Johanna Kalb at the Brennan Center:
In May, the University of Pennsylvania Law Review Online will publish a series of essays examining the role that political equality could play in the Supreme Court’s campaign finance jurisprudence. The authors in this collection are helping to relaunch a conversation that has been stagnant for forty years.
Today’s constitutional framework for money in politics dates back to the Supreme Court’s decision in Buckley v. Valeo. The Buckley Court was asked to evaluate the constitutionality of the Federal Election Campaign Act of 1974, an extensive package of reforms including limits on contributions and independent spending, disclosure requirements for political spending, and the creation of a system of public funding for presidential campaigns. Defenders of the law argued that regulating political spending was necessary to prevent corruption and promote voter confidence, as well as to equalize the ability of interested citizens to influence electoral choices and run for office. The Buckley Court agreed that preventing corruption or its appearance was a compelling government interest, which justified an incursion on First Amendment rights. However, the Court flatly rejected any government interest in promoting political equality, stating that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. . . .”
Buckley’s rejection of the equality interest was immediately and widely criticized. As time passed, however, attention in political equality arguments quite understandably receded. Instead reformers (and scholars) focused their energies on arguing for a broad understanding of the government’s interest in preventing corruption. In the 1990s and early 2000s, this seemed like a winning strategy. The Court upheld a variety of contribution limits, oftendescribing the government’s corruption interest broadly in terms of the dangers that wealth could pose to the integrity of the democratic process. Then Roberts and Alito replaced O’Connor and Rehnquist, and the newly constituted Court began a concerted effort to dismantle the system of campaign finance regulation by narrowing the government’s interest in preventing corruption to the quid pro quo exchange of cash for votes.
The Roberts Court’s aggressive attack on campaign finance regulation and the recent death of Justice Scalia have created an opening for rethinking the constitutional framework for money in politics. Political equality is back on the table, bolstered in part by success of the Sanders presidential campaign and its focus on the relationship between economic and political inequality in America. More than enthusiasm is needed, however, to move equality theory from the sidelines to the center of the constitutional doctrine. As Rick Hasen has been saying for years (and most recently in his book, Plutocrats United), equality theory is replete with questions that have gone mostly unaddressed by scholars of campaign finance law. We need to understand which form(s) of political equality justify regulation; equality of “inputs” into the political process – or equality of the “outputs” that process creates? We need to have some way of thinking about how much equality is enough, in order to guide the Court in balancing the equality and liberty concerns raised by campaign finance regulation. And, we need to have some idea of how the corporate media operates in this framework.
These kinds of questions (and others) will need to be persuasively answered if political equality is to regain a place in the Court’s campaign finance jurisprudence. The forthcoming collection in the University of Pennsylvania Law Review Online will open a dialogue about the hard questions of equality theory; the contributions include:
- First Amendment Freeze Play: Bennett’s Strategy for Entrenching Inequality, in which Frank Pasquale looks at the impact on equality theory of the Roberts Court’s decision in Arizona v. Bennett;
- A Theory That Fits the Facts, in which Daniel Tokaji and Renata Strause consider ways to build an empirical record that would support regulation to promote equality, with a focus on developing a greater understanding of how lobbying intersects with campaign funding;
- The Federalism Implications of Campaign Finance Regulation, in which Franita Tolson, explores arguments based on the Guarantee Clause and the Tenth Amendment for giving the states more leeway to adopt campaign regulations to promote political equality; and
- Campaign Finance and the Media Exemption Problem, in which Sonja West argues that exempting media corporations from generally applicable limits on political spending is both constitutionally justified and practically possible.
These essays are still only a beginning. While the last forty years have given scholars of election law every reason to succumb to “corruption temptation,” changes both on the ground and in the Court have created a rare moment in which a fundamental rethinking of the rules of our democracy is possible. Now we need to do the work to make it happen.