When at Times the Mob Is Swayed

by Burt Neuborne

  Mistake Two

  In Buckley, justices ruled that efforts to place limits on campaign spending by a candidate or a campaign designed to preserve a degree of political equality flunk First Amendment strict scrutiny because, even if the advancement of political equality is deemed a “compelling state interest,” it can be advanced by the “less drastic means” of subsidizing weak political voices, rather than limiting excessively strong ones.

  Correction Two

  Even if the Supreme Court was right in imposing strict scrutiny on efforts to limit campaign spending by the superrich, the preservation of political equality is unquestionably a compelling governmental interest. The Court’s assumption in 1976 that public financing would provide a less drastic means to preserve equality has been proven wrong, in large part because the Supreme Court has undermined efforts to enact feasible public campaign financing programs.

  The hobbled system of campaign subsidies permitted by the Court since 2011 is unable to function as an effective, less drastic means of protecting equality. Most dramatically, after holding public subsidies out in Buckley as a viable alternative to regulation, in Arizona Free Enterprise v. Bennett, five Republican justices invalidated the most effective version of public financing—the granting of matching funds to enable a publicly funded candidate to stay competitive with her privately funded opponent. The five justices reasoned, with absolutely no empirical support, that the prospect of a public match would deter privately funded candidates from raising private funds. In effect, the Court established the First Amendment right of a well-funded candidate to speak without fear of being contradicted. Arizona Free Enterprise Club should be overruled.

  Mistake Three

  Preventing the appearance or reality of excessive political influence linked to massive aggregate campaign contributions to numerous candidates is not a compelling governmental interest, as long as no single candidate receives a contribution large enough to risk corrupting that candidate. Therefore, the generous six-figure limit on the aggregate amount that a single wealthy individual can contribute to all federal candidates in a given election cycle violates the First Amendment.

  Correction Three

  Ending the systemic corruption of democracy caused by unequal political access and influence linked solely to wealth should be viewed as a compelling governmental interest. No basis can be found in the Constitution for treating the risk of corrupting a single member of Congress as a greater evil than the risk of corrupting the entire political system by making unlimited aggregate contributions to many candidates.

  Mistake Four

  Independent electoral expenditures by supporters of a candidate, as first-person speech, are entitled to a higher level of First Amendment protection than campaign contributions to the candidate, which merely empower a third person—the candidate—to speak.

  Correction Four

  In fact, no legally significant First Amendment difference exists between campaign contributions and independent political expenditures. Campaign contributions are exercises in political association. Independent expenditures are exercises in communicative conduct. Both may be regulated to advance political quality and prevent corruption, or neither may be regulated. But it makes no sense to privilege one over the other.

  Mistake Five

  While large campaign contributions to a candidate may be regulated because they risk creating the appearance or reality of quid pro quo corruption, independent expenditures by supporters pose no such threat and are therefore immune from regulation.

  Correction Five

  Both large campaign contributions to a candidate and massive independent expenditures on behalf of a candidate pose significant risks of generating the appearance or reality of corruption, rendering both subject to substantial regulation. It is naive to believe that office holders remain immune to the temptation to reward an independent supporter who spent massive sums to elect the office holder and may do so again in the future.

  Mistake Six

  No legally significant First Amendment difference exists between the independent campaign spending of individuals and the independent campaign spending of large, for-profit corporations. Therefore, efforts to limit the campaign expenditures of large corporations violate the First Amendment.

  Correction Six

  For-profit corporations lack First Amendment rights because they lack the dignitary traits of human beings that underlie the very existence of First Amendment freedoms. Nor may corporations rely on the First Amendment rights of potential hearers, because the vast majority of Americans do not wish to be bombarded by corporate political propaganda. Citizens United should be overruled.

  Unfortunately, the Supreme Court, as currently constituted, is unlikely to correct any of the six mistakes. Despite such a poor prognosis for short-term success in the current Court, it’s important to continue to remind judges and legislators alike that Buckley and its 2010 offspring Citizens United rest on a series of false premises.

  Eventually the Supreme Court will come to its senses and correct one or all of the mistakes. To hasten that day, it is important to keep pressing for judicial change, even when the prospects of success are slim. We cannot allow the existing law mistakenly hobbling campaign finance reform to harden into concrete without constant challenge.

  In the short run, though, if we are to rescue American democracy from the monied swamp it currently inhabits, the lifeline will have to come in the form of imaginative ways to fund democracy without selling out to the superrich or to special interests. One way, of course, is to continue to develop the internet as a means of raising significant campaign funds through small contributions. A second is to explore a modest tax credit for political contributions. Arkansas tried a $50 state credit, and it works in encouraging thousands of small contributions without the need for a bureaucracy to distribute the funds. A third imaginative approach, adopted by Seattle and South Dakota for local and state elections, calls for the issuance of Democracy Vouchers or Democracy Credit Cards with balances varying from $50 to $100, allowing all eligible voters to spend modest sums at no cost to themselves to advance a favored candidate. Republicans have engineered repeal of the South Dakota program, but it remains a model for reform.

  Finally, several jurisdictions use an enriched matching system, where small private contributions to a candidate are publicly matched in multiples of up to eight to one. New York City has successfully used such a system, which matches at six to one, since 2006.

  There is no need to wait for the Supreme Court’s permission to adopt any of these techniques for lessening the influence of the rich on American political life.

  Finally, this is the place where I’m supposed to deplore the rabid nature of our political discourse, the profusion of extreme, often fraudulent voices on the internet, the degeneration of cable TV into competing propaganda machines, and the threat posed by Russian meddling in our election campaigns. I dearly wish that we were more civil to one another, that the internet wasn’t such a scary place, that someday cable TV will return to journalism, and that the Russians can be forced to keep their hands to themselves. We should, of course, do all we can to preserve the free press from Trumpist attacks. We should do all we can to police the internet for falsity and dangerousness. We should follow the Russian bread crumbs to the end—and then take steps to stop the meddling once and for all.

  I fear, though, that none of those desirable actions will cure our democratic ills. If a nation is unable to cope with irresponsible political speech—by refraining from it, rejecting it, or learning to discount it—even well-functioning democratic institutions will not rescue that nation from political instability and dysfunctional government. If Americans are not fit for self-government because we are incapable of dealing with ugly appeals to bias or systematic dissemination of lies and half-truths, neither government paternalism, nor democratic reforms will save us.

  A well-functioning democracy mirrors a society. It does not cure it. That we must d
o ourselves.

  4

  Do the External Judicial Brakes Work Anymore?

  We’ve just seen that the internal electoral brakes designed by the Founders to slow a runaway democratic train just don’t work anymore. The truth is that if another country operated an electoral system as dysfunctional as ours—with its radically malapportioned Senate, its politically rigged House, an Electoral College that has thwarted majority will twice in the last five presidential elections, systematic disenfranchisement of the poor, and outdated election machinery that can’t count the votes accurately—we’d probably laugh them out of the democracy club.

  So it’s a good thing that the Founders didn’t stop with the internal brakes. Somewhat reluctantly—perhaps even accidentally—they granted an unelected, life-tenured federal judiciary, headed by the Supreme Court, the power to defend our fundamental constitutional rights against runaway congressional majorities, state legislatures, local cops, and especially the president. They called it the power of judicial review and envisioned it as a fail-safe external braking mechanism capable of stopping a runaway democratic train.

  The justices of the Supreme Court—and the Supreme Court’s vast echo chamber of lawyers and academics—are not shy about celebrating judicial review as a wise and necessary check on the potential “tyranny of the majority.” Faced as we are today with a volatile, impetuous, authoritarian, and deeply ignorant minority president who excels at manipulating mobs and exudes contempt for the very ideas of political toleration and respect for human rights, many Americans, including me, look to the nine life-tenured Supreme Court justices and the nine hundred or so lower federal court judges as the ultimate guarantors of our basic freedoms in a dark time. “It can’t happen here,” we tell ourselves, because an independent, apolitical Supreme Court can be counted on to protect us by enforcing the rights codified in the Constitution.

  Two years into the Trump presidency, in the lower federal courts, at least, where good lawyers can cherry-pick reliable Democratic judges by deciding where and when to file their cases, judicial review has functioned exactly as advertised. In case after case, lower federal courts have rebuffed the forty-fifth president, striking down his travel ban, rejecting his refusal to permit transgender people to serve in the military, enjoining his decision to end the Dreamers program, blocking his attempt to punish “sanctuary cities” for refusing to cooperate in the mass deportation of undocumented aliens, stopping his heartless policy of ripping immigrant children away from their parents in an Orwellian effort to frighten desperate people away from seeking asylum in the United States, blocking him from ignoring congressional rules governing asylum, limiting his attempt to roll back environmental protections, blocking his effort to prevent immigrants in federal custody from exercising the right to choose whether to bear a child, and reversing his efforts to muzzle the press by denying disfavored reporters access to the White House.

  I very much wish I could believe that such a soothing story of constitutional stability and judicial resistance will continue when the challenges reach the Republican-controlled Supreme Court. I fear, though, that excessive reliance on the Supreme Court to protect the fundamental rights of the politically and economically weak in the time of Trump is doomed to disappointment on two levels.

  First, history warns that, apart from an uncharacteristic burst of egalitarianism from 1937 to 1972 (the only time since the Civil War that the Supreme Court has been controlled by the Democrats), a Republican-controlled high court has usually been a bad bet to protect the weak. Far more often than we like to admit, when the autonomy-based interests of the strong to “do what they will” have collided in the Supreme Court with the equality-based interests of the weak, Republican justices have tended to break legal ties in favor of the strong, forcing the weak to “suffer what they must.”

  Even before there were Republicans and Democrats as we know them today, during the more than seventy-five years from the Founding to the Civil War, in the absence of any formal protection of equality in the 1787 Constitution or the 1791 Bill of Rights, the justices repeatedly broke legal ties in favor of the autonomy-based rights of the powerful, whether slave owners or budding industrialists, at the expense of equally plausible legal arguments protective of the weak. In Dred Scott v. Sandford, a consensus pick for the Supreme Court’s worst opinion, the Supreme Court enshrined slave ownership as a constitutional property right, denying free blacks any hope of citizenship. The appallingly racist decision in Dred Scott was neither an accident nor, as we like to view it today, an inexplicable exercise in pure evil. Viewed strictly as a formal legal matter, the 1857 decision wasn’t even clearly wrong. It’s what inevitably happens when judges are asked to enforce a Constitution saturated with concern for the rights of powerful individuals to be left alone, but utterly devoid of anything about a countervailing right of equality.

  Under such a one-way autonomy-protective Constitution, judges, with no formal equality handholds to grasp, will almost always be persuaded by legal arguments granting the strong a constitutional right to crush the weak. It should come as no surprise that the first state statute declared unconstitutional by the Supreme Court in 1841 was a Pennsylvania anti-kidnapping law designed to protect blacks from being plucked from the streets of Philadelphia as alleged runaway slaves. Faced with a Constitution that protected the right of slave owners to recover escaped slaves but was utterly silent about the existence of any countervailing equality rights, the Supreme Court dutifully read the document as protecting the constitutional right of an autonomous slave owner to use self-help in recovering an alleged runaway slave, with any legal proceedings delayed until the alleged runaway was carried South.

  The outcomes and reasoning in Dred Scott and Prigg v. Pennsylvania go a long way to explain why many conservative, autonomy-protective Republican justices such as the late Antonin Scalia and his replacement, Neil Gorsuch, are so besotted with the idea of an “originalist” reading of the constitutional text. As Dred Scott demonstrates, originalism asks modern justices seeking to interpret the current Constitution, which protects both equality and autonomy, to ask what the members of the Founders’ generation would have understood the constitutional text meant. Asking that question enables—indeed, it commands—a justice to ignore the constitutionalization of equality in the post–Civil War amendments. Liberated from the complexity of interpreting the current Constitution protective of both autonomy and equality, originalist justices—like the justices who decided Dred Scott and Prigg—are free to pursue a single-minded defense of individual autonomy in the text of an outdated document that says nothing about equality.

  Sadly, the post–Civil War Supreme Court—both Republican and Democratic justices—tended to ignore the newly minted equality rights inserted into the Constitution by the Thirteenth, Fourteenth, and Fifteenth Amendments. Whether the issue was the power of the federal government to protect the rights of freed slaves against local racists, the effort to regulate emerging monopolies, the power to set railroad or utility rates, or the attempt to form labor unions, the late nineteenth-century Supreme Court repeatedly accepted plausible legal arguments designed to protect the autonomy-based right of the strong to be free from regulatory interference (the Court even extended the protection of individual autonomy to corporations), at the expense of equally persuasive equality-friendly legal arguments that would have protected the weak.

  During the first third of the twentieth century, in the name of protecting individual autonomy, the Republican-dominated Supreme Court repeatedly vetoed equality-enhancing legislation aimed at protecting vulnerable employees and consumers against the tyranny of an unregulated market and continued to block equality-based efforts to aid racial minorities in the South. The landmark 1905 case of Lochner v. New York, where the Supreme Court struck down minimum-wage and maximum-hour protections, was the twentieth-century economic analogue of Dred Scott. Instead of the autonomy-enhancing constitutional right of the strong to own enslaved people in Dred Scott,
the Lochner Court protected the autonomy-enhancing constitutional right of the strong to impose contracts on “wage slaves” free from regulatory interference.

  Lochner and the numerous other early twentieth-century cases striking down minimum wage, maximum hours, and safety regulations are examples of what happens when judges decide constitutional cases by unthinkingly glorifying autonomy over equality. It’s important to recognize, though, that aggressive judicial protection of individual autonomy can help the weak, as well as reinforce the strong. The two Supreme Court cases that launched the modern protection of individual human rights—Pierce v. Society of Sisters (1923) and Myers v. Nebraska (1925)—were pure autonomy cases decided under the same substantive due process clause that drove the result in Lochner.

  In Pierce, the state of Oregon lashed out at Catholics by forbidding parents from sending their children to private elementary schools. In Myers, post–World War I anti-German feeling caused Nebraska to ban the study of the German language. In both cases, the justices—both Democrats and Republicans—lined up to protect the individual autonomy of the weak against the tyranny of the transient electoral majority. That’s an important lesson for today’s world, where a Republican-controlled Supreme Court is likely to favor legal arguments advancing autonomy for the foreseeable future. It’s one reason not to kill all the lawyers—yet.

  As a purely legal matter, things improved considerably for the weak in the Supreme Court from 1937 to 1972, when the only Democratic-controlled Supreme Court since the Civil War conducted a master class in how to read the Constitution from the bottom up instead of from the top down, giving us FDR’s New Deal, Brown v. Board of Education, “one person, one vote,” broad protection for people of color, and the beginning of women’s rights as part of a flood of equality-driven Warren Court constitutional cases that rewrote much of the Constitution.