Michael Kent Curtis and Eugene Mazo have posted this draft on SSRN (Kentucky Law Journal). Here is the abstract:
This article deals with several campaign finance decisions of the Roberts Court and tries to place them in a much larger context. The larger context helps illuminate why and how these decisions threaten our democratic system. In Citizens United v. FEC, the Supreme Court decided that for-profit corporations can spend money from their corporate treasury funds to support or oppose candidates for public office and that such corporate expenditures “do not give rise to corruption or the appearance of corruption.” The Court assumed this to be true despite a profound lack of experience with what our society would look like with unlimited corporate spending on American political campaigns. Citizens United has since allowed corporations to spend unlimited amounts of their resources on advertisements in the media to influence elections, and this has helped to produce a situation where very wealthy interests have come to dominate American politics.
In another case, McCutcheon v. FEC, the Supreme Court struck down the aggregate limitations that Congress had placed on individual campaign contributions. Previously, a wealthy individual could donate no more than $123,200 during each two-year election cycle to all federal candidates, campaigns, parties, or political committees combined. Now he can give as much as $3.6 million.
In a third case, Davis v. FEC, the Supreme Court struck down a federal provision that increased the amount of campaign contributions a poorly-funded political candidate who happened to be facing a self-financed opponent could receive. Known as the “Millionaire’s Amendment,” the provision tripled the maximum contribution limit for federal candidates whose opponents spent more than $350,000 of their own personal funds to support their campaigns. The Supreme Court struck down this provision, even though the increased contribution limits it allowed would never have gone so far as to permit the less-well-funded candidate to exceed the total amount spent by his wealthy opponent. The Court reasoned, however, that wealthy politicians might be reluctant to spend part of their fortunes on campaign speech if they know that a poorly-financed opponent would have an easier time responding. The Court objected to this provision because the threat of counter-speech made possible by the government might chill a wealthy person’s speech.
In a fourth case, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Supreme Court struck down an Arizona statute that provided for voluntary public financing of campaigns for statewide office. This specific reform, which was enacted by the people of Arizona through a ballot initiative, contained a limited “catch-up” provision that was designed to help a publicly financed candidate who was outspent by a better-funded opponent. If the wealthy candidate opted out of the state’s public financing system and outspent the publicly funded candidate, the state provided the publically funded candidate with limited additional matching funds. This Supreme Court decision again entrenched the right of the wealthy to be free from responsive speech that was assisted by public funds. It also undermined the effectiveness of Arizona’s public financing system.
We believe that these and other recent Supreme Court campaign finance decisions were not correctly decided, in part because the Supreme Court failed to view them within the larger ecosystem they affect. Just as biologists have contributed to our understanding of the world’s ecosystems, explaining how the natural world is populated by different species that are able to thrive and blossom because of the existence of other species in the right proportion, we believe that the political world has an ecosystem. It is an ecosystem where free speech may thrive or wither, and its fate rests on the delicate balance of political influence between most citizens, on the one hand, and extremely wealthy citizens and corporations, on the other. This balance is disturbed when concentrations of wealth funnel into the democratic process through unregulated campaign spending. The Supreme Court, through its decisions in several recent campaign finance cases, has impermissibly altered our political ecosystem in favor of great concentrations of wealth in ways that are now threatening democratic free speech. We argue that this state of affairs is antithetical to the history of the First and Fourteenth Amendments and that it holds grave consequences for our democracy’s future.