The Supreme
Court decision McCutcheon v F.E.C.
striking down aggregate contribution limits is flawed for many reasons. Critics will complain that the Court adopted
a crabbed and narrow definition of corruption, or that it seemed inured to the
role of money in politics, or that it is one more extension in giving more
rights to the wealth and in sanctifying one dollar, one vote as the defining
philosophy of the Roberts’ Court view of American democracy. All these criticisms have merit. But the deeper flaws lie in something more
fundamental–the decision is the triumph of legal metaphysics, devoid of a real
theory or understanding regarding how American democracy should and do operate
in the real world.
As I argue in my new book Election
Law and Democracy Theory, the most curious feature about election law
scholarship and adjudication, including that by the Supreme Court, is the
degree to which it is theoretically rudderless.
What is meant by rudderless?
Simply put, it is the extent to which the critical debates and issues
that are at the center of many election law disputes are often addressed in the
most minimal of matter, generally without regard to any broader sense of a
political theory which should guide decisions.
In reaching decisions addressing political speech versus promoting the
integrity of elections in the area of campaign financing, or ballot access
versus electoral integrity, voting rights versus fraud prevention, or any other
innumerable issues, election law scholars and judges seem to assume that the
matters at stake are devoid from a broader political or democratic theory
context. This is what occurred in McCutcheon.
On one level the Supreme Court yet
again issued a decision in which it examined one issue about American politics
and elections–the role of money or the right of individuals to make political
contributions–without adequately considering the broader impact of that
decision on the actual performance of American democracy. The Court treats in isolation one aspect of
our political democracy–the right of an individual to spend money–without
considering other competing values and how they come together to form a more
complete theory about government, politics, and elections. Yes individuals may have a right to expend
for political purposes, and such an act may further an important value of free
speech, but that is not the only act and value that must be furthered or
considered in a democracy.
Democratic theorists such as Robert
Dahl point out that a theory of democracy includes several values, such as
voting equality, effective participation, enlightened understanding, control of
the agenda, and inclusion. For each of
these values there is a need to construct institutions that help sustain them or give them meaning. Effective participation includes
institutions that create for example free and fair elections, opportunities for
non-electoral participation, and competitive parties. However, none of these
values operates in isolation; a real concept of democracy requires that one
understand how they interact, coming together to form a fuller theory of
American Democracy.
Democratic theories have
ontologies. Each theory defines its object of inquiry, the critical
components of what makes a political system work, and what forces, structures,
and assumptions are core to its conception of governance. This ontology will not only include a
discussion of human nature but also examination of concepts such as
representation, consent, political parties, liberty, equality, and a host of
other ideas and institutions that define what a democracy is and how it is
supposed to operate. The Supreme Court,
along with most election lawyers, have no sense of theory. In McCutcheon, the Supreme Court isolated
one value or practice–expending money–in isolation from many others, asserted
that such a practice was protected by the First Amendment, and either called it
a day or mistook such a claim as a theory. This is hardly the case. At best it is the most minimal concept of a
democracy, at worst it is no theory.
Among many election lawyers they have made the same mistake, confusing
advocacy of a single claim with a broader theory of democracy. Or in the contrary their view of democracy is
reductionist–it is about saying that the allocation of political power and
influence is not different than the selling of cars or toothpaste. Markets may be great ways to allocate
commodities, but they are not appropriate tools to sell or distribute political
power or democratic influence. For those
who think it is, they are confusing politics with economics, elections with
markets.
Thus on one level the Supreme Court
in McCutcheon had no theory and it
was all empirical–some individuals denied the right to max out their political
contributions on as many candidates and organizations as they want. But in another sense the decision was all
theory and not empirical. The Supreme
Court had its own metaphysics about how it thought people acted. The majority
opinion waltzed out a series of hypothetical ways money could be diverted in
elections was conjecture at best, devoid of real empirical evidence. Moreover, the majority opinion, along with
many of the defenders of it, make many assertions that simply lack empirical foundation.
Is it real true that the decision means groups and individuals will be
more likely to shift giving to candidates and away from third party groups? Are political parties strengthened by taking
more special interest money? We have no
real evidence to support these claims.
For the most part, the assumptions
made by the Court and many election lawyers are devoid of empirical political
science analysis. They are highly
rationalistic models about human behavior, akin to the theoretical models economists and other social scientists
often make about worlds and behavior they do not exist in reality. Decisions such as McCutcheon are what many of us call formalistic. They ignore the wisdom of Supreme Court
Justice Oliver Wendell Holmes, Jr. Who
once declared: “The life of the law has not been logic; it has been
experience.” It should be experience,
evidence and data, and not blind assertions or theories, that guide decisions
about the role of money in politics.
Overall, the real failure of McCutcheon is that it is both too
theoretical and not sufficiently theoretical, and too empirical and not
empirical enough. It ignores how an
American democracy should operate, and how its institutions do actually work
both within a comprehensive theory and in the real world.
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