McCutcheon: Should the rich speak louder?

By Jeffrey Rosen
April 3, 2014

On Wednesday, the Supreme Court handed down its most important decision on campaign finance reform since Citizens United. The decision, McCutcheon v. Federal Election Commission, seemed to divide along familiar ideological lines, with Chief Justice John Roberts writing the majority opinion for five conservatives and Justice Stephen Breyer, writing the dissent for the four liberals.

What really divided the court, however, wasn’t partisan politics pitting Republicans against Democrats but two conflicting views of the First Amendment. Which view you embrace depends on whether you see the McCutcheon decision as a principled triumph for unpopular speech or a First Amendment disaster that will ensure that a handful of the richest Americans can use their vast resources to drown out the voices of everyone else.

The First Amendment view embraced by Roberts and his conservative colleagues is rooted in individual liberty. There’s no right in our democracy more fundamental, Roberts began, than the First Amendment safeguards for “an individual’s right to participate in the public debate through political expression and political association.”

People exercise both these rights when contributing to candidates, Roberts said, whether they are a “lone pamphleteer” or someone who spends “substantial amounts of money.” He maintains that Congress may not “restrict the political participation of some in order to enhance the relative influence of others.”

The First Amendment that Breyer and the liberal dissenters embrace is far different. Breyer objected that Roberts’s focus on “the individual’s right to engage in political speech” fails to account for “the public’s interest in preserving a democratic order in which collective speech matters.”

Breyer explained that crucial civic discourse can be overwhelmed by the inequalities of wealth. “Where enough money calls the tune,” Breyer wrote,” the general public will not be heard.” That’s why he stressed “the constitutional importance of Congress’ con­cern that a few large donations not drown out the voices of the many.”

Both views of the First Amendment are plausible. They point, however, in very different directions. Roberts insisted that individual free expression and association is so important that only evidence of quid pro quo corruption — for example, trading votes for money — can justify limiting it. Breyer’s emphasis on collective political participation led him to fault the court for defining corruption too narrowly, and ignoring the Founders’ concern that representatives are responsive to all of “We the People” — not just the wealthy few.

What’s significant about this debate is that neither Roberts nor Breyer denied that the contributions of the wealthy few have the potential to drown out the voices of the less wealthy many.

But Roberts insisted that the First Amendment doesn’t allow Congress to address the problem by requiring the wealthy to turn down the volume. He said Congress instead must use alternatives to restricting speech — such as disclosure laws — that critics say are ineffective or unrealistic.

A similarly surprising consensus emerged Wednesday in a debate about the McCutcheon decision between Floyd Abrams, the leading civil libertarian liberal defender of Citizens United and the Roberts view of free speech, and Lawrence Lessig, the leading crusader against what he calls the “dependence corruption” that makes candidates dependent on their richest donors to the exclusion of everyone else.

Abrams agreed with Lessig that “wealthy people have the power to communicate much more than people who don’t have money.” This influence can come in two ways: the voices of the wealthy can influence the public debate by paying for a barrage of ads or push polls more than those who can’t afford ads and push polls while at the same time, because money buys access and influence, candidates are likely to pay more attention to their most generous contributors.

Abrams disagreed only with Lessig’s proposed solution — limiting spending by the rich to reduce their likelihood of influencing elections or candidates. Inequality of wealth is a social problem, Abrams said, but “a core lesson of the First Amendment is that we deal with social problems at our best in ways that don’t limit freedom of expression” — such as changing the tax or anti-trust laws.

Lessig, like Breyer, countered that far from forbidding efforts to prevent the rich few from drowning out the voices of the less rich many, the First Amendment requires it. “The majority opinion,” Lessig said, “is contrary to the idea of creating a democracy where the government is responsive to the people. He continued, “A conception of corruption that doesn’t allow Congress to achieve the objections of representative democracy” — where Congress is dependent on all the people not just the rich — violates the Framers’ original understanding.

Lessig and Abrams, whose debate was hosted by the National Constitution Center, agreed that the McCutcheon decision would be unpopular with a majority of Americans. But, Abrams insisted, this is the price of the First Amendment.

Roberts made a similar point in his majority opinion. “If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition,” he said.

Those who oppose the Supreme Court decisions striking down campaign finance reform but support First Amendment protections for unpopular speech need to respond to Roberts’ and Abrams’ challenge It is not enough to say these decisions undermine elections because the voices of the powerful few drown out the voices of the less powerful many — since neither conservatives nor liberals dispute that.

The stronger response is that the speech of the rich has the potential to make the people’s representatives less dependent on the people themselves. The Framers of the First Amendment might well have concluded that far from forbidding Congress’s efforts to make government more responsive to all the people, the Constitution requires it.

 

To listen to the National Constitution Center’s podcast debate about the Supreme Court’s McCutcheon decision, click here.

 

PHOTO (Top): The Supreme Court building seen in Washington, May 20, 2009. REUTERS/Molly Riley

PHOTO (Insert 1): Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, Feb. 9, 2006. REUTERS/Jim Young

PHOTO (Insert 2): Supreme Court Justices Stephen Breyer (L) and Antonin Scalia testify before a House Judiciary Commercial and Administrative Law Subcommittee hearing on Capitol Hill in Washington, May 20, 2010. REUTERS/Kevin Lamarque

53 comments

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The issue is corruption, or privileged access to politicians after making a contribution to them or their party. This money cannot be stopped, not with this SCOTUS lineup. However, the link between the money and the name of the person who gave the money is not privileged or a right. Answer: Require all political contributions to any federal representative to be anonymous, filtered through an agency (such as the IRS which distributes presidential campaign contributions volunteered on tax forms). You want to give congressman or Presidential candidate XXX some money, submit an IRS form, with your SocSec number, the name of the candidate. DONE. You’ve spoken, monetarily, no one has stopped you from making this contribution HOWEVER, the reward of access and the inherent corruption of KNOWING who gave you money is gone. With this system we can all call our congressmen and say we gave them the money they received from the IRS, how can they know it wasn’t us? Any Congressman who recieves money outside this system would be arrested for attempted corruption and selling influence. Got any better idea?

Posted by AvidHistorian | Report as abusive

The USA has always been ruled by capital, all arguments to the contrary are either intentionally deceptive or delusional. The current court is simply allowing the pigeons to roost and cooing alongside them. The constitution is elitist and parasitic and designed that way; based on slavery to begin with.

Posted by wilhelm | Report as abusive

The Richest Presidents Of All Time – Inflation Adjusted:

#1: George Washington – $525 Million (Owned 8000 acres of Virginia farmland and 300 slaves)
#2: Thomas Jefferson – $212 million (Owned 5000 acres of Virginia farmland plus dozens of slaves)
#3: Theodore Roosevelt – $125 million (Inherited large trust fund and more than 200 acres of land in Long Island)
#4: Andrew Jackson – $120 million (Real estate, 300 slaves, inheritance plus married into money)
#5: James Madison – $100 million (Owned 5000 acres of Virginia farmland and dozens of slaves)
#6: John F. Kennedy – $100 million (Father Joseph was worth $1 billion from liquor importation, real estate and more)
#7: Lyndon B. Johnson – $100 million (Owned a radio and TV station plus a 1500 acre ranch in Texas)
#8: Bill Clinton – $80 million (Bill’s net worth was jut $700k on his first day in office. Since re-entering private life, Bill has earned more than $100 million from speaking engagements alone. He also has made a fortune from book sales)
#9: Herbert Hoover – $75 million (Made millions in the mining industry, owned millions in valuable real estate)
#10: Franklin Delano Roosevelt – $60 million (Inherited millions, owned hundreds of acres of valuable real estate on the East Coast)
#11: John Tyler – $50 million (Owned thousands of acres of tobacco plantations)
#12: George W. Bush – $35 million (Texas Rangers, oil investments, stocks, book sales and speaking engagements)
#13: James Monroe – $30 million
#14: Martin Van Buren – $25 million
#15: George H. W. Bush – $25 million
#16: Grover Cleveland – $25 million
#17: John Adams – $20 million
#18: John Quincy Adams -$20 million
#19: Richard Nixon – $15 million
#20: Ronald Reagan – $13 million
#21: Barack Obama – $12 million
#22: James K. Polk – $10 million
#23: Dwight D. Eisenhower – $8 million
#24: Gerald Ford – $7 million
#25: Jimmy Carter – $7 million
#26: Zachary Taylor – $6 million
#27: William Henry Harrison – $5 million
#28: Benjamin Harrison – $5 million
#29: Millard Fillmore – $4 million
#30: Rutherford B. Hayes – $3 million
#31: William Howard Taft – $3 million
#32: Franklin Pierce – $2 million
#33: Chester A. Arthur – $1 million
#34: William McKinley – $1 million
#35: Warren G. Harding – $1 million
#36: Calvin Coolidge – $500 thousand
#37: Woodrow Wilson – $400 thousand
#38: Harry S. Truman – $300 thousand
#39: James Buchanan – $250 thousand
#40: Abraham Lincoln – $250 thousand
#41: Andrew Johnson – $200 thousand
#42: Ulysses S. Grant – $50 thousand
#43: James A. Garfield – $10 thousand

Posted by ARJTurgot2 | Report as abusive

Sourced From WaPo
http://www.washingtonpost.com/blogs/wonk blog/post/who-are-the-1-percenters/2011/ 10/06/gIQAn4JDQL_blog.html
—————
Taken literally, the top 1 percent of American households had a minimum income of $516,633 in 2010 — a figure that includes wages, government transfers and money from capital gains, dividends and other investment income.

That number is down from peak of $646,195 in 2007, before the economic crisis hit, all adjusted to 2011 dollars, according to calculations by the Tax Policy Center. By contrast, the bottom 60 percent earned a maximum of $59,154 in 2010, the bottom 40 percent earned a max of $33,870, while the bottom 20 percent earned just $16,961 at maximum. As Annie Lowrey points out, that gap has grown wider over time: “The top 1 percent of households took a bigger share of overall income in 2007 than they did at any time since 1928.” (And in New York City, it’s even more skewed: the top 1 percent have an average of $3.7 million in income.)

When you look at the disparity in net worth, things look even more skewed. Wealthier Americans have assets — in home equity, stocks and other investments — that generally outstrip their cash income. Average wealth of the top 1 percent was almost $14 million in 2009, according to a 2011 report from the Economic Policy Institute. That’s down from a peak of $19.2 million in 2007.

Posted by ARJTurgot2 | Report as abusive

True story:

Some years back, before the whole 1% concept became a topic, I was curious as to what the definition of ‘rich’ was in the U.S. Eventually, I found a story about a divorce lawyer out in LA, who specialized in the wealthy. Her threshold for advancing money to cover costs was $15 million. Above $15M there was seldom any fight, thus no fees. Below $15M, lifestyles began to get impacted, and people would fight like 6ell, and thus become worth taking on. Interesting that the numbers from WAPO come out about the same.

Just saying…

The rich are very different than you and I; they don’t bother to post on reuters. Either that, or they pay someone else to do it.

Posted by ARJTurgot2 | Report as abusive

Point of Clarification:

Wealth to be divided was the $15M threshold, not her fees were $15M.

Posted by ARJTurgot2 | Report as abusive

Excellent information for supplementing this op-ed, ARJTurgot2. Thank you.

I propose we look at it another way than we’re used to doing, which is usually some kind of conversation about whether or not certain people should pay more in taxes or maybe something about wealth redistribution. We have a finite amount of resources on this planet. The question should be, what is the best way of utilizing those resources that is most advantageous to the human race as a whole? The way we’re currently practicing free market capitalism is definitely not the way most advantageous for the entire human race. A very few people are getting most of the benefit, and they’re destroying our planet to do it. Our oceans are dying. Climate change will wreak havoc on life as we know it. It’s already beginning. And when it happens, the same people who perpetrated it and are resistant to doing anything to stop it, will be the only ones in a position to best protect themselves and their families.

We have to do a better job of piloting our future. We need a system that makes the best, most efficient, use of our limited resources. Capitalism can be a good system, but it requires restructuring, better oversight, and regulations that make the best use of our resources for all, and avoids waste. Our current system fails miserably at that. It’s good at encouraging people to work hard and develop their minds, but it’s mostly geared toward making money, as if nothing else really matters. And the more money the better. Such a system encourages waste, fraud and abuse. We can do better. We’ll have to do better if we’re interested in surviving.

Posted by carnivalchaos | Report as abusive

If you want to turn America into a 3rd world country, just keep worshiping the rich and removing all regulations on the rich, at their urging. That’s Haiti’s recipe.

Posted by AlkalineState | Report as abusive

@paintcan,

Sorry to disappoint but I’m 73, hale and hearty! I’m planning on living to 100 because it’s NOT going to happen unless one properly prepares and works at it (no guarantee, though).

Methinks I’ll be irritating you for a long, long time yet. Didn’t comment in this thread because I thought comments pretty much covered the bases.

Posted by OneOfTheSheep | Report as abusive

Yes, I believe Paris Hilton and Jane Fonda should have more say than me because they are rich. So they must be smart and hard-working and natural leaders…. or how else could they get all that money?

Give all your power to the rich. They will lead us forward :)

Posted by AlkalineState | Report as abusive

I’m glad you’re still going strong. Would like to see your comment which broadens my view usually.

Posted by Kailim | Report as abusive

All money can buy is OUR votes. Not one of mine goes to any republian/liberterian/tea party member or people posing as democrats and independents. There are plenty of people out there like OUR Senators Elizabeth Warren (D), Angus King (I), Bernie Sanders (I), Ed Markey (D)and Tim Kaine (D)who want to restore democracy in America. We need to find and support them from across America. Marjority rules if we vote.

Posted by njglea | Report as abusive

@AJTurgot – Wealth cited for Washington and Jefferson looks suspicious. Even if most of their wealth was in land and that was used to estimate their wealth in today’s dollars that land wouldn’t have been nearly as valuable then. Most of the acreage would have been undeveloped and would have been effectively worthless unless there were tenant farmers on it generating an income for the estate. The houses and outbuildings were not very large and weren’t as complicated and sophisticated to build as in later periods. Rising populations increased their value but neither owner could have claimed that then. They also used on-site materials for the most part. Slave labor should be valued as a very low rate of pay and they tended to live in very poor physical surrounding, all of which they had to build themselves with cheap materials they provided themselves from estate resources. They could augment their diet with some estate produce (I suppose), their own gardens and anything they could catch themselves. In other words. Washington and Jefferson weren’t as rich as they were powerful. You can’t really translate power into dollar amounts easily.

Never the less, you could build houses like Monticello and Mt Vernon today for a few million and Mt Vernon had a lot of copies or modern adaptations over the centuries, especially in the 20th century, but they tended to be built with different technology and materials and that makes them more expensive then the originals.

Real estate assets can only really be reliably valued in terms of the present market value otherwise they really aren’t worth inflation adjusted dollars. They are very sensitive to population pressure. Most of the 13 colonies were very nearly wilderness.

They couldn’t have been the wealthiest presidents of all time in as much as the country wasn’t all that wealthy either. Both of them died in severe financial difficulties. Jefferson died bankrupt. Both estates were sold and went into decline though the 19th century and the houses were very dilapidated before they were made national historic sites. I don’t think either of them ever counted their wealth in millions of dollars even in their own day. I think Mt Vernon was an abandoned building, so that means the estate was idle. Monticello was so far gone animals had been kept in it.

It might be a whole different story if the money that may flood to fund elections here actually managed to elect people that would willingly bankrupt themselves for the welfare of the country but we will probably see something more like Old Rome, or aristocratic Europe, or South American during the 19th and early 20th centuries, where Congress becomes a rich man’s club and totally enthralled to big wealth’s priorities. While the rest have no or little union protection and many more are on some form of national dole. Professionals – except for some public employees like teachers and public employees, don’t tend to have unions. The rest will be wage slaves and dependent on very large businesses for a reliable income or they won’t be able own a house (and mortgage). iT’s a democracy but with substantial nudges in the direction of the companies interest. They may also find pressure is put to bear on them to vote like everyone else in the company votes or you just aren’t promoted.

The whole country could become a company town and, in many ways, already is. We’ll have something that looks like “democracy” but more like the British model during the time before WWI or the Chinese system but with open elections of the officials. The candidates will all have to undergo a largely secret vetting process before you ever see their names.

If it is like the old British model – that would be acceptable because the upper class was expected to fight and possibly die in the wars to create the empire. A lot of upper class men died in WWI. That isn’t what this country has now. Only those with the fewest opportunities find military service attractive and it’s been that way since the Vietnam war.

Now we have a career military that could possibly make itself something like the Praetorian guard, that can have a sizable impact on who is vetted fit for candidacy.

Am I way off the mark here?

Posted by paintcan | Report as abusive