The Supreme Court Cases that Destroyed Democracy

There are four key Supreme Court decisions which decimated our ability to regulate elections and control the flow of money. They were Buckley v. Valeo in 1976, Citizens United v. FEC in 2010, Speech Now v. FEC in 2010 and McCutcheon v. FEC in 2014.

The first case, and the probably the most important, was the decision in Buckley v. Valeo in 1976 which set the precedent for all to follow. Buckley v. Valeo was brought up in response to the Federal Election Campaign Act of 1971 (FECA) and subsequent 1974 amendments which sought to increase the disclosures of contributions, place legal limits on campaign contributions, limit campaign expenditures, require campaigns to report the names, addresses and occupations of donors of more than $200 and provide for the public financing of presidential elections.  FECA also created the Federal Election Commission to oversee and enforce provisions of the law. FECA was an excellent step to control political spending. Buckley v. Valeo was the first notable linking of first amendment rights with political financing which equated money and political financing with free speech. The Buckley decision struck down and upheld various provisions of FECA, but the critical part of Buckley was the differentiation in terms of how the court interpreted the treatment of expenditures vs. contributions. That bifurcated how those items were treated under constitutional law. The court ruled that in terms of expenditures you cannot put limits (first amendment rights), but on contributions you can.  

Following Buckley was the more famous 2010 ‘Citizens United v. FEC’ which ruled that the government cannot restrict independent political expenditures of for-profit corporations, non-profit corporations or labor unions associations. While corporations and labor unions are still forbidden from contributing directly to campaigns or parties, ‘Citizens United’ reversed  a century of law and ruled that corporations could engage in independent political expenditures. The following ‘SpeechNow v. FEC ruling’ months later overturned rules limiting the amount corporations could spend. After 2010, corporations were able to contribute unlimited amounts of money to Super PACs that engaged in purely independent political expenditures.

In 2014, McCutcheon v. FEC was the last significant development in the destruction of our ability to regulate the corrupting influence of money into our political system. In McCutheon, the Supreme Court ruled that the aggregate contribution limit which previously limited individual contributors to an aggregate total of $117,000 was unconstitutional. The court upheld the per candidate contribution limits, but donors could now give to as many candidates and organizations as they pleased. It was this ruling that allowed the Koch brothers to commit to spending $900 million in a single election year.

What the Supreme Court Got Wrong

In 2010, the Supreme Court rulings reversed 100 years of law by reversing the restrictions on corporate spending and independent expenditures in elections. The court ruled that corporations should be allowed to engage in unlimited amounts of election spending so long as that there is no coordination with a campaign or a party. The majority opinion of the Supreme Court found that since corporations were disallowed from coordinating with campaigns or parties there wasn’t a chance for ‘quid pro quo’ corruption and that corporate independent expenditures were protected as free speech under the first amendment.

Since these large independent campaign expenses are unlimited, they have become an even bigger factor in powerful corporations and the wealthiest Americans gaining preferential access to elected officials. Additionally, these powerful groups gained unprecedented leverage over Representatives and Senators with the mere threat of the negative advertising power of Super PACs.

Besides the potential for outright corruption, the Supreme Court had completely ignored the concept of “the appearance of corruption”. When polled, the public overwhelmingly views corporate political expenditures as a method to gain unfair legislative access. This appearance of corruption in our electoral system is what led to Donald Trump’s ascension and why slogans such as “drain the swamp” were so effective. The mere appearance of corruption is toxic for any democracy.  

The Supreme Court also completely failed to recognize the inherent dangerous of having corporations involved in the political process. Contrary to Mitt Romney’s “Corporations are people my friend” comment in the 2012 election, corporations are not people. A corporation is an artificial legal entity that, unlike “people”, has perpetual life, limited liability and no ability to vote. Additionally, corporations are able to amass gigantic sums of money that a regular individual cannot. Corporations have no morality, no loyalty to United Sates and outside the duty to make a profit have no other purpose. Managers of these corporations have a fiduciary duty to maximize shareholder value. Therefore, if corporations are legally allowed engage in political spending then those corporate managers have a fiduciary duty to corrupt the government to favor their industry.

In order to justify the potential for unlimited political spending by corporations, the Supreme Court majority opinion argued that there is no such thing as “too much free speech.” However, since few private individuals can match the vast sums of money that corporations can amass, corporations have an unfair influence on the electoral process. Corporations now have the ability to outspend all others, to push other voices out of prime broadcasting spots and to dominate the “marketplace of ideas.” The unlimited spending by corporations thus marginalizes other less than well-funded groups or individuals.

The Supreme Court has taken a hacksaw to our ability to regulate campaign financing. The court has said the only constitutional grounds to go and discuss campaign limits are the grounds of corruption and the appearance of corruption, but the way they narrowly define corruption is that if you don’t have ‘quid pro quo’ then you don’t have corruption. The court has ignored the corrupting influence of money. There is a difference between individual corruption, where a politician takes cash bribes for their own enrichment and corruption of the process where wealthy people and industries are buying public policy. There is less individual corruption in congress than there ever had been, but the overall process is more corrupt than it has been maybe ever.

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