The U.S. Supreme Court’s decision this week in Vermont’s campaign finance reform case (Randall v. Sorrell) further tightens the hegemonic grip that corporations already have around the neck of democracy. The Court’s deference to the rights of corporations is not new, but when it prevents efforts to control corporations’ political influence, it tips the balance against resuscitating what’s left of our strangled and almost lifeless democracy. We need to ask ourselves what a broad-based movement to renew the vital core principles of democracy can do, given this kind of judicial hostility to campaign finance reform?
Judicial reasoning in cases that challenge campaign finance reform has turned on whether contributions to campaigns or expenditures by candidates are being controlled. In Buckley v. Valeo, 424 U.S. 1 (1976) the Supreme Court upheld substantial parts of the Campaign Reform Act of 1974, including limits on campaign contributions. But in Buckley, the Court did not support efforts to limit expenditures in election campaigns.
The Court found that imposing limits on the amount of a contribution to a campaign is consistent with First Amendment speech rights, because contributors to election campaigns have multiple alternative ways to express their political ideas and opinions. But legislatures have not been permitted to impose limits on campaign expenditures, because these expenses are construed to be directly related to the political speech rights of the candidates themselves. The Court in the Vermont decision maintains this distinction between limits on contributions and limits on campaign expenditures.
Thus, this fragmented decision does little to advance our thinking on campaign finance reform. Moreover, there is no true majority in this decision. Justice Breyer wrote the lead opinion, joined by Justices Roberts and Alito, finding that the Vermont limits on individual contributions – $400 to state-wide campaigns, $300 to state Senate campaigns and $200 to state representative campaigns – are too low to meet a constitutional threshold for campaign contributions.
Breyer et al. found that Vermont’s limits on expenditures for electoral campaigns were unconstitutional, primarily because they did not believe the Vermont legislature raised any new “important state interests” to justify limiting candidates’ expenditures. A valid criticism, since the legislature did not pose the broadest argument for the rights of the citizens – as a collective body – to the most democratic forms of self-governance.
Justice Kennedy, who joined the Breyer opinion, expressed deep skepticism about where the Court is going in their decisions on campaign finance reform. Thomas and Scalia, not surprisingly, supported the decision of the Court but not the reasoning or logic used by Justice Breyer. As a result, this 6-3 decision is more accurately a 3-3-3 decision that has little real precedential value in framing a direction for campaign finance reform law. No one can really tell the direction that the Court would take in the future on similar challenges to campaign finance reform laws.
In his dissent, Justice Stephens boldly asserts that Buckley’s holding on expenditure limits would not prevent the Court from upholding limits on campaign spending for two reasons: (1) there are significant government interests favoring the imposition of expenditure limits – these limits serve as important tools to reduce corruption in legislatures and they protect equal access to political arenas – increasing individual participation in and responsibility for democracy; and (2) expenditure limits do not interfere with effective speech in political electoral arenas – this speech depends not on “flooding the airwaves with ceaseless sound bites of trivial information” but on a candidate’s ability to effectively communicate face-to-face with an electorate.
The constitutionally compelling point to support states’ imposition of limits on money spent in state campaigns is that these limits contribute to creating the conditions of real participatory and deliberative democracy.
Legislatures and litigants should articulate a more robust argument for the states’ interests in limiting expenditures in elections. We need to go to the core of the problem in democracy posed by systemic and corrupting consequences of a political structure that selectively biases candidates’ viability by whether they have personal wealth or the ability to please corporate interests, as a condition to “speak” politically
An argument from democracy is missing in the Vermont campaign reform case, and its omission is a weak point in the respondents’ presentation of the facts and arguments. Justice Souter reframes an argument made by Vermont that it is interested in protecting the time of candidates and elected representatives from being devoured by a pernicious escalating treadmill of campaign fundraising – as an argument for sustaining democracy and conditions that enable democratic elections. If candidates spend inordinate time raising campaign funds, their time and ability to participate with “the people” in robust debates of issues and to encourage constituents to get involved in the process of democratic elections is deeply compromised.
What is at stake in campaign finance reform laws is DEMOCRACY. Democracy is not realized by the right to vote alone. It involves much more than a right to vote, which to some degree is democracy reduced to political consumerism (choose who you want to represent you and go home). Democracy requires deeper participation, in the form of popular self-government. In a real democracy, “the People” govern, while corporations are to be governed. Today we live in a system of corporate hegemony – where the Court privileges the speech rights of companies in politics, in media ownership, in the pervasive spread of advertising, while it is unwilling to protect the rights of people to impose constraints on corporate political power and protect the liberties of people.
Judicial evasions of campaign finance reforms have thus inverted democratic self-governance. When money is treated as speech, the wealth of large multinational corporations is translated into excessive political power, privileged access to candidates and elected officials, and ultimately, an ability to broadly set the direction for policy and (with the help of lobbyists) influence legislative outcomes.
If no one in Vermont can contribute more than $400 to a governor’s campaign, $300 to a state Senate campaign or $200 to a state House campaign then ordinary people, and not just wealthy individuals and corporate actors would feel just as entitled to access to a member of the Vermont state House and Senate as corporate lobbyists. This is what democracy should be – the people have access to candidates in elections and to elected representatives in enacting legislation.
The Vermont legislature enacted its campaign finance reform law in recognition of Monsanto’s attempts to use large campaign contributions and aggressive lobbying to influence a bill that would require that milk products containing milk from cows treated with bovine growth hormone be labeled. BGH is a Monsanto product, used to increase milk production. Cows treated with BGH increased their production of milk, but frequently, they also suffer udder infections that leached into the milk.
The labeling issue is important to Monsanto, given consumer and religious concerns about its line of genetically engineered (GE) food crops – including wheat and soy beans – which they also do not want to be required to label. They claim labeling of food products would be a form of compulsory speech, guided by public health interests. The company needed to stymie any precedent, and would go to considerable lengths to do so. Yet Monsanto and BGH had been swept under the rug by the time this litigation reached the U.S. Supreme Court.
Monsanto’s aggressive attempts to influence the government of Vermont are, in effect, an attack on the citizens of Vermont, who should have every right to govern themselves and enact legislation that serves their health needs and their local economy without the interference of global giants like Monsanto.
Therefore, a key question that the Court did not address in the Vermont campaign reform case is “Whose political speech is to be protected” in the constitutional scheme of democracy? We are debating the fundamental meaning of democracy in campaign finance reform litigation and we are not framing necessary questions or demanding answers. We need to reach a common understanding of how political speech by the people contributes to the institutions of democracy and the everyday practices of democracy. And we need to argue that limits on electoral campaign expenditures contribute to preserving this constitutionally recognized democracy and its essential speech rights.
Maud Schaafsma is a lawyer and a sociologist in Chicago. She works on policy analysis with The Center for Corporate Policy in Washington DC.