"Money is property, not speech"

Did the Supreme Court open the door to tougher campaign-finance laws?


Bruce Shapiro
January 27, 2000 10:00PM (UTC)

The political future of the United States was altered on Monday. But it wasn't in Iowa.

While the candidates, cameras and columnists swept the state's cornfields trying to stitch news out of Monday's caucuses -- news as ephemeral as a corn-husk scarecrow -- the U.S. Supreme Court issued two rulings of far greater import for the shape of American elections in coming years, starkly laying out the fault lines of this presidential contest.

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One decision concerned what so far has been the defining issue of the presidential campaign: money in politics. By a 6-3 vote, the justices upheld strict dollar limits on political contributions -- setting the court foursquare against George W. Bush, who, like all and all the other GOP candidates except John McCain, would like to banish campaign fund-raising caps imposed in the 1970s.

In legal terms, the news from the court was simple and narrow, upholding a Missouri law limiting contributions in statewide elections to $1,075 per candidate. But the national resonance is far greater. Until Monday, the free-money crowd like Bush and Kentucky Sen. Mitch McConnell argued that campaign contributions are just a form of political speech, protected by the First Amendment. They hoped -- even expected -- that a court dominated by Reagan-Bush conservatives would agree with them and overrule Buckley vs. Valejo, the post-Watergate decision that first held that campaign-contribution limits pass constitutional muster.

Monday's opinion blows the free-money crowd out of the water. "Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance," wrote Justice David Souter in the passionate majority opinion -- an opinion cutting sharply across ideological divides with Souter, a Bush nominee -- joined by Nixon-appointed Chief Justice William Rehnquist, Reagan-appointed Sandra Day O'Connor, Ford-appointed John Paul Stevens and Clinton appointees Ruth Bader Ginsburg and Stephen Breyer. Wrote Stevens: "Money is property. It is not speech."

In the short run, Monday's decision moves the center of argument away from whether individual contributions should be regulated to how the regulation should be done. It gives tacit support to state-level clean-money reform schemes, like the one in Maine, that allow candidates to "opt into" 100-percent public financing by renouncing private donations. Candidates are more likely to opt into full public financing systems if they know their opponents who choose not to do so will be operating under strict constraints.

But the longer-run impact of Monday's decision is even more tantalizing. In its 1976 Buckley vs. Valejo decision, the Supreme Court made a crucial distinction which has come to haunt American politics: between "contributions," which could be limited, and spending, which according to Buckley can shoot into the stratosphere without constraint. As Justice Anthony Kennedy, who voted against Monday's ruling because he would like to get rid of Buckley, remarked, this one-sided regulation created not clean elections and free expression but "covert speech funded by unlimited soft money."

Justice Kennedy's words raised for the first time the prospect that even this conservative Supreme Court might be ripe for wholesale reconsideration of the campaign-spending question -- which would amount to a revolution in how American elections get run. In Monday's multiply divided opinions, dissents and concurrences, the only two justices who would keep government's regulatory hand off campaign contributions altogether were arch-conservatives Clarence Thomas and Antonin Scalia.

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Indeed Justice Kennedy -- generally considered a hardline conservative libertarian -- directly suggested he would "leave open the possibility" of "a system in which there are some limits on both expenditures and contributions, thus permitting office-holders to concentrate their time and efforts on official duties rather than fundraising."

As Ellen Miller, founder of the finance-reform group Public Campaign, puts it: "The court has affirmed what nearly every American believes, that big money plays a pernicious role in our politics and that we have a compelling interest in reducing the corruption ... that results when candidates are dependent on large private contributions to pay for their campaigns."

If Monday's campaign-contribution ruling could help break up the overwhelming power of big contributors, another ruling that same day could have nearly as great an effect on politics -- but in a far different direction. By a 5-4 vote, in Reno vs. Bossier Parish School Board, the justices took away much of the Justice Department's power to intervene on behalf of African-American voters in redistricting cases.

Twenty percent of the population of Bossier Parish is black. But for years, the parish's all-white school board drew lines ensuring that not one of 12 voting districts had an African-American majority. The same exercise was repeated after the 1990 census. The result: Bossier Parish's all-white school board has remained all-white. The Justice Department, which under the 1965 Voting Rights Act is required to approve districts in states with a history of segregation, cried foul: The school board, Justice said in a 1998 lawsuit, was deliberately continuing the discrimination of the past.

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On Monday, the court -- this time, an undivided conservative bloc -- offered a radical new interpretation of racial discrimination in politics, and by extension of the Voting Rights Act. Washington had no right to intervene in Bossier Parish or anywhere, wrote Justice Scalia for the majority, because those newly drawn districts don't leave blacks worse off than they were before. Never mind that the new districts were continuing a decades-old scheme to keep blacks from political office: Justice Department intervention is permitted only to prevent "backsliding."

The decision provoked an explosive dissent from Souter, who declared that the Justice Department will henceforth be required to approve "unconstitutional voting schemes patently intended to perpetuate discrimination."

Monday's ruling takes a sledgehammer to one of the cornerstones of voting-rights enforcement, leaving the right to bring discrimination suits almost entirely in the hands of individuals -- who especially in the rural South rarely have access to the legal resources necessary for such challenges.

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"This ruling gets worse and worse the more closely you look at it," says professor Pamela S. Karlan of the Stanford University law school and a leading voting-rights scholar. "The point of the 'preclearance' requirement in the Voting Rights Act was to shift the burden of challenging discrimination away from individual voters. It was to shift the burden of initiative to the perpetuators of discrimination. Now the court is shifting that burden right back to the very people the law is supposed to protect.

"What the court says is: As long as things don't get any worse, you won't have the government breathing down your neck. Even if things couldn't get any worse than they are. You can't get any lower representation than zero."

The Bossier Parish case is only the latest blow by the current Supreme Court to the underpinnings of voting-rights enforcement, and in particular the Justice Department's power to force redistricting plans that ensure African-American majorities where segregation held the force of law. "The cumulative effect," says Karlan, "is that the major source of Justice Department pressure has been turned off."

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Coming just months before the 2000 census and the national redrawing of voting districts to follow, Monday's ruling in the Bossier Parish case is sure to shift the balance of power in the South and in some Northern cities, diluting not only African-American voting strength but as a result, in some areas, weakening the post-reapportionment prospects of Democrats. Taken together with Monday's campaign-finance ruling, it also indicates how deeply the makeup of the Supreme Court in the next few years -- over which the next president will likely have profound influence -- will affect not just one or two hot-button issues but the fiber and sinew of American political life.

While religious conservatives prod Bush to match the Steve Forbes-Gary Bauer standard on opposition to abortion rights, the court itself is pointing out just how broad and deep are the stakes in the coming election.


Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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