Money in Politics: Free Speech or Unequal Access?

I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country. – Thomas Jefferson

As a citizen of the United States, there is no right more sacrosanct than the right to vote and participate equally in the political process. We live in a constitutional democracy, which guarantees the principle of one person, one vote. I may not have money or fame, but I do have a vote, and my vote counts exactly the same as the vote cast by a billionaire or a Hollywood star.  

And yet, it is an accepted fact of American life that, in politics as in business, money reigns supreme. Money is needed to finance political campaigns; to pay for television and radio ads, brochures and campaign literature, and full-time staff. According to the Center for Responsive Politics, the average cost in 2012 of winning a seat in the House was $1.6 million; in the Senate, nearly $12 million. In American politics, some voters are more equal than others. Those with money to help finance campaigns are more highly valued by candidates for public office than those without money. Although rarely spoken in polite company, the thought of virtually every political candidate is: “I want your vote, but what I really need is your money.”

It is admittedly an imperfect system. Politics is messy, and dirty, and historically blemished by stories of tainted cash in burlap sacks and backroom deals. It is because of the pervasive influence of money that the American political system requires public scrutiny and transparency. It is why, in 1907, Teddy Roosevelt called for public financing of political elections and a ban on corporate money in politics. And it is why, for the past forty years, in the aftermath of Watergate, the public has sought and Congress has imposed limits on the amount of money an individual may lawfully contribute to a candidate or party committee.

Campaign finance laws are intended to uphold the principle of political equality, which is fundamental to a fair and open democracy. While people are free to contribute to candidates of their choice, election laws restrict how much money any one person can give. Thus, federal law caps the amount an individual may give directly to a political candidate ($5,200 per two-year election cycle) or to a series of candidates and political party committees combined ($123,200). The purpose of the law is to prevent any one person from having undue influence on the official duties of our elected leaders.

Apparently, the five conservative justices on the United States Supreme Court see it differently. Earlier this month, in McCutcheon v. Federal Election Commission, the Supreme Court in a 5-4 decision overturned 40 years of law and precedent, ruling that the ($123,200) limits on the aggregate amount an individual can give to a series of political candidates or party committees is unconstitutional. Writing for the majority, Chief Justice John Roberts declared that a campaign donation is the equivalent of political speech protected by the First Amendment; and that the will of the people as reflected in campaign finance laws and other collective concepts of the public good are outweighed by an individual’s right to engage in this financial form of political “speech.” Since money is the equivalent of speech, according to Roberts, contributing money to a political campaign is no different than writing an op-ed on behalf of your favorite candidate or putting up a lawn sign.

Moreover, said the Court, the only interest the government has in restricting such financial “speech” is in preventing quid pro quo corruption. And, according to Roberts, “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials of political parties.” Really?

It seems that, to Roberts at least, so long as the robber barons are not showing up in the halls of Congress with briefcases full of money and explicitly demanding that Senators and House members vote a certain way on pending legislation, there is by definition no corruption, or even the appearance of corruption, in the political sphere. It is a disingenuously narrow and naïve view of corruption. Bribery laws, which already prohibit the quid pro quo corruption to which Roberts refers, address only the most blatant attempts to influence political action. But as Congress and many state legislatures have recognized for decades, the public’s concern with political corruption is far more comprehensive and realistic than the Court’s restrictive parameters.

As Justice Stephen Breyer noted in a compelling and well-articulated dissent, the Roberts opinion “misconstrues the nature of the competing constitutional interests at stake” and “understates the importance of protecting the political integrity of our governmental institutions.” Along with the 2010 decision in Citizens United – which held that corporations and unions may contribute unlimited amounts to political campaigns (Hey, it’s only fair. Corporations are people too. They have rights!) – the Roberts Court has eviscerated decades of campaign finance law and efforts to instill integrity into the political process. As noted by Justice Breyer, these decisions have left us with a system “incapable of dealing with the grave problems of democratic legitimacy that [campaign finance] laws were intended to resolve.”

The history of campaign finance reform in this country has been an uphill effort to maintain the integrity of the political process. Clean government, public transparency, preventing undue influence by wealthy corporations and billionaires lies at the heart of the First Amendment itself. The First Amendment protects not only the right of the individual to engage in political speech – to advocate a cause, write an editorial, protest a perceived injustice, petition the government for a redress of grievances – but also the public’s right to preserve the democratic order. “Where enough money calls the tune,” wrote Justice Breyer, “the general public will not be heard.” And when a few large donations are allowed to drown out the voices of the many – when “elected officials are influenced to act contrary to their obligations of office by the prospect of . . . infusions of money into their campaigns” – the political process is subverted.

Too much money in politics creates cynicism, and a cynical public soon loses interest in political participation. Unlimited money corrupts democracy, allowing a small group of political plutocrats to influence who runs for office, who gets elected, and what laws are passed. But according to Chief Justice Roberts, political money is no different than speech. To Roberts, everyone has the same right to contribute as everyone else. That the rich can exercise this right and the poor cannot, is simply the way of the world.

The problem with equating money with speech is that, unlike casting a vote and advocating a cause, activities for which everyone has an equal opportunity to participate, those with money have unequal and privileged access to the halls of power. Everyone has an equal vote to bargain with in the political arena. Only the very wealthy have the financial bargaining power to influence political results. It is an unequal playing field. If unlimited money does not directly corrupt the process, it nevertheless distorts it.

In McConnell v. FEC, a case decided in 2003 whose continued validity is now in doubt after McCutcheon and Citizens United, the Rehnquist Court (not exactly a  bastion of liberalism) upheld the Bipartisan Campaign Reform Act of 2002 (also known as the “McCain-Feingold law”), which set limits on “soft money” contributions to political parties. Based on an extensive record developed in the trial court, the Supreme Court in McConnell found that the soft money limits were designed to prevent the pernicious influence of money in politics and the privileged access to elected officials that such money provides. The record in that case showed that the enormous soft money contributions at stake, which ranged from $1 million to $5 million among the largest donors, while not resulting in quid pro quo corruption, allowed wealthy contributors disproportionate access to lawmakers and, thus, the ability to influence legislation.

The record developed in McConnell showed an indisputable link between generous political donations and direct access to members of Congress. As former Senator Paul Simon (D – IL) testified: “Because few people can afford to give over $20,000 or $25,000 to a party committee, those people who can will receive substantially better access to elected federal leaders than people who can only afford smaller contributions or cannot afford to make any contributions. When you increase the amount that people are allowed to give, or let people give without limit to the parties, you increase the danger of unfair access.” Similarly, Senator John McCain (R-AZ) noted: “At a minimum, large soft money donations purchase an opportunity for the donors to make their case to elected officials . . . in a way average citizens cannot.”

Americans tolerate a large degree of inequality in the economic sphere because we believe it enhances productivity, entrepreneurial ingenuity, and investment. In theory at least, our economic system rewards those who work harder and produce more things of value, and gives everyone an equal opportunity to succeed. This often is untrue in practice, of course, as luck and inheritance and disproportionate opportunities for some skew the system. But while Americans tolerate a great deal of economic inequality, in the political sphere a more level playing field is expected.

The wealthy do not generally give to candidates out of an altruistic desire to participate in the political process. They do so because they expect a return on their investment. It is a problem that infects both major political parties. As shown by a landmark study conducted in 2012 by Princeton University political scientist Martin Gilens (Affluence and Influence (Princeton University Press, 2014)), government responsiveness strongly favors the most affluent, while average Americans have almost no influence on policy.

But none of this apparently matters to Chief Justice Roberts. So long as no outright bribery can be proven, wealthy contributors are permitted to participate disproportionately in the political process, not only with their voices and pens, but with their money. Money is speech, after all.

Perhaps the Chief Justice and his four conservative brethren on the Supreme Court should listen to one of their fellow Republicans who served with distinction for many years in the United States Senate. As former Senator Alan Simpson (R-WY) testified during the McConnell case, “Who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about – and quite possibly votes on – an issue? . . . When you don’t pay the piper that finances your campaigns, you will never get any more money from that piper. Since money is the mother’s milk of politics, you never want to be in that situation.”

When Chief Justice Roberts was named to the Supreme Court in 2005, he promised to uphold the principles of judicial restraint and respect for the democratic process. But the campaign finance rulings of the Roberts Court are examples of judicial activism at its worst. McCutcheon and Citizens United have determinedly obliterated past judicial rulings and decades of campaign finance laws passed by bipartisan coalitions of Congress under Republican and Democratic administrations. Unlike Roberts and his conservative brethren on the Court, these politicians understand precisely how money in politics actually works, and just how unfair and inherently corrupt is a political system that equates unlimited money with mere speech. 

"Money talks and bullshit walks," declared former Pennsylvania Representative Michael Myers during the Abscam scandal in 1979 when he was videotaped accepting $50,000 from an undercover FBI agent. It is a sentiment now endorsed by the U.S. Supreme Court. Teddy Roosevelt is rolling in his grave.

In Praise of Public Service: Bill Clinton in Philadelphia

We all do better when we work together. Our differences do matter, but our common humanity matters more. – Bill Clinton

Former President Bill Clinton spoke at Temple University in Philadelphia last week in an event Andrea and I had the privilege of attending. He provided the keynote address at a benefit for the Temple Law Foundation, which helps repay the student loans of recent law graduates committed to careers in public service. He was, as always, an engaging speaker. Funny, warm and passionate, he is a master story teller and educator, an inspiring motivator and thoughtful commentator. In listening to his talk, and the question-and-answer session with Governor Ed Rendell afterwards, I was reminded of his intellectual depth and mental sharpness, of how easily he speaks with authority and historical perspective on almost any topic. Personal failings notwithstanding, he easily ranks among the best and brightest of 20th century presidents.

Looking trim and fit, if slightly older and greyer than when I met him briefly in 1998, President Clinton conversed freely and easily about a wide range of topics. He spoke about his days as a young law student at Yale, when he worked six jobs over a three-year span to pay his way through school; of his early years as a law professor at the University of Arkansas, where he taught everything from Admiralty and Federal Jurisdiction to Constitutional Law before seeking a career in politics. He joked about the day his law professor caught him in class reading a novel by Garcia Gabriel Marquez, which he insisted was far more interesting than the law of taxation. The former president had the crowd of several thousand in attendance at the Liacouras Center in the palm of his hands.

A pair of reading glasses resting on his nose, President Clinton discussed the importance of the rule of law to the economic and social progress of developing nations; and to equality of opportunity, inclusive government, and the advance of democracy. He praised individuals willing to dedicate their lives to public service and work for the common good. He explained that “public service” need not be limited to a life in government and emphasized the benefits of non-governmental organizations to finding solutions to the world’s problems. He noted the work of the Clinton Global Initiative in helping reduce the price of life-saving drugs in the world’s poorest countries, an effort that has saved millions of lives in Africa and Asia.

Clinton noted that we live in the most globally interdependent age in history, a fact fraught with opportunities and challenges. It is why a commitment to public service is so important. “Service liberates you,” he explained, “because you cannot serve without understanding the importance of our common humanity.” Individually and collectively, we must continue to “develop habits of mind and practice that bring us together rather than tear us apart.” It is a refreshing message in this era of ideological rigidity.

I had just begun my fifth year as an Assistant United States Attorney for the District of Columbia when Clinton was first elected President in 1992. Although the role of a federal prosecutor varies little from one presidential administration to the next, I was exalted and relieved when Clinton took the oath of office the following January. Twelve years earlier, the Reagan Revolution had swept into Washington on an anti-government, anti-public servant platform that defined the times and altered the nation’s course. Since arriving in Washington as a young law student in 1982, I heard almost every day that government was the problem, not the solution. Although I had never worked harder or with more passion than when I was a front-line prosecutor trying criminal cases in the District of Columbia, the Gospel according to Reagan taught that government service was not something of which to be proud, that as a government employee I was simply the source of the country’s economic and fiscal woes. That I worked long hours under intense pressure representing the people of the city and the United States, contending with defense attorneys, judges, and hostile witnesses while defending the actions of law enforcement officers and crime victims in an often futile effort to make the streets a little safer, was little appreciated by the anti-government crowd. 

For me, it was as if the sun rose the morning Clinton took office. “I challenge a new generation of young Americans to a season of service,” he said in his inaugural address on that bright January day. “There is so much to be done.” A pro-business Democrat, he understood that government could not solve all of the nation’s ills, but he recognized what Presidents Reagan and, to a lesser extent, Bush, did not – that the vast majority of public servants are committed to good government and good citizenship. I knew and worked with hundreds of truly dedicated people who took seriously their work and who felt a sense of duty and mission to their country – prosecutors and public defenders, social workers and researchers, scientists and engineers, doctors and health care workers, diplomats and security experts. Finally, we had a president who believed in what we did and recognized our efforts to make the world a better place.

Clinton was smart and energetic and wanted to instill the spirit of service that the nation’s leaders had abandoned and ridiculed for so long. The world truly seemed brighter when Clinton took over as President. “We must do what America does best,” he declared, “offer more opportunity to all and demand more responsibility from all.” As Maya Angelou elegantly stated during the inaugural poem:

Here on the pulse of this new day, you may have the grace to look up and out; and into your sister’s eyes; and into your brother’s face, your country; and say simply, very simply, with hope: Good morning.

Clinton understands instinctually the complex nature of government and politics. As president, he combined fiscal discipline with investments in education, health care, and technology. In his first year in office, he established the AmeriCorps program and signed into law the Family and Medical Leave Act. Over the objections of some in his own party, he opened foreign markets and expanded the avenues of global trade. Despite strong Republican opposition, he passed budgets that combined needed tax increases with appropriate cuts in government spending, achieving by the end of his presidency the largest budget surpluses and debt reduction in American history. And he did it all without sacrificing major advances in environmental protection, scientific research, job training, and military preparedness. Throughout his two terms, U.S. poverty levels fell, over 22.5 million jobs were created, home ownership reached its highest levels ever, and unemployment reached its lowest levels since the 1960’s.

Like all presidents before and since, President Clinton was far from perfect and made his share of mistakes. He miscalculated the entrenched culture of politics and partisanship that had enveloped the nation’s capital since the days of Watergate. And his personal failings in the Lewinsky mess will forever taint his legacy. But his presidency is rightly remembered as one of the most successful of the 20th century. It brought us eight years of peace and prosperity and created a stronger, more vibrant nation at the turn of the century.

We live in an increasingly cynical age, when everything presidents do is viewed through a political lens. Ex-presidents have the luxury of speaking more freely and candidly than when in office. But what impressed me about President Clinton in listening to him speak the other night was what has always impressed me about the man – his openness to ideas regardless of ideological origin; and his comprehensive understanding of the complex entanglements of history, politics, ideology, and practical reality. As he wrote in Back to Work: Why We Need Smart Government for a Strong Economy (Knopf, 2011), “our constitution was designed by people who were idealistic but not ideological. There’s a big difference.” One can be liberal or conservative and remain open to opposing viewpoints, practical experience, and compromise. But when you start believing that you possess the absolute truth, only then does evidence and experience become irrelevant, and compromise impossible.  

Perhaps these are lessons learned from many years of leading and governing a nation during a time of intense division and hostility. But they are lessons we still need to learn. “Criticism is part of the lifeblood of democracy,” Clinton said during a speech in 2010. “No one is right all the time. But we should remember that there is a big difference between criticizing a policy or a politician and demonizing the government that guarantees our freedoms and the public servants who enforce our laws.”

I will remain forever grateful to President Clinton for restoring my faith in government at a time when America most needed it. For all of his political battles and hardened opposition, the former president has not lost his sense of idealism and hope. As he said on that bright January day in 1993: “There is nothing wrong with America that cannot be cured by what is right with America.”