Open season on democracy and the rule of law
The Supreme Court received intense criticism from many quarters after it decided Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). In that 5-4 decision, the Supreme Court sharply reduced the restrictions on political campaign contributions. In particular, the Supreme Court ruled that the First Amendment to the Constitution somehow prohibits limiting the funneling of money to candidates by corporations and other associations in the electoral context. The opinion of the 5-Justice majority in Citizen’s United turned largely on the assumption that campaign dollars essentially equal speech. Under such reasoning, corporations making more and larger campaign contributions have more speech and, therefore, potentially greater political power than actual people – that is, the voters. Citizens United, then, has undercut democracy in the name of supposedly promoting democracy.
Unfortunately, in another 5-4 decision, the Supreme Court has just taken the radical ruling in Citizen’s United to an even more extreme level. In McCutcheon v. Federal Election Commission, the 5-Justice majority recently ruled that caps on political contributions by individuals violate the First Amendment under the same “logic” of Citizens United. As a practical matter, virtually no restrictions on political campaign contributions exist now.
Many fear that future elections cycles will be even more overwhelmed by secretive political campaign contributions than the last election season, which exceeded all prior election cycles. The dollar dominance of the political process, if it continues unchecked, will risk compromising the rule of law in fundamental ways. In particular, key campaign contributors with the most “speech” very well may, through their political proxies, seek to thwart the aggressive prosecution of employment law, civil rights, and consumer protection claims as being “bad for business.” As long as the flawed premise that money equals speech prevails, advocates for fairness in the workplace, in the market place, and in the larger community – and for democracy in general – will face an uphill battle. It is not too early to seek a better path.