsidies that were unavailable to independents and third parties.

In short, under Congress's 1974 “reform” agenda, it would have been illegal to spend enough money to oust an incumbent, and
the duopoly of the two major parties would be reinforced. I joined a team of ACLU lawyers challenging the reform statute on behalf of, among other folks, James Buckley, the Conservative Party senator from New York. I focused my efforts on the unfairness of using discriminatory public subsidies to further cement the hegemony of the two major parties. Predictably, that argument lost. The Supreme Court didn't break a sweat in upholding the discriminatory subsidies. Only Chief Justice Rehnquist agreed with me. The Court also upheld the ceiling of $1,000 (now $2,600) on campaign contributions to a candidate in connection with a given election. Because most election cycles include two elections—a primary election and a general election—the current de facto ceiling in any election cycle is usually $5,200 per candidate. The
Buckley
Court also upheld aggregate ceilings on the total amount that any donor could contribute to all candidates and political parties in a given election cycle (now $123,200), but the current Supreme Court, reversing that part of
Buckley
, struck down the aggregate limits, leaving only the individual candidate ceiling of $5,200 in effect.
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It is now possible, therefore, for a single billionaire to contribute unlimited sums to political parties and multicandidate committees, as long as no candidate gets more than $5,200. Given the substantial number of eligible candidates and other eligible political entities, by my count, a donor can now cut a check to party officials for up to $3.2 million in connection with each election cycle, and leave it to them to distribute the largesse.
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Having upheld limits on campaign contributions to individual candidates, the
Buckley
Court then went on to strike down Congress's effort to place ceilings on how much a candidate, or an independent supporter or opponent of a candidate, could spend on trying to influence the outcome of an election. The net result of upholding the half of the law limiting contributions while striking down the other half regulating spending was a campaign finance system that no rational person would have chosen and that not a single member of Congress had supported.
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Without considering its impact on democracy, the
Buckley
Court created a hybrid
campaign finance system for candidates and political parties that limits the supply of campaign cash raised through contributions, but leaves demand wholly unregulated. In effect, the justices built a campaign finance system that unwittingly replicates the nation's catastrophic approach to heroin and cocaine—concentrate all your efforts on interdicting supply but pay little or no attention to reducing demand. It doesn't work for drugs. It doesn't work for campaign financing.

Worse, because independent spending was left wholly immune from regulation, ideological outliers unconnected to the candidates or the two major political parties were given a huge financial advantage. Welcome to the Koch brothers, who have spent countless millions seeking to control our political agenda and influence our elections. If anything good can be said about the Supreme Court's recent invalidation of aggregate contribution limits, it is that the 650 billionaires who hit the aggregate contribution ceiling in the last election can now purchase undue influence directly from a political party, so now party officials can get their hands on some of the big money that was being spent independently. Maybe that will enable party leaders, who tend to seek to build broad coalitions needed to win elections, to stand up to big-spending ideologues like the Koch brothers. But that's where the good news ends. It's now a regime of “one dollar, one vote.” Billionaires have a choice: they can buy undue influence independently, à la carte, or purchase it directly from party leaders in a prix fixe deal.

The
Buckley
Court's decision to approve stringent limits on campaign contributions to individual candidates but strike down
all
limits on campaign spending rests on a series of fiercely contested propositions of law that, taken together, have been a democratic disaster. First, the Supreme Court ruled that the act of spending money to elect a candidate is a form of “pure speech,” entitled to the highest level of “strict scrutiny” free-speech protection. Eight years before
Buckley
, the Supreme Court had ruled that the act of burning a draft card to protest the Vietnam War was not pure speech but rather “communicative conduct” entitled to only a
watered-down level of First Amendment protection.
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Sixteen years after
Buckley
, moreover, the Court ruled that the act of attempting to cast a write-in protest vote isn't even communicative conduct, much less pure speech, and is not entitled to any First Amendment protection at all. Why the
act
of spending gobs of money to sway an election is “pure speech” but the
acts
of burning a draft card and casting a write-in protest ballot are not is a secret known only to certain members of the Supreme Court.

Deciding whether a political contribution is pure speech or communicative conduct is more than just an exercise in semantics. The level of First Amendment protection depends on which box you check. If, like a majority of the Supreme Court, you check the pure-speech box, you trigger First Amendment strict scrutiny, a lethal form of judicial review that requires the government to prove that the regulation at issue is the “least drastic means” of advancing a “compelling” government interest in preventing a grievous and immediate harm. The government almost never wins a First Amendment strict-scrutiny case. On the other hand, if you choose the communicative-conduct box, the regulation will be upheld if it is a “narrowly tailored,” good-faith effort to advance a “substantial” governmental interest unrelated to the suppression of speech. As the draft card–burning case illustrates, the government usually wins under the less stringent standard of review. Unlike the Fourteenth Amendment equality cases discussed earlier, which require a showing of impermissible purpose, First Amendment strict-scrutiny cases are decided on the basis of the law's
effect
, not its
purpose
. Good intentions just don't count. Not surprisingly, in the thirty-eight years since unlimited campaign spending was equated with pure speech, no effort to limit campaign spending has breached the strict-scrutiny wall.

To defend the
Buckley
Court's position that money literally “talks,” Justice Brennan compared a political campaign to an automobile and campaign spending to the gas in the tank. Because a candidate's campaign can travel only as far as the cash in its tank will take it, Justice Brennan reasoned that campaign spending is so
integrally related to campaign speech that it must receive identical First Amendment protection. But an election is not a drive in the country. It's a race. Who'd bother to get excited about a race that depended on which pit crew had more gas? Moreover, education is also crucial to being able to speak effectively, as is access to mass media, but no one argues, alas, that poor people have a First Amendment right to an adequate education or access to the mass media.

Justice Stevens, who didn't participate in
Buckley
, never accepted the Court's decision to treat money as pure speech. Despite his repeated protests, however, the flawed analysis that equates the unlimited spending of money with pure speech has been cemented into Supreme Court precedent, making it all but impossible to stem the tide of big money engulfing our democracy.

Second, the
Buckley
Court held that preventing massive wealth-driven electoral inequality is not a “compelling governmental interest” that would justify placing reasonable limits on runaway campaign spending by the superrich. Defenders of campaign finance reform had argued that even if spending money is equated with pure speech, maintaining a modicum of political equality between the 1 percent and the rest of us is a sufficiently important interest to qualify as “compelling,” even under First Amendment strict scrutiny. The Supreme Court has never confronted that argument head-on. Instead, the majority has argued that limiting the electoral spending of the superrich is not the “least drastic means” of dealing with economically driven political inequality. Subsidizing the weak speaker, reasons the Court's majority, is a less drastic way to advance political equality. But in a move that smacks of hypocrisy, the five Republican justices then ruled that public campaign subsidies cannot be “matched” to the spending of a privately funded candidate because that would “penalize” the private candidate for exercising his First Amendment right to raise and spend unlimited amounts of money. Why it is an unconstitutional “penalty” to make a wealthy candidate operate on a level electoral playing field is another secret known only to the five Republican members of the Supreme Court.

How can it be that protection of the two major parties from competition justifies laws preventing minor parties from cross-endorsing a major party candidate or from inviting members of the major parties to vote in the minor parties' primaries, but laws seeking to preserve a modicum of political equality between the massively wealthy and the rest of us are unconstitutional?