Overrule the Supreme Court on campaign finance reform

'Separation of campaign and state' misunderstands the Constitution and harms the country

it's time for a constitutional amendment

July 05, 2011|By Christopher J. Peters

Democracy has been called a government of laws, not of men; but who makes the laws that govern democracy? Not you, me, or our fellow citizens — at least, not according to the five-justice conservative majority on the Supreme Court, who continue to chip away at our authority to govern ourselves. We must reclaim that authority soon or risk losing it forever.

On June 27, the five conservative justices struck down an attempt by the state of Arizona to preserve fair and meaningful participation in its elections. Arizona's citizens recognized that the need to raise huge quantities of private money distorts political campaigns and thus distorts government. So in 1998, they passed an initiative that provided public funding for candidates in state elections and increased that funding in increments to match spending by a candidate's privately financed opponent. But in Arizona Free Enterprise v. Bennett, the five-justice majority held that this matching provision violates the First Amendment.

The Bennett decision extended the court's unfortunate 2010 Citizens United v. FEC ruling, which invalidated longstanding limits on campaign spending by corporations and unions. These and other recent cases suggest that the court's conservative majority is inching toward a vision of "separation of campaign and state" — an anything-goes model of elections in which the people lack the authority to regulate the terms of their own democracy. But this vision reflects faulty logic, bad constitutional interpretation and disastrous democratic theory.

"Separation of campaign and state" is faulty logic because it assumes that the only remedy for abusive campaign regulation is no regulation at all. The worry professed by the court's conservatives — that campaign laws will be used to protect incumbents — is a legitimate one; but it applies equally to election regulations the Constitution clearly permits, such as laws determining the time, place and manner of elections. (Tellingly, in these contexts the current court has been far less solicitous of the need to prevent incumbent self-dealing.) The danger of self-dealing by incumbents is a reason for consistent, careful judicial scrutiny of campaign regulations — not for denying the authority to regulate campaigns altogether.

"Separation of campaign and state" is bad constitutional interpretation because the Constitution clearly contemplates the democratic regulation of political campaigns. There are the time, place, and manner regulations mentioned above, which are expressly permitted by Articles I and II, and the age, citizenship, and residency requirements for congressional and presidential candidates set by those same Articles. There is the 22nd Amendment, which forbids the election of the same person as president more than twice. There are the prohibitions of "religious test[s]" as requirements for public office (Article VI) and of election discrimination based on race (the 15th Amendment), sex (the 19th), failure to pay a poll tax (the 24th), and age of persons 18 or older (the 26th). The large majority of the Constitution, in fact, is devoted to setting fair ground rules of political participation in the American republic, which is precisely what well-crafted campaign spending laws attempt to do.

Which leads to the point about democratic theory. These provisions are part of the Constitution because reasonable election regulation is necessary for democracy to function — indeed, to exist. Democratic government is the sum of its procedures and institutions, and those procedures and institutions are the creatures of law. We cannot have elections without a set of laws with which to administer them, and we cannot have meaningfully fair and participatory elections unless those laws promote fairness and participation. In a democracy, the people themselves bear the ultimate responsibility for their laws, and this must be equally true of the laws that regulate how democracy works. To deny democratic government the authority to impose reasonable regulations on political campaigns is to deny the people the capacity to shape the government under which they live — hardly a democratic outcome.

The Supreme Court ought to be developing thoughtful constitutional principles to guide campaign regulation — principles that balance the various interests at stake, promote fair and meaningful participation, and filter out cynical attempts at incumbent self-dealing. Instead, the court's conservative majority is mandating a misguided (and inconsistent) laissez-faire policy toward democratic elections. The result is likely to be a concentration of power in the hands of those who can afford it. That is anarchy or, worse, oligarchy; but it is not the democracy to which Americans are entitled.

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