Chief Justice John Roberts this week continued his gradual judicial elimination of America's campaign finance laws, with a decision in McCutcheon v. FEC that eliminates "aggregate" contribution limits from individuals to political parties, PACs and candidates. The decision may not have a catastrophic effect, in a world where individuals were already permitted to donate unlimited sums to independent political organizations, but it is just another move toward the end of regulation of political spending altogether. If Americans want to limit the influence of money on politics, they will have to start getting more creative.
Roberts' specialty is "faux judicial restraint," in which he achieves his radical desired goals over the course of many incremental decisions instead of one sweeping one. In this case, as many observers have noted, Roberts pointed to our current easily circumvented caps on political spending as justification for lifting yet another cap, without noting that the Roberts court helped create the current system to begin with. Our campaign finance laws have not quite yet been "eviscerated," but the trend is clear. Roberts and Justice Clarence Thomas, who penned a partial dissent calling for all regulation of political spending to be eliminated, have something close to the same end goal, but Roberts is willing to be patient in getting there.
As long as Roberts and his fellow conservatives dominate the Supreme Court -- and it seems likely that they will continue to dominate it for years to come -- campaign finance reformers are going to find themselves sabotaged at every turn. As Rick Hasen says: "It is hard to see what will be left of campaign finance law beyond disclosure in a few years."
So, if we think that money in politics is a problem; if we think it creates the appearance of corruption, alienates non-wealthy citizens from the democratic process, perverts incentives for politicians and candidates, and creates an unequal system in which the speech of the rich drowns out the speech of everyone else -- and all of those things are already the long-standing status quo -- we can no longer seek to address the problem by preventing money from flowing into politics. The Supreme Court is clearly not going to meet a new spending restriction that it likes any time soon. Instead of attempting to dictate how the wealthy spend their money, we are probably just going to have to take away their money.
If the super-rich had less money, they would have less money to spend on campaigns and lobbying. And unlike speech, the government is very clearly allowed to take away people's money. It's in the Constitution and everything. I know it wasn't that long ago that it also seemed obvious that the government could regulate political spending, but in this case the relevant constitutional authority is pretty clear and there is no room for a so-called originalist to justify a politically conservative reading of the text. Congress can tax income any way it pleases.
There is one glaring problem with my plan, of course, which is that Congress is already captured by wealthy interests, and is not inclined to tax them. But all I'm saying is that would-be campaign finance reformers ought to give up on their lost cause and shift their energies toward confiscation and redistribution.