All indications are that the Supreme Court will soon declare yet another campaign finance reform measure unconstitutional, chipping away yet another piece of the Post-Watergate reforms that sought to limit the corrupting influence of money in politics. At least this is the indication based on the oral arguments in the recently argued McCutcheon v. Federal Election Commission case. The Roberts Court will do this by arguing that the First Amendment protects the right of individual donors to expend unlimited amounts of money to influence elections. The basis of the reasoning will be that aggregate spending limits by individuals does not corrupt or lend to the appearance of corruption of the political process.
In reaching this likely conclusion, the Court will once again come close to saying money is speech. But in doing that the Court will yet again be making a fatal assumption shared widely by many–that money is a legitimate tool to allocate political power and influence in America. The fundamental flaw with the way the Supreme Court and many others have approached the issue of the regulation of money in politics is a willingness to accept the assumption that economic resources should convert over into political influence. This is the core problem that the Supreme Court has failed to address.
Think about it. Economic markets may be great mechanisms to allocate sail boats and luxury items, but not political influence and democratic values. Money is great in its place, but there are limits to what money should buy. No one thinks that school admissions or grades, jobs, or justice in court should be allocated on the basis of ability to pay or by money. Nor do most of us support the idea that money should be used to allocate organ transplants or basic medical care. The size
Money has its place and it should just not be able to buy everything. There needs to be a wall of separation between money and many things we hold important. Ardent free marketers just do not seem to understand this. In their push to privatize and deregulate they somehow think free markets are omniscient and always just. But even Adam Smith recognized that for free markets to work there needed to be an independent concept of justice and virtue to regulate it. Economists also talk of market failure and recognize that left to themselves, free markets are not self-regulating, self-regulating, or always fair. In effect, there are some things money should just not buy, and that includes policy influence in a democracy.
Democracies are not about one dollar, one vote. Allocation of political power and influence should be distributed according to non-market criteria. Sociologist Daniel Bell once pointed out that market logic and concepts were increasingly coming to encroach or infringe upon other parts of American culture including, the political process. Others such as Michael Sandel have argued that the danger now is that the United States is turning from a market economy to a market society where increasingly all types of social intercourse are being reduced to a cash nexus. Robert Kuttner makes a similar point. To a large extent American political power is being subjected to a marketization of its operations.
The issue here is not one of efficacy or money. By that, the primary issue is not whether money makes a difference in terms of who is elected or who has political influence. One could debate forever whether money buys influence or corrupts and this is where the legal debate on campaign finance is centered. This is the wrong way to look at it. The issue should be whether money should be the criteria by which political power or influence is allocated. The issue instead is one about justice and fairness. It is about whether money is the appropriate criterion to use to determine who has political influence or authority. It is about setting boundaries or, as political theorist Michael Walzer would argue, demarcating distinctions between the market economy and the political system. While the field of political economy may be a legitimate academic discipline, the American political system is not a market democracy—the economic marketplace and the political forum or agora should be distinct. The allocative criterion for a political democracy is not the same as that for market capitalism.
Even though American democracy has grown along with capitalism, the two should not be conflated. Many of the founding American political values opposed the impact that economic inequalities could have. James Madison too, in Federalist 10 feared the problems associated with “various and unequal distribution of property.” Additionally, one can occasionally point to some dicta in Supreme Court decisions suggesting a broader understanding regarding a democratic theory of election law that would wall off impermissible uses of money in the political process.
For example, Justice Rehnquist in First National Bank of Boston v. Bellotti, recognized the illegitimate drive of corporations to want to convert their economic resources into political power. He declared: “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” And in Federal Election Commission v. National Right to Work Committee the Court stated that the purpose of limiting money in politics was “to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests’ which could be used to incur political debts from legislators who are aided by the contributions.”
What these comments from the Supreme Court suggest is a recognition that money used for political purposes needs to be limited. Politics in general, and campaigns and elections in particular, may be expensive and money may be necessary to run campaigns and elections, but their costs or funding sources should not undermine democratic values. The problem of the Court’s decisions on money in politics is that the Justices failed to understand how a democratic system derives its legitimacy from political equality. Allowing the allocative criteria of the economy to substitute for equality in the political arena gives money and wealth a role that it just should not have in American democracy.