Free Speech, Big Money, Bad Elections
David Cole
The New York Review of Books, November 5, 2015 Issue
http://www.nybooks.com/articles/2015/11/05/free-speech-big-money-bad-elections/
Madison’s Music: On Reading the First Amendment
by Burt Neuborne
New Press, 260 pp., $25.95
David H. Koch attending the opening of the plaza named for him at the
Metropolitan Museum of Art, New York City, September 2014
The first Republican presidential primary debate on August 6 will be
remembered for Donald Trump’s exchange with moderator Megyn Kelly about his
retrograde attitudes toward women, but the debate’s most significant moment
came in a different exchange altogether, between Trump and another
moderator, Bret Baier. Baier asked Trump about his reported donations to
liberal politicians, Hillary Clinton and Nancy Pelosi--donations that might
be seen as disqualifying to loyal Republican primary voters. Trump brushed
aside the question, explaining: "I give to everybody. When they call, I
give. And do you know what? When I need something from them two years later,
three years later, I call them, they are there for me." The truth of this
comment was so evident that no one on the stage even took Trump to task for
supporting the enemy. That’s just how the game is played. Rich people give
money to candidates so that they can demand favors from them two or three
years later. Next question, please.
In the midst of a presidential campaign, our democracy is in shambles. That
Donald Trump, after loaning his own campaign $1.8 million in the second
quarter of 2015 alone, has risen so far in the polls is itself a telling
commentary on the electoral process. The conservative billionaire Koch
brothers have committed to spending more money in the presidential campaign
than either the Republican or Democratic Party spent in the last one. By
August 1, Hillary Clinton had already amassed a campaign fund of nearly $70
million, and Jeb Bush had over $120 million.
As Burt Neuborne, a professor at NYU Law School, puts it in his important
and timely book on the First Amendment, Madison’s Music, the super-rich, the
wealthiest one to two percent, "set the national political agenda, select
the candidates, bankroll the campaigns..., and enjoy privileged
post-election access to government officials." The rest of us are left to
"navigate among the choices made available" by the super-rich.
Only about 40 to 60 percent of citizens vote in any given presidential
election. The rest, who are disproportionately poor and members of
minorities, do not even participate. Some are impeded from voting by
unnecessarily stringent registration and voter identification requirements
as well as narrow time windows for voting, long lines, and other obstacles.
Many others have likely concluded that in view of the outsized influence of
the rich, their votes wouldn’t matter.
At the same time, increasingly sophisticated gerrymandering has ensured that
many elected offices are sinecures for one of the two major parties. In the
House of Representatives, only about forty seats, or less than 10 percent of
the chamber, are filled in genuinely contested general elections. The
results can be perverse. In North Carolina in 2012, the popular vote for
House members was 51 percent Democratic and 49 percent Republican. Yet North
Carolina’s delegation to the House consisted of nine Republicans and four
Democrats. North Carolina’s state legislature had packed Democratic voters
into four districts, ensuring that Republicans would win the other nine. As
a result of such manipulation, Neuborne writes, "not a single contestable
election takes place in a closely divided state." Democrats received more
than half of House votes in Arizona, Michigan, Pennsylvania, and Wisconsin
in 2012, and did not get a majority of House seats in any of them. In what
sense can such outcomes be called democratic?
According to Neuborne, the Supreme Court bears much of the blame for the
depressing state of our democratic process. He is particularly critical of
its decisions in Buckley v. Valeo, which allowed individuals to make
unlimited expenditures on campaigns, and Citizens United, which ruled that
corporate expenditures on political campaigns count as exercises in freedom
of speech under the First Amendment and likewise may not be limited. As he
sums it up:
In the dysfunctional democracy the justices have built, at least one half of
the electorate doesn’t vote, the Supreme Court gets to pick a president, the
extreme wings of each major party dominate the nominating process, minor
parties are rendered powerless, rich ideological outliers control the
political agenda, voting can be an ordeal, lobbyists treat elected officials
as wholly owned subsidiaries, and rivers of money flowing from secret
sources have turned our elections into silent auctions.
But are all these failures of democracy the fault of the Supreme Court? And
would an alternative reading of the First Amendment solve them? That is what
Neuborne argues in his sweeping indictment of the Court’s jurisprudence,
which combines a rich understanding of the constitutional complexities with
a gift for explaining clearly their consequences. If one wants to understand
what ails us in this all-too-dispiriting presidential campaign season, there
are few better places to start. And Neuborne’s effort to transform the First
Amendment from an obstacle to electoral reform into a mandate for such
reform is bold and masterful. But while his portrait of the ills of our
political system is trenchant and convincing, it will take a lot more than a
rereading of the First Amendment to cure what ails us. The problems are
deep-rooted, and the answers are not as self-evident as Neuborne sometimes
suggests.
The First Amendment protects a series of distinct rights:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
Neuborne’s central insight is that when read together, these rights describe
"the arc of a democratic idea--from conception to codification." The
amendment opens by protecting the realm of conscience, where normative ideas
develop and are fostered. It then protects, in order, the right of speakers
to communicate those ideas to others, the right of a free press to
distribute the ideas on a mass scale, the right to collective political
action through assembly, and finally, the right to submit one’s political
demands to the government by means of a petition. In Neuborne’s view, the
Court has too often focused exclusively on the right of free speech without
adequate consideration of how its rulings affect the workings of democracy
overall, a central concern of the amendment as a whole. As a result, he
charges, its decisions have often undermined democracy in the name of
protecting speech.
Exhibit A in this critique, as in many contemporary criticisms of the Court’s
First Amendment rulings, is Citizens United. But Neuborne identifies many
other errors as well. The Court’s Buckley v. Valeo decision in 1974 upheld
limits on direct contributions to candidates while striking down limits on
how much individuals or candidates themselves can spend on campaigns.
Neuborne notes that this created "a campaign finance system that no rational
person would have chosen and that not a single member of Congress had
supported."
Neuborne is also critical of Supreme Court decisions barring "blanket
primaries," in which individuals can vote across party lines. The Court was
also wrong, he asserts, to strike down an Arizona public funding system that
tied a candidate’s public funding to the amount his opponent had raised. And
in his view, the Court has wrongly declined to invalidate partisan
gerrymanders.
The Court should not have struck down a part of the Voting Rights Act that
required states with histories of discrimination to "pre-clear" changes in
election rules with the Justice Department. And the Court erred in
nullifying efforts to draw district lines to increase minority
representation, and in upholding voter identification and pre-election
registration requirements. Together, he maintains, these decisions have
created a system in which there are too few genuinely contested elections,
while rich individuals and corporations exercise disproportionate influence,
and poor people often do not participate at all.
These errors might have been avoided, Neuborne argues, had the Court
recognized that the First Amendment’s aim is not merely to protect speech,
or religion, or assembly--but to facilitate democracy. The Court should ask
in each case whether a law is "good or bad for democracy," and should
recognize in the First Amendment an implied "right to vote, run for office,
and receive fair legislative representation."
It is not clear, however, that acknowledging the First Amendment’s
connection to democracy would resolve all the problems Neuborne identifies.
The Court has long understood the link between speech and self-government.
Justice Louis Brandeis famously did so in an oft-quoted concurring opinion
in Whitney v. California in 1927, writing that the First Amendment’s framers
believed that freedom to think as you will and to speak as you think are
means indispensable to the discovery and spread of political truth; that,
without free speech and assembly, discussion would be futile; that, with
them, discussion affords ordinarily adequate protection against the
dissemination of noxious doctrine; that the greatest menace to freedom is an
inert people; that public discussion is a political duty, and that this
should be a fundamental principle of the American government.
That the First Amendment was designed to promote democracy, however, does
not dictate what rules best further that end, or how to balance the
difficult dilemmas presented by electoral regulation. Neuborne, for example,
criticizes the Court’s conclusion in Buckley v. Valeo that limits on a
candidate’s campaign spending should be viewed as limits on the candidate’s
speech. Spending, he argues, is conduct, not speech, and should be more
easily regulated. But it costs money to speak, and because campaign finance
rules by definition limit only expenditures expressing a political message,
they deserve particularly careful judicial scrutiny. A limit on how much one
could spend advocating about climate change would warrant close scrutiny as
in effect a content-based limit on speech; so, too, should a limit on
campaign expenditures.
Moreover, a legislature that was free to impose unreasonable limits on
campaign spending could lock in the advantage of its own incumbents. As
Neuborne acknowledges, "no savvy incumbent politician designs a district he
can lose." Similarly, savvy incumbents can be counted on to regulate
spending in ways that favor their re-election. Indeed, Neuborne himself
criticizes the campaign finance law under review in Buckley for seeking "to
purge almost all money from elections, a ‘reform’ that just happened to
coincide with the best interests of powerful incumbents."
Thus, careful scrutiny of limits on campaign spending is essential.
Directing the Court to ask what is "good or bad for democracy," moreover,
does not answer the question, since reasonable people can and do differ
about what rules work best for democracy. Reasonable people also differ
about the competing risks of, on the one hand, protecting incumbents by
limiting campaign spending and, on the other, giving disproportionate
advantages to wealthy candidates and unfair influence to big spenders.
Nor does attention to the value of democracy dictate different results in
the other cases Neuborne criticizes. "Blanket primary" rules allowing all
voters to take part in selecting a party’s candidate, regardless of their
affiliation, may well increase the numbers of people voting, but they also
interfere with the rights of political parties to choose their own
candidates, a right that would seem to be encompassed in the First Amendment’s
right of free association and certainly favors democracy. And if the public
funding of a candidate’s opponent is tied to the amount that the candidate
raises, is it wrong to view that scheme as penalizing the candidate for
raising money? If there are ways to provide public funding that do not
penalize an opponent’s own fund-raising efforts, and there are, shouldn’t
states be required to adopt those methods instead? Neuborne himself suggests
two methods for public financing of elections that would pass constitutional
muster: giving everyone a $250 tax credit for campaign spending, or creating
generous public matching grants tied to small contributions, as New York
City offers.
Emphasizing the First Amendment’s democratic purpose also does not require a
different result in disputes over gerrymandering. The Court has been
understandably reluctant to wade into controversies over political
gerrymandering, both because such cases risk politicizing the Court, and
because the choice to allow legislatures to draw districts means that the
lines they choose will inevitably be partisan at least in some measure.
Identifying when a redistricting map is "too partisan" is no simple matter.
The First Amendment does not offer much assistance in identifying
impermissibly gerrymandered districts, even as Neuborne reads it.
Nor does that amendment really help the Court decide when districts drawn to
maximize a racial minority’s representation should be tolerated under the
equal protection clause. A district that ostensibly favors black
representation, by concentrating a majority of black voters in one district,
may undermine black representation overall by freeing up the rest of the
state’s representatives to disregard African-Americans’ interests. Here,
too, there are reasonable competing views about what is best for democracy,
and the First Amendment does not provide a ready answer.
Neuborne is surely right that the current system is broken. His cogent
criticisms of the status quo demand our consideration. But the answer does
not lie solely in the retrofitting of First Amendment doctrine, and the
solution does not lie exclusively with the Supreme Court. The core of the
campaign finance problem, for example, as Neuborne correctly notes, is that
"we have decided to treat the necessary costs of operating a complex
democracy as an off-the-books expense to be borne by rich volunteers."
If public funding of campaigns were adequate, many of the wealth problems
would go away. But Neuborne does not suggest that the First Amendment
demands public funding, or that the Court could or should read it to impose
such an obligation. Rather, we the people must choose to make it so. A big
part of the solution lies in our hands. What is most needed is a political
response: an organized demand from the people for a robust system of public
financing.
First Amendment doctrine is undoubtedly part of the problem, and a Court
that took more seriously the impact of various rules on our democracy would
almost certainly be more open to reasonable limits on campaign spending. The
most fruitful avenue for constitutional law reform on campaign finance,
however, does not lie as Neuborne implies in rejecting the rulings that
limits on campaign spending implicate speech rights, or that corporations
have such rights.
Rather, the solution is to be found in a more expansive conception of the
permissible justifications for state and federal regulation of such
spending. The current Court’s view is that the only justifiable basis for
regulating campaign spending is to prevent "quid pro quo" corruption or its
appearance--namely, bribery. But Justice John Paul Stevens, Zephyr Teachout,
and Lawrence Lessig, among others, have convincingly argued that this is a
far too limited conception of "corruption." [1] Corruption of the democratic
process also occurs when, even without bribes, spending practices lead
elected representatives to serve not "the people" but their biggest donors.
Deeming that sort of corruption a legitimate target of campaign spending
laws would afford legislatures more leeway to regulate in the name of a fair
and equitable political process. A legislature could, for example, impose
reasonable caps on campaign expenditures by individuals and businesses
alike. Judicial review of such rules will always be necessary in view of the
inherent risk that limits on spending will protect incumbents, but the Court’s
current crabbed definition of corruption has imposed a too-confining
straitjacket, ruling out any expenditure limits at all.
Still, the real impetus for electoral reform, at both the constitutional and
statutory levels, must come from the people. Lessig, a professor at Harvard
Law School, has sought to inspire a movement for campaign finance reform,
and has now entered the presidential race as a means of spreading the word.
Teachout, a professor at Fordham Law School, ran for governor in New York on
a similar platform, and did surprisingly well against Andrew Cuomo. Hillary
Clinton, herself a beneficiary of the wealthy, has nonetheless called for
sensible reforms. A number of civil society organizations, including Common
Cause, the Brennan Center for Justice (of which Neuborne is the founding
legal director), the Campaign for Accountability, 99Rise, Public Citizen,
and Demos, to name just a few, have taken on the issue of campaign finance
reform. A CBS/New York Times poll in May 2015 found that more than 80
percent of respondents think the role of money in political campaigns is
excessive, and that the campaign finance system needs either "fundamental
changes" or to be "completely rebuilt." [2]
Nearly everyone recognizes that there is a problem. The challenge is to
mobilize that sentiment effectively for the long struggle needed to bring
about sensible campaign reform. It should not require a constitutional
amendment; there are important changes that can be put in place short of
that. As a start, President Obama could require government contractors to
disclose their campaign expenditures. More robust public financing can be
established by the states or Congress. And the Supreme Court should be urged
to acknowledge that countering the outsized influence of the wealthy is a
justification for reasonable limits on campaign spending. [3]
While it does not provide all the answers, Neuborne’s elegant book helps
identify one source of the problem, and provides an important guide,
grounded in the First Amendment itself, for those working toward an
electoral system more deserving of the label of democracy.
Notes
1. See Justice Stevens’s dissent in Citizens United v. FEC; Zephyr Teachout,
Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United
(Harvard University Press, 2014); and Lawrence Lessig, Republic, Lost: The
Corruption of Equality and the Steps to End It (Twelve, 2015). See also my
review of Teachout’s book in these pages, September 25, 2014.
2. "Americans’ Views of Money in Politics," The New York Times, June 2,
2015.
3. For an excellent discussion of some existing reform proposals, see
Elizabeth Drew, "How Money Runs Our Politics," The New York Review, June 4,
2015.
