By Allie Boldt & Adam Lioz*<\/p>\n
The Supreme Court\u2019s flawed approach to money in politics paved the way for Trump-style politics\u2014and must change to rescue our democracy. <\/em><\/strong>\u00a0<\/em><\/p>\n In case after case<\/a> over the last 40 years, the Supreme Court has struck down laws designed to protect our democracy from the influence of big money. The Court manufactured a right for the wealthy and the business sector to spend billions of dollars on elections, and then protected that \u201cright\u201d at times even more vigorously than it protects our precious right to vote. This approach has warped our democracy and allowed the wealthy donor class\u2014disproportionately white and male<\/a>\u2014to drown out the rest of our voices. In 2016, for example, 77 percent of the money spent<\/a> in competitive congressional elections and nearly half of total spending was directly traceable to past Supreme Court rulings.<\/p>\n The Court\u2019s approach enabled Trump\u2019s rise to power in at least 2 ways. As Demos President Heather McGhee explains in the foreword to the Election Law Journal\u2019s<\/em> 2016 symposium Beyond Corruption<\/em><\/a>:<\/em> New Approaches for Regulating Money in Politics<\/em>, the case law rests on the mistaken premise that the only <\/em>problem with big money in American politics is one of \u201crich donors buying politicians\u201d\u2014 or essentially, bribery. The conservative majority on the Court refuses to recognize a much larger problem: the wealthy having more say in a democracy that\u2019s supposed to embrace the principle of \u201cone person, one vote.\u201d<\/p>\n A similar line of thinking drove Trump\u2019s presidential campaign: \u201c[a]s a supposedly self-funding billionaire,\u201d McGhee wrote, \u201che claimed he could not be bribed or bought.\u201d That Trump could present himself as a walking solution to money in politics without being laughed out of the conversation was thanks in part to the way the problem of money in politics has been framed\u2014a framing that has often been laser-focused on bribery, and not on the other ways that the wealthy turn their economic clout into political power.<\/p>\n In addition, it was largely the prospect that Trump could fund his own campaign that led the press to cover him vociferously (if not take him completely seriously) when he entered the race long after many of his primary opponents had built million-dollar war chests. This critical leverage was another gift from the Supreme Court, which struck down limits on self-funding<\/a> in 1976.<\/p>\n The result is a (perhaps) billionaire in the White House and the wealthiest Cabinet in history<\/a>\u2014as well as a broader system in which community leaders without wealthy networks<\/a> are often discouraged from running for office in the first place, while Congress advances a donor-driven tax plan<\/a> designed to redistribute even more wealth to an elite, white donor class. Representative Chris Collins of New York told a reporter<\/a> a few weeks ago, \u201cMy donors are basically saying, \u2018Get it done or don\u2019t ever call me again.\u2019\u201d Senator Lindsey Graham said that<\/a> if Congress failed to pass a tax cut package, \u201cthe financial contributions will stop.\u201d<\/p>\n For several years, Demos and our partners have been working to fulfill our Constitution\u2019s democratic promise by forging a new legal order that is open to money-in-politics reforms, and marshalling the factual and legal arguments that could help the Court move in this direction. At Demos, we believe that to truly reverse course, a new approach should explicitly grapple with the value of p<\/a>olitical equality<\/a>, and how American democracy is still undermined<\/a> by our long history of race-based exclusion.<\/p>\n President Trump\u2019s control over judicial appointments has blocked progress in the federal courts in the short term. Trump\u2019s nomination of Neil Gorsuch<\/a> quickly put the lie to his campaign promises to \u201cdrain the swamp.\u201d As Demos\u2019 Heather McGhee testified<\/a> at Gorsuch\u2019s confirmation hearing before the Senate Judiciary Committee:<\/p>\n In a world where Judge Gorsuch joins a majority bloc of pro-big money justices, the vicious cycle churns ever faster. Large corporations and wealthy individuals enjoy virtually unlimited ability to translate their economic might into political power. Our legislatures and other elected offices become even more skewed by race and class; policy becomes even more tilted towards the preferences of a donor class that is disproportionately male and largely excludes people of color; and working families and people of color across the nation continue to fall behind economically and be alienated politically.<\/em><\/p>\n In addition to his Supreme Court pick, Trump\u2019s nominations to lower federal courts are also hostile to protections against big money in politics, including Judge Amul Thapar<\/a> to the Sixth Circuit, and more recently, James Ho<\/a> to the Fifth Circuit, who has openly favored abolishing all restrictions<\/a> on campaign spending, while blaming the problem of money in politics on the few remaining rules in place. To gild the lily, Trump has nominated former FEC commissioner and ardent reform opponent Matthew Petersen to a District Court seat.<\/p>\n Where do we go from here? <\/em><\/strong><\/p>\n Transforming the Court\u2019s approach will likely require shifts in personnel, and Trump has shown that positive change won\u2019t happen on his watch. It\u2019s impossible to know how long it will be before a viable window of opportunity opens\u2014although it\u2019s worth noting that if both Justices Ginsburg and Kennedy remain on the Court through 2020, it could come soon. In the meantime, lawyers and researchers can continue to develop the evidence and arguments that can provide a roadmap to future justices who are willing to follow the facts and grapple with tough questions about the relationship between capitalism and democracy<\/a>.<\/p>\n For instance, political scientists can collect empirical evidence exposing the faulty assumptions underlying the current jurisprudence.\u00a0 Examples include evidence showing that unlimited so-called \u201cindependent expenditures\u201d are actually often made by entities with close ties to candidates; examinging the prevelance of Super PACs that support a single candidate, which allow donors to evade contribution limits; and evidence demonstrating that public financing of elections\u2014such as Seattle\u2019s innovative<\/a> \u201cDemocracy Dollars\u201d system\u2014serve \u00a0public interests that run deeper than fighting crude bribery. Legal scholars can continue to develop arguments fleshing out \u201cgovernment interests\u201d beyond fighting quid pro quo<\/em> corruption and its appearance, a topic the Brennan Center summarized well in a 2015 paper<\/a> and several scholars and practitioners tackled in the Election Law Journal<\/em> symposium<\/a> referenced above.<\/p>\n The general public has a role, too. Americans wanting to help shape a better path forward should ask their U.S. senators to oppose judicial nominees who would further entrench a legal order that protects donors more than voters. At the local level, communities can support small-donor-empowerment initiatives, which help elect leaders who are responsive to the people rather than the donor class\u2014including the District of Columbia\u2019s Fair Elections Act, which has a viable path into law thanks to a community-driven<\/a> campaign (similar legislation<\/a> is pending in Congress).<\/p>\n By transforming the Supreme Court\u2019s approach and organizing on the ground, we can build a democracy in which the strength of our voices no longer depends upon the size of our wallets. This can get us a government that is truly of, by, and for the people\u2014rather than by the billionaires for the donor class.<\/p>\n *Allie Boldt is a Washington DC-based Counsel for Demos, and Adam Lioz is Counsel and Senior Advisor, Policy & Outreach for Demos.<\/p>\n","protected":false},"excerpt":{"rendered":" By Allie Boldt & Adam Lioz* The Supreme Court\u2019s flawed approach to money in politics paved the way for Trump-style 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![case after case<\/a> over the last 40 years, the Supreme Court has struck down laws designed to protect our democracy from the influence of big money. The Court manufactured a right for the wealthy and the business sector to spend billions of dollars on elections, and then protected that \u201cright\u201d at times even more vigorously than it protects our precious right to vote. This approach has warped our democracy and allowed the wealthy donor class\u2014](\"http:\/\/www.demos.org\/sites\/default\/files\/imce\/Supreme%20Court%20Big%20Money%20Attacks.png\"){kind=link}