The First Amendment vs. Democracy.

Author:Edelman, Gilad


After years spent impotently bemoaning the symptoms of Citizens United v. FEC, congressional Democrats may have finally settled on a treatment. In March, the House of Representatives passed H.R. 1, a sweeping democracy reform bill that includes two promising campaign finance measures. One would provide a six-to-one match for donations up to $200 to candidates for federal office who swear off bigger contributions and raise the first $50,000 on their own. The other would create a pilot program in which the government would give each voter who wants one a $25 voucher to donate to their preferred candidate.

These new-generation proposals are examples of so-called "level-up" campaign finance reform. They are designed to counter the power of big money not by pushing down on the super rich, but by boosting everyone else. In 2018, for example, only 0.47 percent of Americans donated more than $200 to candidates, parties, or PACs, according to the Center for Responsive Politics. The money they gave, however, accounted for nearly three-quarters of all individual contributions. This leads to what the legal scholar Lawrence Lessig, a prominent supporter of the voucher idea, calls "dependence corruption," in which politicians overwhelmingly cater to the tiny subset of wealthy funders on whom they rely. Spending limits may reduce the overall amount of money in play, but they don't do much to shift where the bulk of it comes from. Level-up reforms might.

The other argument for level-up programs is necessity: the Supreme Court has essentially taken level-down off the table. In its landmark 1976 decision in Buckley v. Valeo, the Court held that the First Amendment protects Americans' right to spend money on elections. Buckley was a compromise decision that allowed certain spending restrictions, as well as public campaign financing. But in Citizens United, in 2010, the Court dramatically rolled back that compromise by declaring that the government had no compelling reason to limit independent expenditures. This meant the super-rich were suddenly free to donate as much as they want to nominally independent super PACs. And indeed, outside spending has since exploded, quadrupling from almost $340 million in 2008 to $1.4 billion in 2016.

By making it easier to build campaigns on small-dollar donations, the proposals in H.R. 1 represent a clever way to counter the forces unleashed by Citizens United. But like any tenacious malignancy, the legal opposition to campaign finance reform is itself capable of adaptation. Even if Democrats take back the Senate in 2020 and turn H.R. 1 into law, there's reason to worry about those provisions surviving the Supreme Court. In fact, there is already a case creeping through the court system that could stop the new wave of campaign finance reform almost before it begins. This summer, the Washington State Supreme Court will consider a challenge to Seattle's first-of-its-kind voucher program, which was implemented in 2017. The plaintiffs argue that the system violates their First Amendment rights by using their taxes to subsidize the speech of candidates they don't support. The case, Elster v. City of Seattle, could ultimately make it to the U.S. Supreme Court.

The suit still looks like a long shot--a distant legal meteor destined to burn up in the atmosphere. But the Roberts Court has proven receptive to more than a few outlandish conservative legal challenges, and it has struck down both of the public financing schemes it has considered. If the plaintiffs in Elster prevail, it will be a reminder of the tenuousness of any legislation aimed at enhancing democracy under the current Court majority. More broadly, a victory for the plaintiffs would ex pose the rot at the center of First Amendment doctrine. The law governing freedom of speech turns out to be riven by intellectual inconsistency. On the one hand, the Court has said that forcing people to subsidize the speech of others is unconstitutional. On the other, it allows the government to use our taxes to fund all manner of communication--which entails forcing people to subsidize the speech of others. This contradiction creates a vacuum for judicial activism. In the opportunistic hands of the Supreme Court, the...

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