The Roberts Court’s five conservative justices dealt a fresh blow to campaign finance reform Wednesday, quashing overall limits on campaign contributions.
“The interests of the 99 percent … are going to be further drowned out,” argued attorney Chisun Lee, counsel for New York University’s Brennan Center for Justice. Lee accused Chief Justice Roberts, who wrote Wednesday’s controlling opinion (McCutcheon v. Federal Election Commission), of misrepresenting the issues, narrowing the definition of corruption, and substituting the courts’ judgment of the facts for elected officials’. A condensed version of our conversation follows.
What will this decision mean for U.S. politics, and where in particular will the impact be felt?
It elevates the power of the wealthy donor, the person who can afford to spend more than six figures in a federal election cycle … even further above the rest of us in the 99 percent. The court has said that contributing money to buy access to the political process is what democracy is all about. And this furthers the power of elites in American politics today, and we’re going to be working very hard to beat that back.
How is the median American citizen going to be affected by this?
The average American citizen’s voice in politics will have to compete that much harder against special interests, who can now spend exponentially more money to gain influence over the political process. How this will play out in specific policy decisions, no one can say today. But the interests of the 99 percent, or even the citizen of moderate means, are going to be further drowned out by the greater power of wealthy donors.
In that controlling opinion, Justice Roberts writes that, “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Why do you disagree?
What we disagree with is the elevation by Chief Justice Roberts’ opinion of the right of the wealthy donor to buy influence, to the level of the freedom of the press. And we do disagree that that is what the First Amendment stands for.
In your view, what limits, if any, does the First Amendment impose on campaign finance regulations?
Well, first, today’s controlling opinion does nothing to strike down individual contribution limits, or corporate or union contribution limits. The controlling opinion says that they’re still in place. And we all know why those are incredibly important, which is to prevent corruption or the appearance of corruption of our elected officials. And we would argue that the First Amendment permits much stronger protections to ensure the integrity of the political process … I would just point you to the dissenting opinion today, which paints a much more inclusive and robust vision of democracy as protected by the First Amendment …
There are a great number of further regulations and progress that can be made. First of all, there’s the area of disclosure -- increasing disclosure, making disclosure rules more robust. Chief Justice Roberts today actually points to the fact of dark money … he mentions that the wealthy donor who wants to evade public notice at the moment can contribute to 501(c)4s, and not be required to disclose. We are working hard on changing that. Because as you know very well, (c)4s have been hugely active in influencing electoral politics. And the Supreme Court has always said that robust disclosure is important to deter political corruption, and inform voters as to whose money is influencing our elected officials. Disclosure is a huge area for further reform.
Another specific area of regulation that the First Amendment perfectly permits, even under the current Supreme Court’s jurisprudence, is working on enacting [a] small-donor-based public financing program. We came very close in Albany this year. We may get closer still before the legislative session closes in June. And this is a way … in very practical terms, of elevating the voice of the average voter through matching funds and a system that prioritizes the people and incentivizes candidates to listen to more people. And to work to win the support of more people, because this greater and wider support will translate to practical dollars that can be spent helping to get elected …
Chief Justice Roberts and the justices who join him … imagine a number of new regulations that can be put in place to prevent circumvention of contribution limits. Because again, the justices agreed that preventing circumvention is a legitimate goal for government … Even the plurality today said that the door is open to working on stronger rules, stronger enforcement, and making sure that the laws on the books work to protect the political process.
What’s your assessment of the “compromise” that was produced under [New York Gov. Andrew] Cuomo … on public financing and ethics?
We think that the process toward getting there achieved great momentum, and lasting momentum in this state, toward a bigger, more robust public financing system. But the deal that was reached falls far short of what we believe is a comprehensive system that would prevent the kind of corruption and outsize influence of special interests that were documented by the Morehead Commission.
On corruption, Roberts wrote in today’s decision that “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties.” How do you assess that assessment?
Chief Justice Roberts is narrowing the concept of corruption to essentially bribery, which is already against the law. And to say that that is the sole problem that warps the political process reads the First Amendment protections of democracy far too narrowly.
Roberts also wrote that, “In assessing the First Amendment interests at stake, the proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good.” Is he correct?
I think that that is a misleading framing of a more democratic vision of the First Amendment. The value -- the constitutional value we … care about is a democratic process that is open to and responsive to all individual voters. The people who are not in the wealthiest 1 percent also are individuals, participating in a democracy that is supposed to be responsive to them.
And so to frame the question as the individual wealthy donor versus the public -- the collective good -- I think is a misleading way to talk about what the dissenting justices and advocates for reform really care about.
It’s often been speculated that Chief Justice Roberts is sensitive to the status of the Supreme Court in American life. What, if anything, does this decision tell us about his court or his jurisprudence?
One thing that’s very striking about his opinion today is that it ventures very far into areas of judgment and policymaking that have historically been the province of the elected branch and the executive agency that polices this area, which in this case is the FEC …
You saw glimpses of this in Citizens United, and in previous campaign finance decisions, where the court appears to substitute its own judgment, its own ideas of what is plausible or implausible in the world of American politics, for the judgment of Congress when it enacted these laws, and for the judgment of the regulatory agency which sees disputes happen in real life every day. And many would argue that this is not the role of the court.
And while it does that on the one hand, it also has made these huge decisions affecting money in American politics without a robust factual record … The chief justice’s opinion says that they don’t need to send the question back down to the trial court for the development of an evidentiary record. And yet in its reasoning, the chief justice’s opinion considers many questions of fact -- in other words, “How do things really work?”
… It’s a fair question to raise about the Roberts Court’s jurisprudence on campaign finance: Whether it is proper for it to substitute its own judgment -- for the way the world works, the way politics works and what’s needed to prevent corruption in politics -- for the judgment of the legislative branch mainly, and the executive agency in charge of implementing the laws.
As you mentioned, the decision gestures at the possibility of other kinds of legislation from Congress. Where does the campaign finance fight go now? Are there more defensive fights that you expect to fight now on this at the Supreme Court? Is there a greater prospect for your side to make progress on winning public financing than on advancing or defending restrictions on spending or contributions?
Well, I think it’ll have to be a multi-front strategy. Certainly, affirmative reforms such as public financing; greater and more robust disclosure, more meaningful disclosure; and shoring up protections against circumvention. All of those will have to happen.
And you know, when you ask about defending against future challenges, I think that what we intend to do -- and what we need to do -- is take back our Constitution, to advance at every opportunity a vision for democracy under the First Amendment that doesn’t elevate the power of the wealthy 1 percent, and instead looks at the political process and how average voters, average citizens, can make their voices heard and …make their elected officials respond to their needs.