Amend the Constitution to restore the democracy the Roberts court killed

Money is not speech. Corporations are not persons. Most of us intuitively understand that. The Supreme Court clearly does not. In Citizens United v. FEC, it ruled that corporations have a First Amendment right to expend unlimited amounts of money to influence elections. More recently, in McCutcheon v. FEC they struck down the overall caps on how much money wealthy individuals can contribute directly to campaigns and to party committees. The Supreme Court’s decisions are wrong and they deserve to be overruled with a constitutional amendment to restore the First Amendment to its rightful place protecting American democracy, instead of as a tool to suppress speech rather than enhance it.           

Some will object that we should not amend the First Amendment, that it is fine the way it is. However, the Supreme Court's recent decisions have twisted the meaning of that Amendment from supporting democracy to privileging it for the few.  The Supreme Court has been wrong in the past and they have been corrected with constitutional amendments and laws. This is called checks and balances.

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A century ago reformers such as Teddy Roosevelt rued the rise of wealthy corporations and individuals corrupting American politics. Supreme Court Justice Louis Brandeis stated:  "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both."  Thus was launched a battle against the undue influence of wealthy special interests that included anti-trust laws, bans on corporate political activities, progressive taxation, and campaign finance reform legislation. The Richard Nixon Watergate abuses produced more reforms, including public financing of elections, disclosure laws, and political contribution and expenditure limits.           

But beginning with the 1976 Supreme Court decision Buckley v. Valeo, wealth fought back.  The Court ruled that limits on how much money candidates, groups, and wealthy persons could spend were unconstitutional.  The Supreme Court under Chief Justice Roberts continued to hack away at efforts such as McCain-Feingold to limit the power of money in politics. Citizens United and McCutcheon are only the most recent examples of how the Court is letting money and privilege entrench itself, preventing the political system from functioning. The gridlock in Congress and rising inequalities across America are the result.           

The First Amendment under the Roberts Court has become a tool to suppress speech rather than enhance it.  The First Amendment free speech clause is not meant to be a right for one or the few but for all. It is recognition that in a society all of us have a right to speak, and to do that, as in any social situation, there are rules of communication that make a conversation possible. There is no way that a rule that says all of us have an unlimited right to shout is viable; at some point, one has to understand that the First Amendment rights of some have to be read or understood in light of the rights of others. The right to free speech cannot be interpreted in such a way that the rights of a few can suppress the free speech rights of others. As philosopher John Rawls once declared:  “[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Rights to free speech must be read within a social context of like liberty for all.  Citizens United, McCutcheon, and its defenders fail to recognize this principle.           

Money should not be a factor determining who holds political power, what bills are passed, and how elections are run. The issue is not only whether money buys influence or corrupts. It should be whether money should at all be the criteria by which political power or influence is allocated, and whether the First Amendment should shield such privilege.           

Justice Rehnquist, dissenting 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 quoted the federal government’s brief in that case 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 by it at one time 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 with Citizens United and McCutcheon is that five Justices radically departed from past precedent and failed to understand how a democratic system derives its legitimacy from political equality. Money and wealth should not rule in American democracy; it should be real people, all the people. Previous Supreme Courts understood this, but not the Roberts Court.  This is why we need a constitutional amendment — to restore democracy to America.
                        


David Schultz is a Hamline University professor of political science and University of Minnesota professor of law in St. Paul, Minnesota where he teaches election law.  His is the author of Election Law and Democratic Theory (Ashgate 2014).