In other words, durational residence requirements cannot be imposed on voting in a meaningless general election, the outcome of which has often been preordained by gerrymandering, because waiting periods discriminate against newcomers, but a long waiting period can be imposed on the right to vote in the primary election that is the only democratic game in town. Party leaders then reinforced their stranglehold on the nominating process by persuading the Supreme Court that “sore loser” laws, preventing the loser in a major party primary from mounting a third-party or independent challenge in the general election, are constitutional.36 Thus in the name of political stability, leaders of the two major parties were granted a constitutional license by armchair political scientists dressed as Supreme Court justices to perpetuate their personal power and their duopoly of the electoral process. Maybe Frankfurter was right, after all.
With closed primaries safely neutralized by long ideological waiting periods and sore-loser laws, party leaders turned to undermining two more adventurous efforts to democratize the major-party nominating process—open primaries, in which all registered voters can vote, and blanket primaries, in which all voters pick the major party candidate they wish to nominate for each office in a single, unified primary election. Despite the fact that California’s adoption of blanket primaries had increased voter turnout by 10 percent and tended to favor moderates of both parties, the Supreme Court ruled that blanket primaries violated the First Amendment because they allowed nonparty members too much power over the selection of a party’s nominee.37 The Court pumped a little democratic air back into the nominating process by narrowly upholding Washington State’s nonpartisan “top two” primary, in which all candidates for a given office are listed on a single ballot and the top two vote getters advance to the general election.38 The justices warned, though, that evidence of voter confusion over which candidates actually belonged to what party might invalidate the practice.
The Supreme Court’s ban on blanket primaries and its equivocal approach to the top-two primary cast doubt on the constitutionality of open primaries, where any voter, regardless of party affiliation, can choose to vote once in one or the other major party’s primary. Several lower courts have suggested that open primaries can survive by treating a voter’s decision to participate in a party’s primary as an “indicia of affiliation,” turning the voter into an instant member of the party. Such formalistic nonsense highlights the absurdity of viewing the two major parties as if they were hermetically sealed private associations when they choose their nominees, especially in areas where securing the nomination is tantamount to election.
The Court’s insistence on treating major parties as private associations for the purpose of the nominating process even casts doubt on whether political parties can be forced to nominate through primaries at all, instead of allowing the political bosses to choose the candidate in a “smoke-filled room.” The justices make almost no effort to harmonize recent cases, which treat the major-party nominating process as a purely private exercise, with earlier cases that treated it as an adjunct of the election itself. The two inconsistent lines of precedent simply run side-by-side on parallel tracks. Being on the wrong track can be fatal to reform efforts. For example, New York State purportedly elects its judges. But the reality is that they are patronage appointments by local Republican and Democratic leaders, ratified by rigged judicial nominating conventions and uncontested general elections where the two major parties often cross-endorse each other’s judicial candidates. The lower federal courts put the case on the older track of precedent where the major-party nominating process is viewed as an adjunct of the general election. Both the district court and the Second Circuit had no difficulty recognizing that New York’s boss-controlled judicial nominating system denied challengers a fair chance to contest the bosses’ choice for the nomination. The Supreme Court simply switched tracks, insisting that the major-party judicial nominating process was a private affair, immune from constitutional review. To add insult to injury, the Court claimed to be protecting the First Amendment associational rights of the very party members who wanted to challenge the nominating process.39
The story of the failed effort to pump democracy into the nominating process closes with Oklahoma’s decision to forbid a minor political party from inviting members of the two major parties to vote in its primary. Six justices upheld the ban.40 When the smoke cleared, only independents were able to join with minor-party members in voting in a minor-party primary. Members of the Republican and Democratic parties were imprisoned in their respective ideological spaces. So major parties have a constitutional right to open their primaries to independents and possibly to defecting members of the other major party. But ideological protest parties, seeking to challenge the electoral status quo, can be forbidden from inviting members of the two major parties to vote in their primaries. From a democracy standpoint, it’s hard to imagine anything worse.
If political gerrymandering overpowers democracy in the general election and excessive deference to local party bosses erodes democracy at the nominating stage, the only other democratic game in town is competition from third parties. Once again, the early precedents were hopeful. In the nineteenth century, a vibrant third-party political culture posed constant challenges to the major parties. Abraham Lincoln won a four-party race for president in 1860. In 1968, six justices recognized an equality-based constitutional right to ballot access for third parties.41 Once again, however, equality-based constitutional protection of democracy failed to follow through on its early promise.
Instead of viewing ideologically driven minor parties as dissenting voices with a First Amendment right to participate in the electoral debate, the justices have insisted on treating them as if they were genuine competitors for electoral success. The resulting constitutional doctrine invalidates “unduly burdensome” third-party ballot access regulations but permits rules requiring a showing of significant electoral support before third parties can gain a ballot listing. It forbids participants in a major-party primary from signing a third-party nominating petition. It encourages the major parties (which control the legislatures) to impose the most onerous statutory requirements possible on ballot access for minor-party challengers without triggering the Supreme Court’s amorphous constitutional veto.42 The restrictions typically force minor parties to secure a significant number of signatures on nominating petitions during a relatively short period of time long in advance of the election from a shrinking pool of eligible voters who are allowed to sign only one petition but none at all if they voted or intend to vote in a major-party primary.
But the justices didn’t stop there. The key to the nineteenth-century culture of vibrant minor parties was the ability of a minor party to cross-endorse a major-party candidate, giving adherents the ability to cast a vote for the minor party’s ideological position while playing a genuine role in the choice of who wins the election. Often a cross-endorsing minor party would poll the deciding votes in an election, opening the way to negotiations on assimilating its ideological positions into the major-party platforms. The power of minor-party cross-endorsements was not lost on the leaders of the major parties. From 1900 to 1910, forty-one states under the control of one or the other of the major parties outlawed cross-endorsements, putting an end to vibrant minor parties in the twentieth century. In 1997, six justices upheld a Minnesota cross-endorsement ban against a minor party that sought to endorse the candidate of the Democratic Party and a Democratic candidate who wished to accept the minor-party endorsement.43 To make things even worse for democracy, the justices formally recognized a legitimate state interest in preserving the duopoly power of the two major parties.
So under current constitutional ground rules, the two major parties are treated as autonomous private associations whenever political bosses want to prevent outsiders from challenging their powers, but then they morph into protected wards of the state when a minor party threatens the duopoly of the two major parties.
/> Madison would be aghast.
The Supreme Court has even rejected the last gasp of the alienated voter, the ability to cast a write-in protest ballot. In 1992, a voter in Honolulu wishing to cast a write-in ballot (unfortunately, for Donald Duck) argued that casting a write-in ballot is the quintessential act of political protest. The Supreme Court majority, utterly deaf to Madison’s music, rejected the idea that voting is a First Amendment–protected exercise of political expression and association, viewing the casting of a ballot as nothing more than an instrumental means of choosing a public official to govern.44 Because Donald Duck can’t govern, reasoned the Court, you have no First Amendment right to vote for him—or anyone else who can’t possibly win. Some instrumental choice: the nomination is rigged by party bosses, the general election is gerrymandered into insignificance, third parties have been strangled, and you can’t even cast a write-in protest vote.
FUNDING DEMOCRACY
That brings us, may the gods help us, to the Supreme Court’s treatment of campaign finance. As we’ve seen, by applying the equality-driven law of democracy, the Supreme Court has set the dial on the interplay between motive and democracy at about the worst possible place, encouraging cynics to seek to suppress the vote but discouraging idealists from seeking to undo the continuing political consequences of past racial discrimination. In the political gerrymandering cases, the Court has announced itself powerless to act while political leaders of the two major parties cement incumbents into office, unfairly draw electoral lines to benefit the party in power, and turn genuinely contestable legislative elections into an endangered species. In the major party duopoly cases, the Court has surrendered control of the major party nominating process to the political leaders of the two major parties, blocked minor parties from challenging the major parties’ hegemony, and failed even to protect write-in protest voting. But it is in the campaign financing cases that the Supreme Court has reached its democratic low point. If a sworn enemy of democracy had been given the task of designing our campaign funding system, that enemy could not have done a better job of sabotaging Madison’s music than Frankfurter’s armchair political scientists wearing black judicial robes.
In 1974, in the wake of Watergate and the ugly campaign-spending scandals during the Nixon administration, political momentum built in Congress for an effort to reform the excessive role of big money in American politics. Instead of a genuine reform bill, though, Congress sought to purge almost all money from elections, a “reform” that just happened to coincide with the best interests of powerful incumbents. Election spending by presidential candidates was capped at two thirds of the paltry amount spent in 1972 by George McGovern in the worst presidential loss of the twentieth century. Congressional campaign spending was similarly capped at unrealistically low levels. Campaign contributions were limited to $1,000 per candidate per election. Election spending by independent supporters of a candidate was capped at less than the cost of a quarter-page ad in the New York Times. Finally, candidates of the two major parties were to receive discriminatory subsidies that were unavailable to independents and third parties.
In short, under Congress’s 1974 “reform” agenda, it would have been illegal to spend enough money to oust an incumbent, and the duopoly of the two major parties would be reinforced. I joined a team of ACLU lawyers challenging the reform statute on behalf of, among other folks, James Buckley, the Conservative Party senator from New York. I focused my efforts on the unfairness of using discriminatory public subsidies to further cement the hegemony of the two major parties. Predictably, that argument lost. The Supreme Court didn’t break a sweat in upholding the discriminatory subsidies. Only Chief Justice Rehnquist agreed with me. The Court also upheld the ceiling of $1,000 (now $2,600) on campaign contributions to a candidate in connection with a given election. Because most election cycles include two elections—a primary election and a general election—the current de facto ceiling in any election cycle is usually $5,200 per candidate. The Buckley Court also upheld aggregate ceilings on the total amount that any donor could contribute to all candidates and political parties in a given election cycle (now $123,200), but the current Supreme Court, reversing that part of Buckley, struck down the aggregate limits, leaving only the individual candidate ceiling of $5,200 in effect.45 It is now possible, therefore, for a single billionaire to contribute unlimited sums to political parties and multicandidate committees, as long as no candidate gets more than $5,200. Given the substantial number of eligible candidates and other eligible political entities, by my count, a donor can now cut a check to party officials for up to $3.2 million in connection with each election cycle, and leave it to them to distribute the largesse.46
Having upheld limits on campaign contributions to individual candidates, the Buckley Court then went on to strike down Congress’s effort to place ceilings on how much a candidate, or an independent supporter or opponent of a candidate, could spend on trying to influence the outcome of an election. The net result of upholding the half of the law limiting contributions while striking down the other half regulating spending was a campaign finance system that no rational person would have chosen and that not a single member of Congress had supported.47 Without considering its impact on democracy, the Buckley Court created a hybrid campaign finance system for candidates and political parties that limits the supply of campaign cash raised through contributions, but leaves demand wholly unregulated. In effect, the justices built a campaign finance system that unwittingly replicates the nation’s catastrophic approach to heroin and cocaine—concentrate all your efforts on interdicting supply but pay little or no attention to reducing demand. It doesn’t work for drugs. It doesn’t work for campaign financing.
Worse, because independent spending was left wholly immune from regulation, ideological outliers unconnected to the candidates or the two major political parties were given a huge financial advantage. Welcome to the Koch brothers, who have spent countless millions seeking to control our political agenda and influence our elections. If anything good can be said about the Supreme Court’s recent invalidation of aggregate contribution limits, it is that the 650 billionaires who hit the aggregate contribution ceiling in the last election can now purchase undue influence directly from a political party, so now party officials can get their hands on some of the big money that was being spent independently. Maybe that will enable party leaders, who tend to seek to build broad coalitions needed to win elections, to stand up to big-spending ideologues like the Koch brothers. But that’s where the good news ends. It’s now a regime of “one dollar, one vote.” Billionaires have a choice: they can buy undue influence independently, à la carte, or purchase it directly from party leaders in a prix fixe deal.
The Buckley Court’s decision to approve stringent limits on campaign contributions to individual candidates but strike down all limits on campaign spending rests on a series of fiercely contested propositions of law that, taken together, have been a democratic disaster. First, the Supreme Court ruled that the act of spending money to elect a candidate is a form of “pure speech,” entitled to the highest level of “strict scrutiny” free-speech protection. Eight years before Buckley, the Supreme Court had ruled that the act of burning a draft card to protest the Vietnam War was not pure speech but rather “communicative conduct” entitled to only a watered-down level of First Amendment protection.48 Sixteen years after Buckley, moreover, the Court ruled that the act of attempting to cast a write-in protest vote isn’t even communicative conduct, much less pure speech, and is not entitled to any First Amendment protection at all. Why the act of spending gobs of money to sway an election is “pure speech” but the acts of burning a draft card and casting a write-in protest ballot are not is a secret known only to certain members of the Supreme Court.
Deciding whether a political contribution is pure speech or communicative conduct is more than just an exercise in semantics. The level of First Amendment protection depends on which box you check. If, like a majority
of the Supreme Court, you check the pure-speech box, you trigger First Amendment strict scrutiny, a lethal form of judicial review that requires the government to prove that the regulation at issue is the “least drastic means” of advancing a “compelling” government interest in preventing a grievous and immediate harm. The government almost never wins a First Amendment strict-scrutiny case. On the other hand, if you choose the communicative-conduct box, the regulation will be upheld if it is a “narrowly tailored,” good-faith effort to advance a “substantial” governmental interest unrelated to the suppression of speech. As the draft card–burning case illustrates, the government usually wins under the less stringent standard of review. Unlike the Fourteenth Amendment equality cases discussed earlier, which require a showing of impermissible purpose, First Amendment strict-scrutiny cases are decided on the basis of the law’s effect, not its purpose. Good intentions just don’t count. Not surprisingly, in the thirty-eight years since unlimited campaign spending was equated with pure speech, no effort to limit campaign spending has breached the strict-scrutiny wall.
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